Cruel and Unusual

In 2018, the Ninth Circuit Court of Appeals decided in Martin v. Boise that it was unconstitutional to punish someone for sleeping on the street when there are no available emergency shelter options. Later that year, Gloria Johnson, John Logan, and Debra Blake filed a suit against the city of Grants Pass, Oregon, that established a class of “involuntary homeless,” which prevented cities and states from creating and enforcing anticamping ordinances when the number of people experiencing homelessness was greater than the number of available shelter beds.

The majority opinion ruling against the plaintiffs in Grants Pass v. Johnson is rooted in a conservative interpretation of the Eighth Amendment protection from cruel and unusual punishment. Functionally, the court seems most concerned with the ability of cities and towns to decide for themselves the best way to address homelessness. As Justice Neil Gorsuch, writing for the majority, said:

An exceptionally large number of cities and States have filed briefs in this Court reporting experiences like San Francisco’s. In the judgment of many of them, the Ninth Circuit has inappropriately “limit[ed] the tools available to local governments for tackling [what is a] complex and difficult human issue.”

These cities and states claim that their laws and ordinances against public camping and other activities are not designed to be cruel but rather to be “one important tool among others to encourage individuals experiencing homelessness to accept services and to help ensure safe and accessible sidewalks and public spaces.” This is a gentler way of saying that the trauma of encampment sweeps and crushing fines from mounting court costs may force unhoused people to accept shelter options they normally wouldn’t have.

But many states and localities rely on a patchwork network of shelter systems of varying capacities. Because of this, people living on the street often have perfectly legitimate reasons to avoid shelters, many of which cannot accommodate their health needs, force them to manage addiction in dangerous ways, or simply won’t accept pets. And that’s not to mention when shelter buildings themselves pose serious risks to residents or when shelter staff are abusive.

This all seems lost on Justice Gorsuch, who in his opinion palpably expressed exasperation at the idea that a proposed camping site in Chico, California, didn’t meet the standard of acceptable shelter:

That shelter, we are told, included “protective fencing, large water totes, handwashing stations, portable toilets, [and] a large canopy for shade.” Still, a district court enjoined the city from enforcing its public-camping ordinance. Why? Because, in that court’s view, “appropriate” shelter requires “indoo[r],” not outdoor spaces.

As it happens there was a pretty good reason why an out-of-use airport tarmac with fencing, some benches, and camping amenities did not meet the acceptable standard. In the court case Gorsuch is referencing, one of the lawyers for the plaintiff recorded ground temperatures at the site reaching 151 degrees. The judge in that case described this “shelter” as “an asphalt tarmac with no roof and no walls, no water and no electricity. It is an open space with what amounts to a large umbrella for some shade. It affords no real cover or protection to anyone.” However, in the majority’s opinion, we are worse off as a country for not allowing the local government of Chico to attempt to solve their homelessness problem with heat stroke.

The city has since constructed a new Pallet shelter village, featuring tiny homes with air conditioning and electricity. This site is a much better option than most traditional shelters, and it was only possible because the ruling in Martin v. Boise forced cities to treat their unhoused like human beings. But even this shelter is not without its flaws, and there still aren’t nearly enough units to provide shelter for all of the unhoused in the city.

Forcing cities like Chico to imagine better ways of serving their unhoused population was always the plan for Eric Tars, senior policy director for the National Homelessness Law Center, a legal advocacy organization that has been involved with this case from the beginning. “It would have been really fantastic if the court had left the Grants Pass v. Johnson and Martin v. Boise precedents in place,” Tars told Jacobin. He noted that while these cases had granted minimal protections, they helped “shift the conversation away from those politically expedient but unproductive approaches, and to put the focus back onto the policy solutions.”

The States Decide

Now that Grants Pass v. Johnson has been overturned, some cities are preparing to revisit those politically expedient solutions to homelessness, as Tars explained:

The Law Center is coordinating with some local attorneys in Pottstown, PA, where they had an injunction against [the city] for enforcing their anticamping or trespass laws against encampments in their community, because there’s literally no emergency shelter in the entire county, but they had appealed that decision to the Third Circuit. And just yesterday they filed the letter with the Third Circuit, asking for the court to dissolve the injunction based on the Supreme Court ruling.

Several cities in Pennsylvania are preparing to remove encampments with no real plan for what comes after; others, like Philadelphia, have put resources and efforts into providing more shelter options and stable housing opportunities, while still employing sweeps as a tactic to push unhoused people toward city services. Without the precedents set by Grants Pass v. Johnson and Martin v. Boise, there’s no guarantee future sweeps will be backed by adequate shelter or other resources.

In 2021, Oregon passed a law that attempted to codify the Martin and Grants Pass precedents. But the law is frustratingly ambiguous in a way that satisfies no one. It mandates that local ordinances against public sleeping and camping be “objectively reasonable”; however, this standard has never been defined. Homelessness advocates are left to hope that a judge would view “objectively reasonable” as complying with the precedent set by Grants Pass. Meanwhile, in the city of Grants Pass, “objectively reasonable” means forcing unhoused residents to move from park to park every seventy-two hours or risk fines and having their belongings confiscated. Now that the Supreme Court has ruled, a bipartisan effort has emerged in the Oregon Senate to overturn the already weak state law.

The Path Forward

Protecting the rights of the unhoused is of course a matter of harm reduction rather than a solution to the problem of homelessness. Yet the harm reduction made possible by the Martin and Grants Pass precedents was necessary because real solutions to homelessness tend to lack the necessary political backing. It’s much easier for politicians and their real-estate-owning donors to have the police sweep the problem away, while preserving property values by limiting public and high-occupancy housing.

This politically expedient path has been paved with dehumanizing narratives about the nature of homelessness. These stories cast homelessness as a consequence of personal failings or mental illness, or a condition that is the result of individuals refusing help because of some moral or intellectual deficit. We are told that addressing homelessness by simply putting people in homes would be a waste of taxpayer money.

A problem for voters who believe these narratives is that criminalizing homelessness ends up costing taxpayers more than a housing-first strategy.

“You can hide the costs in the police budget or in the jail budget, and not have to acknowledge them up front,” Tars explained. “So it makes it easier for communities to get pushed in that direction. But we know that criminalization actually costs two to three times more than it would to simply provide housing.” And recent research backs up the intuitive idea that homelessness is not driven by individual choices that can be corrected with punishment but rather by a lack of affordable housing.

It shouldn’t have required a court case to force cities to consider more effective and cheaper tactics over cruel and punitive ones. But this political context can be changed by driving awareness to the obstacles that unhoused people face and, ultimately, building the public will to demand we address homelessness through mass provision of affordable public housing. In that respect, losing the protections afforded by Grants Pass and Martin reaffirms the truth that the best way to protect the rights of the unhoused is to make housing a human right.