LETTER TO THE EDITOR:
Supreme Court weighs in on more than just homelessness in new case
The court’s decision could further curtail several other key constitutional rights.
By JACOB SCHWESSINGER
A recent case taken up by the Supreme Court will likely have monumental ramifications for homeless people and policy across the United States. But the Court’s eventual decision may have consequences that extend far beyond homelessness.
On Jan. 12, the Supreme Court announced it would hear City of Grants Pass v. Johnson. At issue is whether the city of Grants Pass, Oregon can fine people who use blankets to sleep on public property. A failure to pay those fines can result in criminal prosecution for trespassing. Effectively, the Court will decide whether local governments can criminalize homelessness.
The case has, understandably, raised alarms among homeless rights advocates across the United States. After Grants Pass passed an ordinance that fined people sleeping on public property, several homeless people filed a class-action lawsuit against the city (Blake v. City of Grants Pass), arguing that its action was unconstitutional. This past July, the 9th U.S. Circuit Court of Appeals narrowly ruled in their favor, finding that the city had violated their Eighth Amendment right against cruel and unusual punishments.
Many have already persuasively argued that overturning the 9th Circuit’s decision could have disastrous consequences for homeless people. Criminalizing people for slipping into economic despair and losing their residences is cruel, especially in a region where housing prices continue to soar. Furthermore, a reversal of the 9th Circuit’s decision will likely give license to local governments to throw homeless people in jail for having nowhere else to sleep at night other than on public property.
This case, however, has the potential for consequences that extend far beyond homelessness. The 9th Circuit’s decision was based on the Eighth Amendment’s ban on what are often called “status crimes.” In 1962, the Court held in Robinson v. California that the Eighth Amendment’s ban on cruel and unusual punishments prevented California from enforcing a law that made it illegal to “be addicted to the use of narcotics.”
This was an important and just decision since people should not be prosecuted for statuses over which they have little control. While state and local governments could make possession of drugs illegal, they could not criminalize the status of being addicted to them. The law can and should criminalize acts, but not states of being.
This doctrine was complicated in 1967 when the Court heard Powell v. Texas. There, a four-justice plurality held that criminalizing people — even alcoholics — for being drunk in public was constitutional since alcoholics, who could not control their compulsion to drink, could still consume alcohol in their homes.
Still, five justices agreed in Powell that criminalizing acts that inevitably flowed from a status should also be unconstitutional. As Justice White wrote in a concurrence: “If it cannot be a crime to have an irresistible compulsion to use narcotics … I do not see how it can constitutionally be a crime to yield to such a compulsion.”
Although the legal effect of Powell and White’s concurrence on Eighth Amendment doctrine is contested, Justice White’s point is a convincing one. It makes sense that criminalizing acts that necessarily follow from a status should also be unconstitutional. Otherwise, the government could simply and easily circumvent the Eighth Amendment’s protection against “status crime” statutes.
The 9th Circuit intelligently applied this standard in 2006, when Los Angeles attempted to ban sleeping on public property. While the law did not criminalize being homeless directly, it did criminalize the only option for sleeping that many homeless people had. The judges stated that, so long as there were more homeless people than shelter beds available in L.A., the city could not make sleeping on public property illegal. This was a shrewd decision since sleeping in public is an act that inevitably follows from being homeless, a status that people can control no more than a narcotics addiction. This is the doctrine that Grants Pass argues should be overturned.
What should concern all of us who support the Eighth Amendment’s ban on status crimes is that the Court may issue a far broader ruling in Grants Pass than one that relates only to homelessness. Many amicus curiae briefs and Grants Pass’ petition itself do not merely argue that homelessness is not a status, but practically state that the Eighth Amendment does not ban status crimes at all.
The petition claims that “the Cruel and Unusual Punishments Clause is directed at the method or kind of punishment imposed for the violation of criminal statutes and does not apply to impositions outside the criminal process.” They all but say that Robinson was incorrectly decided, since it concerned what could be punished, not how things can be punished.
If the Court were to overturn the 9th Circuit’s decision in this way, not only would Grants Pass’ law be allowed to stand, but over 60 years of precedent that protects peoples’ statuses could be overturned. If being homeless could become illegal, one wonders: What other kinds of statuses could be criminalized? Being addicted to narcotics? Being addicted to otherwise legal drugs? Being an undocumented resident? Being mentally ill and refusing treatment? It is strange to contemplate such laws, but lifting the ban on criminalizing statuses opens the door to a wide range of worrisome possibilities.
The view that the Eighth Amendment should only apply to methods of punishment already has support from at least one current member of the court, Justice Thomas. The interpretation has also gleaned support from other originalist justices in the past, such as Justice Scalia. Moreover, Justices Barrett, Gorsuch and Kavanaugh have each publicly expressed sympathy with the originalist interpretative stance.
Given the court’s recent, monumental decisions in Dobbs v. Jackson Women’s Health Organization, which took away the right to obtain an abortion, and Students for Fair Admissions v. Harvard, which deemed affirmative action unconstitutional, it is disturbingly plausible that they could decide to overturn Robinson and the Constitution’s ban on status crimes.
Even if Robinson is not explicitly overturned, it will be effectively gutted if the Court holds that the government can be allowed to criminalize acts that inevitably follow from a status, like sleeping in public when shelters are full and one is without a place to go.
The best and only humane way for municipalities to fight homelessness is to increase the supply of housing and shelter. Asking the judiciary for permission to criminalize homelessness will not only fail to solve the problem, but may also result in the further narrowing of constitutional rights that, for now, belong to us all.
Jacob Schwessinger
Gould School of Law
Class of 2025
