Democrats Urge Supreme Court to Uphold Ban on Punishing Homeless for Public Camping

Democrat lawmakers support a Ninth Circuit ruling that says the Eighth Amendment forbids such prosecutions.

A sculpture called 'Authority of Law' in front of the U.S. Supreme Court building in this undated photograph. Perry Spring/iStock/Getty Images Plus

A group of Democrat lawmakers is urging the U.S. Supreme Court to uphold a lower court ruling that blocked a local government in Oregon from prosecuting homeless people for sleeping outside.

The case, City of Grants Pass v. Johnson, set to be heard later this month, arises as cities nationwide grapple with the issue of homelessness and the expansion of homeless camps, fueled by rising residential rents among other factors. The U.S. Department of Housing and Urban Development reported that more than 580,000 people experienced homelessness in 2022.

In the case at hand, the U.S. Court of Appeals for the Ninth Circuit held that Grants Pass, Oregon, was barred by the U.S. Constitution from enforcing criminal or civil penalties as part of an effort to enforce the municipality’s laws against camping on public lands.

The Eighth Amendment’s guarantee against cruel and unusual punishment means that local governments may not prosecute individuals for sleeping outdoors when no indoor space is available, the appeals court held in a decision criticized by conservative legal thinkers.

The Ninth Circuit affirmed the July 2020 ruling of U.S. Magistrate Judge Mark D. Clarke of the U.S. District Court in Oregon, who found that Grants Pass’s “policy and practice of punishing homelessness violated the Cruel and Unusual Punishment Clause of the Eighth Amendment.”

Judge Clarke held that Martin v. Boise, a Ninth Circuit decision from 2019, was a controlling precedent in the case. That ruling held that the Constitution “prohibits punishing people for engaging in unavoidable human acts, such as sleeping or resting outside when they have no access to shelter,” the judge wrote.

In Martin v. Boise, the Ninth Circuit found that “‘so long as there is a greater number of homeless individuals in [a city] than the number of available beds [in shelters],’ a city cannot punish homeless individuals for ‘involuntarily sitting, lying, and sleeping in public.’”

To “criminalize indigent, homeless people for sleeping outdoors” would be to punish them based “on the false premise they had a choice in the matter.”

The Ninth Circuit’s ruling upholding the district court’s decision is an example of “result-oriented jurisprudence at its worst, proof that an intellectually dishonest judge can reach any result he or she wants just by writing grammatically correct sentences and sprinkling in a few citations to, or quotations from, Supreme Court decisions,” according to Paul J. Larkin and Zack Smith of the conservative Heritage Foundation.

In a friend-of-the-court brief filed last week with the Supreme Court, Rep. Cori Bush (D-Mo.), and 15 other members of the U.S. House of Representatives, including Alexandria Ocasio-Cortez (D-N.Y). and Rashida Tlaib (D-Mich.), argued that homeless people should not be subjected to criminal penalties for living outdoors on public land.

Three U.S. senators, Ed Markey (D-Mass.), Elizabeth Warren (D-Mass.), and Bernie Sanders (I-Vt.), who caucuses with the Democrats, also signed onto the brief.

“Punishing poverty traps people in cycles of debt, unemployment, and hopelessness, increasing the likelihood someone will become chronically homeless, which makes the problem worse for everyone and therefore serves no legitimate penological purpose,” the brief states.

“While the members of Congress signing here agree that the political branches have at least partially failed homeless Americans by turning away from their historical role in ensuring broad access to affordable housing, this Court has never permitted a local government to inflict pain on its own innocent residents for the deliberate purpose of running them off and making them someone else’s burden.”

Studies have also demonstrated that “punishing homelessness” is ineffective, the brief states.

Criminalization “perpetuates homelessness by erecting more barriers against escaping the cycle of poverty.” Homeless people often experience worsening mental and physical health in custody, and incarceration is costly to taxpayers and makes it “even more challenging to access secure housing post-incarceration,” according to the brief.

The Biden administration, which is not a party to the appeal, asked the court for permission to participate in the oral argument on April 22, an indication that the federal government considers the case to be important.

U.S. Solicitor General Elizabeth Prelogar filed a motion on April 1 asking the justices to allow the federal government to participate in the argument.

The Supreme Court could rule on the motion at any time.

The United States argues that the Ninth Circuit correctly held that the Eighth Amendment as interpreted in the Supreme Court precedent of Robinson v. California (1962) forbids “a local government from effectively criminalizing the status of homelessness by completely barring individuals without access to shelter from residing in the jurisdiction.”

The government goes further, arguing that “the application of that principle to a particular person requires an inquiry into that person’s circumstances, and that the court of appeals erred in affirming broad injunctive relief without requiring such particularized showings.”

The government has an interest in working with states and localities “to address the problem of homelessness and to ensure that all Americans have a safe and stable place to live” and in “ensuring that the Nation’s cities can respond appropriately and humanely to public health and safety issues caused by encampments.”

The government also has an interest in making sure that constitutional provisions about criminal prosecution and punishments are properly interpreted and applied, Ms. Prelogar wrote.