The Supreme Court issued a landmark ruling on unsheltered homelessness in the case Johnson v. Grants Pass on June 28. In a 6-3 decision, the court ruled in favor of the city of Grants Pass, Oregon, upholding the city’s ability to arrest people for sleeping outside. The decision, which in effect allows cities to criminalize homelessness, is expected to have widespread impacts on homelessness policy.
An issue in the case is whether making or enforcing laws against sleeping on public property when no other shelter is available violates the “cruel and unusual” portion of the Eighth Amendment. Filed in 2018, the case began in Grants Pass when homeless residents Debra Blake, John Logan, and Gloria Johnson sued the city for issuing them tickets and fines of up to $295 for living outside.
The opinion, written by Justice Neil Gorsuch, states that “the Court cannot say that the punishments Grants Pass imposes here qualify as cruel and unusual.” He argues the penalties Grants Pass imposed are not meant to spread fear and other cities have ordinances to prevent public camping, meaning the ordinances cannot be considered cruel or unusual.
According to Gorsuch, the Supreme Court shouldn’t be dictating policy on homelessness, local governments should. “The Eighth Amendment … does not authorize federal judges to wrest those rights and responsibilities from the American people and in their place dictate this Nation’s homelessness policy,” he wrote.
The ruling overturns the 2018 decision from the Ninth Circuit Court of Appeals in a case known as Martin v. Boise, where the court found the Idaho city could not enforce an ordinance that banned sleeping on public property if there wasn’t available housing or shelter to accommodate unhoused people. Martin shaped how cities could respond to homeless encampments, and with it overturned, cities can now respond with more punitive measures toward those experiencing homelessness.
Justice Sonia Sotomayor wrote the dissenting opinion, where she argued bans on sleeping outside punish people for an involuntary status — homelessness — and therefore violate the Eighth Amendment.“Sleep is a biological necessity, not a crime. For some people, sleeping outside is their only option,” she wrote. Grants Pass sets a precedent that could make it easier for cities across the country to pass laws that punish the over 250,000 people currently experiencing unsheltered homelessness just for sleeping outside.
In her dissent, Sotomayor said despite the ruling, cities have no obligation to pass laws banning outdoor camping or sleeping. She outlined other legal pathways to limiting the constitutionality of laws that seek to criminalize homelessness. For example, the due process clause of the Fifth and Fourteenth Amendments can place limits on anti homelessness ordinances. The decision also does not determine whether the ordinances in Grants Pass stand under new Oregon state laws that limit the cities’ power to criminalize sleeping outside.
In a press conference held by the National Homelessness Law Center, Ed Johnson, the attorney who represented the plaintiffs in the case, emphasized there are effective approaches to homelessness that avoid criminalization. “The court specifically said that there’s nothing in their holding today that requires cities or states to ban camping at all, much less ban it everywhere at all times,” Johnson said. “My hope is that states will follow the wise policy of investing in housing and services and accessible shelter for people, and not attempt to police their way out of this crisis.”
How will this impact people experiencing homelessness in D.C.?
Theresa Silla, executive director of the District’s Interagency Council on Homelessness, said at a meeting she does not predict that the Grants Pass decision will affect how D.C. approaches encampments.
D.C. already has a no-camping ordinance in place that prohibits encampments on public and private property. However, in practice, the city does not always enforce criminalization for encampments, nor does it issue fines as punishment for camping. While the District has the authority to close any encampment at any time — and often does, with two weeks’ notice — it does not pursue criminal or civil penalties against people living in encampments and attempts to close encampments based on health and safety factors.
