The U.S. Supreme Court heard oral arguments on Monday, April 22, 2024, in a case challenging the constitutionality of anti-camping ordinances enforced against the homeless. The parties asked to court to determine whether enforcing the ordinance violates the Eighth Amendment’s bar on cruel and unusual punishments.
The case came on appeal from the Ninth Circuit, which held that enforcing the ordinance is unconstitutional if the number of homeless people exceeds the number of available shelter beds.
The ordinance, enacted by the petitioner Grants Pass, Oregon, prohibits “occupy[ing] a campsite” on public property, including a park. “Campsite” is defined as “any place where bedding, sleeping bag, or other material used for bedding purposes . . . is placed.”
Individuals violating the ordinance face a maximum civil penalty of $537.60, which includes a failure-to-pay penalty. Habitual violators are subject to incarceration for criminal trespass.
The Ninth Circuit held that the Eighth Amendment prohibits punishing a person for having an involuntary status like homelessness during a shelter bed shortage.
The Ninth Circuit found support for this position in the U.S. Supreme Court decision Robinson v. California (1962), a challenge to a California law criminalizing drug addiction.
The Robinson Court held that the government may not criminalize the status of being a drug addict even though it may criminalize the conduct of drug use.
Grants Pass countered that while homelessness may be a status, sleeping in public—even if a logical necessity of that status—is conduct within the reach of the city’s police power.
Grants Pass further argued that, with the exception of Robinson, the Eighth Amendment’s ban on cruel and unusual punishment has historically only applied to what punishments may be imposed for a crime, not what conduct may be criminalized.
Oral arguments focused heavily on the distinction between status and related conduct as well as prohibitions on engaging in biological necessities in public, like sleeping and eating.
Justice Elena Kagan told Grants Pass’s counsel, Theane Evangelis, that “it seems like you’re criminalizing a status,” homelessness, because “we only come up with this problem for a person who is homeless, who has the status of homelessness, who has no other place to sleep.”
Justice Ketanji Brown Jackson followed up, asking Evangelis to explain why the ordinance did not target status.
Evangelis replied that, unlike in Robinson, the ordinance prohibited an act—sleeping in public—not a status—drug addiction.
Justice Brown continued this line of inquiry with the example of a hypothetical ordinance prohibiting eating in public to prevent “problems with trash and rodents and the like.”
Justice Jackson asked Evangelis whether that ordinance, covering “a human necessity” like eating, would violate the Eighth Amendment as applied to people who had nowhere else to eat, such as the homeless.
“I think the Eighth Amendment is the wrong way to look at it,” Evangelis replied. “Someone might have a [Fourteenth Amendment] due process challenge to a law like that if there is a deeply entrenched liberty interest.”
Edwin Kneedler, the Deputy U.S. Solicitor General, represented the United States at oral arguments supporting neither party.
The Chief Justice continued the inquiry with Kneedler into conduct that results from a biological necessity, asking, “if someone is hungry and no one is giving him food, can you prosecute him if he breaks into a store to get something to eat?”
“Absolutely, absolutely. Breaking into — into a store is a common crime that not everyone engages in, unlike sleeping,” Kneedler replied.
Kelsi Corkran represented the respondents, Gloria Johnson and other homeless individuals. Corkran argued that the ordinance had the “purpose and effect . . . to make people with a status [of homelessness] endlessly and unavoidably punishable if they don’t leave Grants Pass.”
Justice Clarence Thomas was the first to question Corkran: “Is there an ordinance here that says ‘to be homeless’ is a crime?”
“So the language . . . bakes homelessness into the — the definition of the offense” because homelessness is by definition not having a fixed address, Corkran replied.
Justice Neil Gorsuch refocused the inquiry on the historical understanding of the Eighth Amendment and perceived deficiencies in Robinson:
Robinson’s Eighth Amendment holding . . . didn’t have a whole lot of citation or support, it came kind of in a breezy paragraph.
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And some have suggested that that’s really a mistake because the Eighth Amendment’s about punishments. It doesn’t prevent states — limit states’ capacity to engage in passing laws that make conduct or actions or anything a crime. It just goes to the nature of what punishments follow.
Justice Gorsuch instead suggested that the Fourteenth Amendment, with its guarantee of due process, might be a better vehicle for resolving the dispute at issue.
To that end, Justice Gorsuch highlighted the defense of necessity, which “has been always understood as inhering in due process from the founding.”
Oral argument transcript:
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