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WILL THE SUPREME COURT MAKE HOMELESSNESS A CRIME?  
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Abby Vesoulis
April 22, 2024
Mother Jones
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_ Unhoused people in Grants Pass were arrested for sleeping outside,
but there was nowhere else for them to go. _

Unhoused senior citizens Kim Morris and Kevin Gevas call a homeless
advocate from Mint at Tussing Park in Grants Pass, Oregon on Thursday
March 28, 2024., Melina Mara/The Washington Post/Getty

 

Helen Cruz has been a resident of Grants Pass, Oregon, for roughly
four decades, but for the last five of those years, she’s had no
home in which to live. She’s not alone. Her small mountain town with
a population of 39,189 provides no public homeless shelters. She is
among up to 600 people experiencing homelessness in that community.

On Monday, the Supreme Court heard oral arguments about their disputed
right to sleep outside. At issue is an effort from 2013, when Grants
Pass attempted to address the town’s burgeoning number of unhoused
people by fining and subsequently issuing trespass orders with
criminal penalties for sleeping in the park with as little as a
blanket. By the end of June, the justices will issue a decision on the
case that may determine whether their situation of being unhoused with
no place to go is a protected constitutional status—or a crime.

Some of the court’s conservative justices seemed moderately
sympathetic to the position of Grants Pass. Chief Justice John Roberts
inquired whether the ordinances in the city would be permissible if a
surrounding town had vacant shelter beds. The court’s eventual
decision may very well reverberate outside of Grants Pass to affect
the more than 650,000 people who are homeless at any given time in the
United States. If the justices give Grants Pass the go-ahead to
criminalize homelessness, other towns and cities may also opt to
follow suit. As Justice Sonia Sotomayor put it: “Where do we put
them, if every city, every village, every town, lacks compassion, and
passes a law identical to this? Where are they supposed to sleep?” 

Even as someone who is employed regularly as a house cleaner,
49-year-old Cruz has not been able to make it work. She can’t afford
a hotel or an apartment, much less the $295-plus tickets the city
slapped her with for sleeping in the parks. When the city’s unhoused
people returned to sleep in the park after receiving tickets, city
code allowed police to arrest them. The unpaid fines sank their credit
scores and the jail stays showed up on background checks, further
adding to the obstacles they faced when seeking stable employment and
permanent housing.

“Those kinds of punishments not only don’t end homelessness or
move us toward a solution; they move us in directly the wrong
direction,” says Ed Johnson, Oregon Law Center’s director of
litigation, who first sued Grants Pass over the fines. “They make
matters worse, and they increase the number of people who are unable
to escape homelessness.”

Despite a consensus among housing experts that civil and criminal
penalties are counterproductive, conservative and liberal local
governments alike are turning to them in an attempt to appease
critics of homelessness in their communities without addressing its
underlying causes, chief among them being the lack of affordable
housing.

America has 7.3 million fewer [[link removed]] affordable
rental units than demand requires. A record-breaking 22.4 million
renters
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spend more of their incomes on rent and utilities than the government
deems financially prudent. This supply-and-demand imbalance has pushed
more people towards a housing instability cliff. On one night in
January 2023, more than 650,000 Americans
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were found to be experiencing homelessness, the highest point-in-time
count since 2007 when the Department of Housing and Urban Development
(HUD) started tracking the numbers.

As a result, “Homelessness has become a much more visible problem.
And elected officials are put into this position where they are being
publicly pressured to be seen as doing something about the problem,”
says Ann Oliva, CEO of the National Alliance to End Homelessness.
“What we’re seeing is political rather than strategic reactions,
because we know that criminalization doesn’t work.” 

Or, as Cruz notes, “They would rather push us all out of town, make
sure that we don’t exist, or bury their head in the sand.”

A legal aid veteran of almost 30 years, Johnson started hearing about
unhoused people being fined and arrested in Grants Pass around 2016.
When he visited the parks to talk to those living outside, he was
stunned to learn the rumors were true. “They were awakened in the
middle of the night by police and told that there was no place in town
where they were allowed to be,” Johnson says. “They weren’t idle
threats. People actually got tickets and fines and were arrested and
sent to jail for criminal trespass.”

