There is a homelessness epidemic in America. There are close to 600,000 homeless people — roughly 18 out of every 10,000 people. Homelessness presents an urgent public health issue and a significant humanitarian challenge. It impacts cities, suburbs and rural towns in every state and presents significant budgetary challenges. And then there is the disturbing reality that people who experience homelessness die nearly 30 years earlier than the average American, often from easily treatable illnesses.
While there is debate over the most common causes of homelessness, there is near-universal agreement that it is an issue that needs to be addressed. But how far can a city or town go in trying to address a homelessness challenge? Can they simply prohibit public camping or prohibit sleeping in public? And if so, must the city provide a housing alternative for the homeless person prohibited from sleeping in public, or must the homeless person simply move to another, more receptive venue, or face punishment for violating the local ordinance?
Last week, the Supreme Court agreed to review a decision by the U.S. Court of Appeals for the Ninth Circuit that prohibited the Oregon town of Grants Pass from enforcing “anti-camping” laws on public property — a move everyone agrees was designed to discourage homeless people from staying in Grants Pass. According to the Ninth Circuit, the constitutional prohibition against “cruel and unusual punishment” prohibits cities from arresting or imposing penalties on homeless people for camping or sleeping on public property if there aren’t enough shelter beds in the town to accommodate every vagrant.
The Eighth Amendment to the Constitution provides that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” As a general proposition, the cruel and unusual punishment clause has been discussed in the context of the method or kind of punishment imposed for the violation of criminal statutes. But it could also be used to set limits on what can be made a crime, as opposed to how a crime should be punished.
The Ninth Circuit concluded that the cruel and unusual punishment clause effectively protects the conduct of camping on public property where the homeless person has nowhere else to go. That decision conflicts with rulings of the California Supreme Court and U.S. Court of Appeals for the Eleventh Circuit, which have upheld virtually identical ordinances against similar challenges. And there is a separate divide between the lower courts on the question of whether a government may punish compulsive behavior that stems from a status (like homelessness) in the same manner that it may punish criminal acts (like drug use and sex with minors), even if it cannot punish the status of the actor (like being a drug addict or pedophile).
While all eyes will be on the Supreme Court to see how it decides these issues, the sideshow of more liberal cities like Los Angeles, San Francisco and Phoenix (all within the Ninth Circuit) and the governor of California joining in opposition to the Ninth Circuit’s ruling has not gone unnoticed. And their challenge that “courts are not well-suited to micromanage such nuanced policy issues based on ill-defined rules” may come back to bite them in other progressive causes they support.
