Do the Homeless Have the Right to Fall Asleep?

The Biden administration is seeking to intervene in a major Supreme Court case on criminalizing homelessness, thrusting itself into a high-profile legal battle over Western states’ policies toward the homeless and whether they violate the Constitution’s ban on cruel and unusual punishment.

In a motion filed on Thursday, the Justice Department asked to participate in the court’s upcoming oral arguments in City of Grants Pass, Oregon v. Johnson. The federal government is not a direct party to the case, but the court sometimes allows the Solicitor General to brief and argue in cases that implicate major federal interests even if they are not a plaintiff or defendant.

The Justice Department’s move underscores the importance of the court’s upcoming arguments in the case. Whether the Supreme Court upholds or strikes down the city ordinances could have major implications nationwide for how cities and states address homelessness. Beyond that specific issue, it could also give the justices an opportunity to narrow or widen the scope of the Eighth Amendment’s ban on cruel and unusual punishment.

In the Johnson case, the plaintiffs are challenging a series of ordinances passed by the small Oregon city of Grants Pass in 2013. The ordinances broadly ban people from “camping” on public property, which it defines to include practically any form of sleeping under temporary shelter. Failure to abide by the ordinance can incur hundreds of dollars in fines. After more than two violations, police can arrest defendants for criminal trespass, which is punished by up to 30 days in jail. The city does not have permanent homeless shelters.

A group of homeless residents sued the city in 2018 to block enforcement of the ordinances against them, invoking the Eighth Amendment’s ban on cruel and unusual punishment. They argued that the ordinances criminalized them for the “status of homelessness.” Since humans are biologically required to sleep at some point, and since the homeless residents are involuntarily homeless, they argued that it would be unconstitutional to punish them for acts that they cannot help but commit.

The Ninth Circuit Court of Appeals ruled that the city’s ordinances were foreclosed by the appeals court’s landmark 2019 decision in Martin v. City of Boise. In Martin, a group of homeless plaintiffs had sued Idaho’s largest city to stop it from enforcing criminal provisions that made it a misdemeanor to camp in public places. They argued that since the city’s shelters only allowed them to stay for limited periods of time, and they had nowhere else to go, Boise was effectively criminalizing them for having to sleep somewhere.

A three-judge appeals panel ultimately agreed with them. It cited the Supreme Court’s ruling in Robinson v. California in 1967, where the high court struck down a state law that made it a criminal offense to be addicted to narcotics. The court, led by Justice Potter Stewart, concluded that it would be cruel and unusual to punish a person for having a medical condition—in this case, addiction. Later anti-drug laws focused on criminalizing distribution, production, and use instead. The Supreme Court ultimately declined to review Martin in 2020.

Grants Pass claimed that the Ninth Circuit’s ruling in Martin had near-apocalyptic consequences for the West Coast. “Major cities have come under sweeping classwide injunctions,” they warned in their brief for the justices. “Encampments have multiplied unchecked throughout the West because generally applicable restrictions on public camping no longer play their critical deterrent role, resulting in spikes in violent crime, drug overdoses, disease, fires, and hazardous waste.”

While Martin has affected how Western cities address homelessness, the issue existed well before the Ninth Circuit’s decision. Homelessness is a more persistent and visible issue in California and other Western states than anywhere else in the country. Most of the problem can be traced to regional housing policies: Researchers have found that the overwhelming majority of homeless people in California already lived there prior to losing their last housing, and that many of them were unable to afford to buy or rent new housing near their jobs when they became homeless.

Their argument has drawn supporting friend-of-the-court briefs from a variety of local governments and state officials throughout the Western states. The city of Los Angeles, which formally supported neither side in the case, argued that the Johnson ruling “appears to have limited the City’s ability to take individual circumstances into account and foreclosed the opportunity for prosecutorial discretion,” which it said is necessary to address the crisis.

The city of San Francisco, which was also technically neutral, told the justices that a “total ban” on public sleeping would indeed be unconstitutional. But the city also urged the court to overturn the Ninth Circuit’s ruling in Johnson has left San Francisco “unable to enforce the will of San Francisco voters, unable to allow conscientious City employees to do their jobs, and unable to protect its public spaces.” More than a dozen similar friend-of-the-court briefs make similar arguments.