In 2018, Oregon Law Center officially filed a class-action lawsuit
against the city on behalf of an unhoused woman named Debra Blake,
plus “all others similarly situated.” (Blake died at age 62 in
2021. The case has been renamed for two other unhoused Grants Pass
residents.) As the case made it through the legal system, Johnson and
his team found proof during the discovery process that the city had
intended to make life so unworkable for homeless people that they
would be forced to move out of town.

In 2013, Johnson says, city leaders held a roundtable about what they
perceived as a vagrancy problem in its parks. Their punch list of
ideas included providing bus fare to homeless people to send them
elsewhere, posting “Most Unwanted” signs around town, and issuing
fines. 

“All of the ideas that were voiced at this roundtable were
mean-spirited ideas to get rid of people,” says Johnson. None of
them involved “how they might help people who were residents of
Grants Pass before they were priced out of the market.”

Grants Pass settled on fining people who had created campsites in
city parks, with “campsite” defined loosely to include any set-up
where “bedding, [a] sleeping bag, or other material used for bedding
purposes” is used, according to the city’s municipal code.
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Having a single pillow or blanket meets this description, Johnson
says. 

A first offense resulted in a $295 fine. If unpaid, the second fine
increased to $538. “It costs more than a Hilton to camp in the
park,” Brodia Minter, who is Cruz’s public defender, tells me.
After two or more citations in one year, police could ban people from
the parks. People found camping in parks after being banned were
prosecuted and sometimes imprisoned for criminal trespass. Each count
of criminal trespass triggered up to 30 days in jail and a $1,250
fine. In addition, the Grants Pass municipal code banned sleeping on
public streets, sidewalks, and alleyways. Violations of this ordinance
also resulted in fines.  

 
“The city calls it camping,” says Johnson. “But they defined
camping in such a way that it means trying to stay warm and dry so
that you don’t die of hypothermia. For people living outside,
there’s no way they could avoid violating this law.”
 
There were few alternatives. The median price for a one-bedroom
apartment there is $1,250 a month, but the median per capita income is
just $30,649. This means an average individual can expect to spend at
least half of their income, before taxes, on rent alone—making them
“severely rent-burdened,” according to HUD. While Grants Pass is
home to one Christian-run overnight shelter for adults, it only has
about 100 beds. To stay there, individuals must attend daily religious
services
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and refrain from using drugs, alcohol, or nicotine. Pets, including
service animals, are also prohibited
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“There’s literally no housing,” says Jesse Rabinowitz, campaign
and communications director at the National Homelessness Law Center.
“So much of this case is rooted in the idea that if we punish
people, they’ll choose not to be homeless, and nothing could be
further from the truth.”

If the fines were designed to motivate Cruz to stop being homeless in
theory, the effect in reality is exactly the opposite. “What keeps
you from getting ahead when you’re living in a tent is the fact that
you don’t have a way to keep your food, so you have to buy food
every single day. You don’t have power, so you have to buy
batteries. You have to spend lots of money every single day just to be
able to survive,” Cruz explains. “The things that people take for
granted, like turning on a light switch, opening the refrigerator,
cooking a meal—I don’t have that out there.”

The quick solution to acute homelessness is providing unhoused people
access to low-barrier shelter and human services so they can rebuild
their lives. But the root challenge lies in helping people before they
get to that point. The long-term solution is increasing the housing
supply, creating a permanent emergency rental assistance program, and
expanding income-based housing help. 

There’s proof that direct services are highly effective. During the
Obama Administration, a 2009 recession-prompted stimulus package
created a $1.5 billion fund for a three-year Homeless Prevention and
Rapid-Rehousing Program (HPRP). During the program’s second year,
HPRP prevented
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and ended homelessness for over 670,000 children and adults. HPRP
provided financial assistance for up to 18 months, but roughly a third
were in the program for less than 30 days. Upon exiting HPRP, 89
percent of participants who had previously been on the brink of
homelessness were in stable, permanent housing; 82 percent of
already-homeless people who received rapid rehousing help found
permanent housing before graduating from the program.

Demonstrators appear at a protest outside the Supreme Court in
Washington, DC, as the Court hears _City of Grants Pass v. Johnson, _a
case that could make it illegal to sleep outside.

Photo by SAUL LOEB / AFP) (Photo by SAUL LOEB/AFP via Getty Images

“It’s just a matter of the political will—of putting resources
into those solutions at the scale that’s needed. That’s really the
biggest barrier here,” says Sarah Saadian, senior vice president of
public policy at the National Low Income Housing Coalition. “Not,
‘Do we not know what the solutions are?'”

