The problem of homelessness cannot be solved by the courts. Only we can.
Note: All mentioned cases are linked at the end of this article.
Last week, the Supreme Court of the United States announced its decision in the Grants Pass vs. Johnson case, an appeal of a lower court decision that called the enforcement of the Oregon city’s camping laws cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution. The court ruled in favor of the city of Grants Pass, holding that enforcing those laws does not constitute cruel and unusual punishment, and homelessness is not a protected status. Predictably, some called this the criminalization of homelessness, while others hailed it as a step forward for law and order. What question did the court really resolve, and what does it mean for local governments and the homeless? The question of status is important, but the decision does not change the economics of homeless encampments.
By now, everyone in the United States is familiar with what is known as an “encampment”: a series of makeshift shelters, usually located on public or undeveloped private land. Many people find these encampments threatening, ugly, and dangerous, even if they consist of just one or two tents. Others argue that the encampments are necessary because there are no other options, and that allowing them to exist makes visible the presence of an ongoing problem; the resulting exacerbation could lead to more support for programs or housing.
The court did not resolve that question. The question it resolved last week is narrower: Is homelessness an involuntary condition like an addiction, and if local laws are passed criminalizing sleeping outside, is enforcement cruel and unusual under the Eighth Amendment? I cannot recount the nuances of that argument, but it is important to have at least a rough outline of the legal issues.
The case that started it all was Martin vs Boisea lawsuit filed by homeless people in Idaho who claimed that the ordinance banning camping was unconstitutional because there were not enough shelter options. The 9th Circuit rulingth The appeals court concluded that while a law against camping was fine, it was unenforceable if people had no other choice. In this case, Boise agreed to a settlement and built more shelters.
Later, some homeless people in Grants Pass formed a group and sued the city for passing a law that basically banned camping in public places. It is pretty clear from the record that the city’s intention was to make the situation so uncomfortable for homeless people in Grants Pass that they would go elsewhere. The law was intentionally designed to keep people on the move and unsettled. It threatened fines and jail time if a person was caught camping outdoors. The reasoning in this appeal was largely based on a case decided by the court in 1962. Robinson v. California It ruled that the enforcement of California’s law criminalizing substance abuse was cruel and unusual under the Eighth Amendment.
As I suggested above, scholars argue about every amendment, and the Eighth has its own vocal constituency. But at the heart of last week’s decision was the rejection of the idea that Robinson in short, that addiction is a condition, a potentially unchangeable quality. It is important to note that California law specifically prohibited addiction. I cannot imagine anyone (except Justice Thomas) thinking that this is logical and that punishing a person for their addiction is similar to punishing a person for their depression or remembering another time they were possessed by an evil spirit. Yet Robinson was of the opinion that drug addiction, like drug possession, was still a crime.
Robinson established the idea that a law would be a status offense if it could be clearly shown that it was a status offense. A subsequent case went a step further, arguing that it would be cruel and unusual to enforce statutory penalties when a person violates a law because of his or her status. Powell vs. Texas The case argued that the defendant in a criminal case for public drunkenness had the status of a drug addict and thus involuntarily violated public drunkenness laws; punishing Powell would be cruel and unusual given the precedent set by Robinson. But in PowellThe court rejected this, finding that even if a person has status, typical punishments for violating the laws violated are neither cruel nor unusual.
This was the question that the City of Grants Pass and many other supporters presented to the Court for clarification: Is homelessness a status like addiction, and are laws that punish the effects of that status cruel and unusual? The Court held that it did not need to address Robinson because Grants Pass did not prohibit homelessness, only camping at prohibited times and places. And the Court agreed with the City that if the law itself did not violate Robinsonand that the Eighth Amendment is essentially about punishment, not the law that defines a crime, then the Ninth Amendment isth Circuit was wrong, and Grants Pass is free to enact and enforce whatever camping laws it wants.
This decision does nothing to solve the complex problem of people in shelters, nor does it give local authorities any tools to make homeless people disappear. Think about it. Now Grants Pass or any other city can spend a significant portion of its budget chasing people down, fining them even though they can’t pay, and then buying them jail cells. This policy doesn’t end homelessness or the burden it places on people trying to get rid of it; it just creates more costs and risks for the government and the community. In areas where shelters exist and people aren’t using them, people in shelters are sending a clear message: the shelter system isn’t working, I’d rather try my luck with other people like me against the juggernaut of enforcement.
Marginal rate of substitution is an economic term that sounds complicated, and it is. There’s even a formula for it. But the idea is simple: Rational actors in a market will make decisions about what they want and what they don’t want, and if they can’t get what they want or need, they’ll choose substitutes. If emergency shelters were a real solution for people with addictions and mental illness living in tents and other makeshift shelters, people would go there. As I’ve emphasized before, survival instincts, especially banding together for a common cause, are the building blocks of civilization. We need a housing system that doesn’t require transactions or benefits to get help and shelter, but rather a system that meets people where they live today.
I am pleased with the resolution of this case. Had the court recognized homelessness as a status like addiction, this decision would have provided zero money and zero community support to develop solutions. Implementing a status without resources is an empty promise. Just look at the Fair Housing Act, passed 50 years ago to end housing discrimination. Today, the gap between white and black homeownership is wider than it was then. And giving governments the ability to “crack down” and “enforce the law” only means more costs, more suffering, and no practical results.
The decision forces us back to reality. How can we create a continuum of shelter and housing solutions that support and expand human potential to organize into communities and achieve affordable economies of scale? Can we create improvised solutions that, while not legal under building and zoning codes, are safe and healthy? Can we tolerate a world where regulations that were supposed to ensure health and safety now prevent it and force improvised shelters to meet unattainable standards? How much do we demand of people who are already traumatized and suffering, living in a tent on a vacant lot, so that they can enjoy the benefits of safe and healthy shelter? The court’s decision does not answer these questions. That is on us.
Martin vs Boise
Grants Pass vs. Johnson (9th Decision of the circuit)
Grants Pass vs. Johnson (Application letter)
Grants Pass vs. Johnson (Defendant’s brief)
Grants Pass vs. Johnson (SCOTUS decision)
Robinson v. California
Powell vs. Texas