The administration agreed with some aspects of the Ninth Circuit’s ruling and disagreed with others. (It also described itself as formally arguing in support of neither side.) In court filings, the federal government said it agreed with the appeals court’s ruling that the Eighth Amendment prohibits state and local officials “from effectively criminalizing the status of homelessness by completely barring individuals without access to shelter from residing in the jurisdiction.”

“For nearly three decades, the United States has taken the position that laws prohibiting sleeping in public at all times and in all places violate the Robinson principle as applied to individuals who have no access to shelter,” the Justice Department claimed. “As applied to those individuals, the laws effectively criminalize the status of homelessness because they make it impossible for someone with that status to reside in the jurisdiction without violating the law.”

The Justice Department also argued that even under Robinson, states and cities have a wide range of tools to address homelessness in their communities. But it parted ways with the Ninth Circuit’s ruling in Johnson because the court imposed “broad injunctive relief” instead of “a more particularized inquiry into the circumstances of the individuals to whom those ordinances may be applied.” It also criticized the panel for declining to define what it means to be “involuntarily homeless” and the use of aggregate statistics to determine whether the plaintiffs fell into that category.

Grants Pass did not directly ask the court to overturn Robinson; it thinks it can prevail on other grounds. At the same time, the city wouldn’t miss the 1967 precedent if it were gone: it referred to Robinson as an “aberration,” urged the justices not to extend its reasoning further, and argued that if the justices think it is necessary to overturn Robinson to decide the case, then it should do so.

The city instead argued for a narrower reading of the Eighth Amendment, claiming that Johnson did not reflect the original public understanding of it. Their originalist argument centered on founding-era poor laws and vagrancy laws, and it primarily cited a 1999 dissenting opinion by Justice Clarence Thomas where he claimed that “laws prohibiting loitering and vagrancy have been a fixture of Anglo-American law at least since the time of the Norman Conquest.”

Standing opposite them are a coalition of nonprofit groups, academics, and religious groups that urge the court to uphold the lower court’s reasoning. The U.S. Conference of Catholic Bishops, for example, disputed the originalist argument against the ordinances raised by the city. The bishops noted that the church’s teachings forbid criminalizing homelessness, and that these principles are “embedded in western tradition and shared by the Founding generation.” More specifically, the bishops also addressed founding-era vagrancy laws in their broader social and legal context.

“Rather than reflexively punish those without shelter in an attempt to remove them from their communities, as the city has done here, those laws called for ‘[l]ocal communities [to] support their poor who were unable to work,’” they noted, quoting from historical scholarship. “In fact, consistent with Catholic sentiment, ‘all colonial poor laws acknowledged a public responsibility to provide for the impoverished neighbor who was unable to work.’ Far from supporting the city, the historical statutory schemes governing the poor further evidence the Founding era’s deep-seated respect for human dignity.”

Other groups focused on scholarly research that found that criminalizing homelessness does not actually address the problem; they noted that it may actually exacerbate the issue. A brief filed by the American Psychiatric Association, the National Alliance on Mental Illness, and other associated groups warned that the city’s ordinances may be contributing to the problem that they are purportedly designed to address.

“A study of people experiencing homelessness in Seattle found that individuals with outstanding legal debt spent approximately two more years without stable housing than those without legal debt,” the organizations told the court, citing academic studies. “In addition, formerly incarcerated individuals are almost 10 times more likely to be homeless than the general public, and even a single period of incarceration makes a person seven times as likely to experience homelessness.”

The court may ultimately decide the case on more narrow grounds, as the Justice Department is arguing in its briefs. A ruling on the substance of the Eighth Amendment claim could also signal how the court’s six-justice conservative majority will approach the amendment’s scope in the future. In the 2019 case Timbs v. Indiana, the justices ruled that the Eighth Amendment’s ban on excessive fines also applies to state and local governments. But the court has also taken a much more hostile approach to defendants in recent years in death-penalty cases, which make up the bulk of the justices’ Eighth Amendment caseload.

The justices will likely decide whether to let the Justice Department participate in oral arguments on Friday. The arguments themselves are already scheduled for April 22. While the court’s ruling won’t come until before the end of June, those arguments will indicate whether the justices are ready to adopt the Ninth Circuit’s approach on a national level—or whether they will overturn Johnson and Martin to bring it back in line with the rest of the country’s approach.