Republished with permission from Governing, by Carl Smith

In Brief:

• The Supreme Court is considering whether governments have the right to enforce civil or criminal penalties for sleeping in public places.
• A lower court agreed with unhoused people in Grants Pass, Ore., that punishing them for their homeless status violates the Eighth Amendment.
• The Supreme Court’s decision might change the tone of local homeless policy, but addressing the problem effectively involves collaboration among stakeholders and an adequate supply of housing.

On Monday, the U.S. Supreme Court heard oral arguments in the most consequential case regarding homelessness to come before it in decades. The case arises out of ordinances in place in Grants Pass, Ore., that forbid sleeping in certain public spaces and camping in any public space, defining a “campsite” as any place where bedding material is present. Violations come with fines and potential criminal penalties.

It will be months before a ruling comes. The court’s decision might affect the direction of policy in some jurisdictions, but no ruling on this issue before it could be expected to get to the heart of what it will take to end homelessness.

The main constitutional question around the case is whether criminal penalties for those who have no option but to sleep outside violate the Eighth Amendment’s prohibition of cruel and unusual punishment. The U.S. Court of Appeals for the 9th Circuit ruled to that effect in 2018 in a case involving camping and disorderly conduct ordinances in Boise, Idaho.

Unhoused people living in Grants Pass who have been cited repeatedly brought a suit against the city on the basis of this decision. The federal district court in Medford agreed with them, ruling in 2020 that the city’s ordinances could not be enforced because they were unconstitutional. The city appealed, but the 9th Circuit affirmed the decision in 2022.

City officials in jurisdictions in the West, and some in law enforcement, have since complained that this ruling has stifled their ability to preserve safety and public health. It created uncertainty about what they can and can’t do to clear encampments, they say, and denied them tools for enforcing their codes.

Last August, Grants Pass petitioned the Supreme Court to review the decision by the 9th Circuit, arguing that the Eighth Amendment did not apply and that cities should be allowed to make their own choices regarding homelessness policy. The 9th Circuit ruling, the city claimed, had only made a complicated situation even more complicated.

In January, the Supreme Court agreed to hear the case. Scores of amicus briefs from government officials, law enforcement, advocates for the homeless, sociologists and businesspeople have added dense layers to the matters the court is being asked to consider.

When Is Homelessness a “Choice”?

Some of the back and forth during Monday’s oral arguments revolved around a 1962 Supreme Court decision regarding a California law that criminalized addiction. In that case, the court ruled that as an illness, addiction was a “status” and not a criminal action. Therefore, punishing it violated the Eighth Amendment.

What about homelessness? If there are no beds available, could a homeless person be considered to be choosing to be unhoused? An amicus brief filed by the California State Association of Counties — in support of Grants Pass — included the observation that there are an estimated 600 homeless persons in the city but just one shelter, with about 50 beds.

Lack of capacity is an issue throughout the country, but it wasn’t the main focus in discussion about the relevance of the 1962 decision. “A number of us, I think, are having difficulty with the distinction between status and conduct,” Chief Justice Roberts said at one point.

Attorney Kelsi Brown Corkran, arguing on behalf of the unhoused Grants Pass residents who brought the suit, expressed the view that homelessness is not something that you do, but something that you are. But Roberts seemed to be troubled by the fact that this “status” could change if a person became housed.

Justice Elena Kagan was less equivocal. “It seems like you’re criminalizing a status,” she remarked at one point to Theane Evangelis, the attorney representing Grants Pass.

Criminalizing Homelessness

However the Supreme Court rules, it won't change the nature or the scope of the problem. The nonprofit Community Solutions is working with more than 100 cities and counties to help them end homelessness. Its partners in these communities haven’t found that criminalizing homelessness or citing homeless persons is effective. “It doesn’t solve their housing problem,” says Sarae Lewis, who leads the organization’s communications and campaigns.

If the homeless don’t have money to pay fines, nonpayment can bring additional fines and fees, enough to possibly lead to their arrest. Incarceration, even for a short period, can create new barriers to becoming housed. These can include loss of a driver’s license; termination of Medicare, Medicaid or Social Security benefits; additional difficulty in obtaining employment; and rejection by landlords — even loss of a shelter bed. Vital documents such as birth certificates can be lost along the way.

And arresting people for experiencing homelessness is more expensive than housing them, says Samantha Batko, a senior fellow at the Urban Institute. Its studies have confirmed that the unhoused want housing. Fear of a civil or criminal penalty is not necessary to motivate them. Homelessness is uncomfortable, unsafe and unsanitary. What’s missing is an adequate supply of safe, affordable housing.

Building enough housing takes time, however. Mayors are under public pressure to act now. Sweeps and arrests offer a way to change the appearance of homelessness in a community, if not its reality.

Reduced to a Constitutional Issue

Mandy Chapman Semple designed and helped implement homeless response in Houston that succeeded well enough to force other cities to rethink what was possible. “What I find frustrating is that we've reduced this to a constitutional issue, without being focused on the remedy that would alleviate it from being a constitutional issue,” she says.

Getting a person to shelter is an immediate remedy, but it doesn’t resolve homelessness. The most powerful way to accomplish this is, Chapman Semple says, is to go directly to where the unhoused are sleeping, get them to permanent housing and provide the support they need to remain stably housed.

It’s difficult to address homelessness from a policing-only perspective, says Chris Hsiung, undersheriff of San Mateo County, Calif. Citations don’t address the factors that lead to homelessness. “You really need a collaborative approach that offers up resources from social services, drug addiction, education, shelters,” he says.

Whatever the court rules, it won’t change what communities ultimately are going to have to do, says Chapman Semple, which is to provide a legitimate and adequate response to homelessness. That isn’t a different goal than systematic management of public spaces, she says, but a matter of “having the will to bring all of the action together, so that you can achieve both objectives.”

Every city is required by the Federal Emergency Management Agency to have a disaster recovery plan, and Lewis says the same thing should be done for the homelessness crisis. This usually involves creating a command center, getting everyone who touches the response around a table, identifying who needs help and working through what needs to be done.

“We all want the same thing,” she says. “We all want that person off the street, so you have to build a system that can do that.”