Lawyers for the unhoused people in Grants Pass argue in briefs
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the penalty system and inflicting punishment on unhoused people
isn’t just ineffective, it also violates the Eighth Amendment’s
protections from excessive bail, excessive fines, and “cruel and
unusual punishments.” They point to the 1962 case of _Robinson v.
California_, in which the Supreme Court found that the mere status of
drug addiction could not be criminally punished if it were not
connected to a concrete instance of use, possession, or distribution.
A concurring judgment to that opinion argued that drug addiction may
be involuntary; it’s often born of a societal problem, not
necessarily a personal one, which is how most housing experts view
homelessness.

 

A three-judge panel from the Ninth Circuit agreed in 2022, ruling,
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of Grants Pass cannot, consistent with the Eighth Amendment, enforce
its anti-camping ordinances against homeless persons for the mere act
of sleeping outside.”
Attorneys for Grants Pass refuted the Ninth Circuit’s interpretation
of the Eighth Amendment, which is why they appealed to the Supreme
Court. “The Amendment’s three clauses set limits on bail, fines,
and punishments,” lawyers for Grants Pass argue
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do not prescribe which conduct governments may deem unlawful in the
first place.”

The Supreme Court justices spent much of their time examining conduct.
While sleeping might be a form of conduct, Justice Elena Kagan argued
that for a person who is homeless and has no place to shelter,
“sleeping in public is like breathing.” A lawyer for Grants Pass
acknowledged the policy issue was complicated but cited public safety
as a reason for the city’s penalty system. “There is harm in
simply camping,” said the lawyer. “There is harm to the whole city
and the whole community, as well as to them. We know that encampments
in these conditions breed crime.”

Housing experts, however, reject that argument. “People experiencing
homelessness are much more likely to be the victims of crime than they
are to be the perpetrators of crime,” says Oliva, from the National
Alliance to End Homelessness. “That said, if there is some sort of
criminal activity happening in an area where people are staying,
there’s no reason for the police not to address that specific
criminal activity that has—in many cases—nothing really to do with
the encampment itself.”

Another argument for Grants Pass is that this lawsuit and previous
ones ruling in favor of unhoused peoples’ rights have tied the hands
of governments to address homelessness in any manner. In 2018, the
Ninth Circuit ruled
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in _Martin v. Boise_ that criminal penalties for public sleeping bans
in Idaho when there were insufficient shelter beds were
unconstitutional. In a 2023 amicus brief
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supporting Grants Pass, California Governor Gavin Newsom pointed to
downstream effects on Santa Barbara. When the Southern California city
attempted to impose a time-limited ban against sleeping in the
downtown area only, a district court held that the plaintiffs had a
plausible _Martin_ claim. 

“Courts have stretched _Martin’s_ reasonable limit into an
insurmountable roadblock,” Newsom wrote,
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“preventing cities and towns from imposing common-sense time and
place restrictions to keep streets safe and to move those experiencing
homelessness into shelter.”

Yet housing experts say cities still have several mechanisms for
addressing homelessness under the Ninth Circuit’s interpretation.
The appellate court was clear that its earlier decision in _Martin v.
Boise _did not mean a city was obligated to provide physical shelter
for every homeless person, nor that people were allowed to sleep
anywhere and for any length of time.

“An ordinance prohibiting sitting, lying, or sleeping outside at
particular times or in particular locations might well be
constitutionally permissible,” the Ninth Circuit wrote.

Some cities have found success in banning “daytime” camping
between 8 a.m. and 8 p.m., requiring unhoused people to pack up their
stuff daily before returning at night. Others have created “legal
campgrounds” in an attempt to force homeless people to cluster in an
area deemed less in the way.

The Supreme Court may clarify these enforcement practices are indeed
legal. But whatever the high court finally rules, the crisis of
homelessness is unlikely to abate, including for Cruz. All she wants
from the court is to clarify that being unhoused when there is nowhere
else for her to go does not make her a criminal. “Just because
there’s no white picket fence and there’s no nice clothes,” she
says, “doesn’t mean that we’re not human.”

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* Supreme Court and Homelessness; Grants Pass Criminalizing
Homelessness;
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