By July 24, 2018, Debra Blake was banned from entering every park in the small city of Grants Pass, Oregon. Her offense was trying to find a place to sleep. A decade earlier, Blake had lost her job. Due to pre-existing disabilities, she was unable to meet the 40-hour weekly work requirement imposed by the city’s only homeless shelter. Forced to move from park to park and alley to alley in search of rest, she often awoke to the fear of detention and accruing thousands of dollars worth of fines.
Debra’s story is far from an anomaly. Across the United States, “anti-homeless” ordinances targeting sleeping in public or camping have grown by 69% in the last decade. These laws impact more than half a million people lacking housing, a growing number due to rising housing costs in metropolitan areas. In the city of Grants Pass, such measures took the form of anti-camping, anti-sleeping, and parking exclusion ordinances that penalized unhoused individuals with civil fines. The city also imposed criminal penalties of trespassing on repeat violators who continued to reside on public land.
These laws have historically raised constitutional issues. In prior cases, homeless plaintiffs have argued that they were engaging in unavoidable acts and thus, should be protected from the Eighth Amendment’s prohibition against cruel and unusual punishment. For years, the constitutionality of anti-sleeping or camping ordinances were debated in lower courts without resolution. However, after Blake and others filed a class action lawsuit against the city, the Supreme Court agreed to hear the case this year and put the issue to rest. Ultimately, the Court would rule in a 6-3 decision in favor of the city, permitting laws that punish homeless individuals to be enacted across the country.
The Supreme Court’s rationale for the ruling is manifold. This article will focus on responding to two arguments within the majority’s decision and introduce a challenge that was not addressed by the Court’s ruling. Specifically, the problematic nature of the Supreme Court’s ruling lies with the (1) narrow application of the substantive limit of the Eighth Amendment (2) misguided interpretation of legal neutrality, and (3) neglect of the Excessive Fines clause.
- Narrow Application of Substantive Limit
In its decision, the Court argues that the Eighth Amendment’s Cruel and Unusual Punishments Clause only limits the methods or kinds of punishment imposed after an individual is convicted of a crime. Under this view, the Framers intended to prevent the new nation from resorting to cruel punishments that cause “terror, pain, or disgrace” and unusual punishments that had fallen out of use by the Amendment’s adoption. In contrast, the punishments Grants Pass levied, such as fines or 30-day jail sentences, are not particularly cruel or terrorizing. The implication of this is that the Eighth Amendment does not necessarily place a substantive limit on what or whom the State can impose criminal punishments upon.
However, prior precedent shows that protections from cruel punishment are not only about the types of punishment applied post-conviction. In Robinson v. California (1962), the Court struck down a law that criminalized narcotics addiction, as it criminalizes a status rather than one’s conduct. Just like the government cannot punish someone for their race, disability, or other immutable characteristics, the ruling held that certain involuntary medical or behavioral conditions, like addiction, are also protected from criminalization. As such, the Court concedes that the Eighth Amendment imposes substantive limits on what can be made criminal and punished as such. Homelessness meets the threshold of an involuntary or protected status under the standard in Robinson, which protects conditions “contracted innocently or involuntarily.” Scholars have long-established that the problem of homelessness itself is a structural one, directly tied to lack of affordable housing, mental illness, substance use disorder, domestic violence, and other uncontrollable causes. In addition, conduct associated with homelessness, such as sleeping outside, is also involuntary as sleeping is a biologically necessary behavior. Indeed, in prior cases, such as Pottinger v. City of Miami (1992), courts have used the ratio of homeless individuals to available low-income housing or alternative shelters to evaluate if sleeping in public was involuntary. In that specific case, within the city of Miami, there were only 700 shelter beds available for over 6000 homeless individuals. As a result, unhoused individuals who lack any other affordable shelter cannot be deterred from sleeping in public through criminal punishment. Thus, the Eighth Amendment’s substantive limit should extend to protect individuals punished for their status as homeless.
- Misguided Interpretation of Legal Neutrality
The Court argues that Robinson is inapplicable because the City of Grants Pass’s ordinance criminalizes conduct, such as sleeping or camping in public spaces, rather than explicitly targeting homeless individuals. By this reasoning, a backpacker or a student engaging in public camping would be equally affected by the law.
A natural response to this point about legal neutrality is that being homeless is involuntary and means that these individuals are far more likely to violate the law than others. The Court preempts this response by invoking Powell v. Texas (1968), which ruled that even if someone is an alcoholic, they can be punished for public intoxication. The Court argues that the State should still have the authority to secure a conviction when the accused commits an act that “society has an interest in preventing”. Therefore, even if your conduct is involuntary, if it leads to harm against others, you can still be punished for it.
This argument about preventing harm may appear to supersede protecting involuntary statuses, but the Court ought to consider whether the nature of conduct is truly harmful. This is not out of the bounds of courts. Although cities and localities have long been granted police powers to deal with issues of public health and safety, these interests routinely have to be balanced with the Constitution’s protections for individual liberty and freedom. This balancing act should be considered in the case of City of Grants Pass v. Johnson. Notably, legal definition of harm is a situation where a person’s legal rights, belongings, or physical or mental health are negatively impacted or reduced. Thus, an individual sleeping in an alley or park, without disturbing others, does not meet the threshold for harmful conduct. Some municipalities argue that by enabling homeless populations to sleep in public and erect massive tent encampments, these areas attract drug use and unsanitary conditions. However, the mere act of sleeping or camping does not inherently cause drug use or unsanitary conditions. It is possible for a city to enforce drug or public health laws without restricting an individual’s ability to sleep. This distinction is supported by precedent. In cases like Johnson v. City of Dallas (1994), courts have held that public sleeping bans violated the Eighth Amendment, while regulations on trespassing, solicitation, and removal of waste were justified. Cities already have broad powers to prohibit encampments, enforce littering laws, conduct sweeps for drug use, and restrict when and where homeless residents may sleep – none of these ordinances are contradictory to the Eighth Amendment. However, by broadly penalizing individuals who rest or sleep with a blanket in public places, the city of Grants Pass is effectively criminalizing individuals for the involuntary behavior derived from the status of homelessness.
- Neglect of Excessive Fines Clause
Finally, the Court overlooks another key clause of the Eighth Amendment, which is that “excessive fines” should not be imposed. In its rationale, the Court argues that the Eighth Amendment does not protect the plaintiffs as the city is only imposing “limited fines for first-time offenders” and these fines are commonplace across the United States. However, the ordinance fails the two-part test for excessive fines established in Austin v. United States (1993). First, fines must not be punitive, as opposed to remedial or compensatory. The fines under the city’s ordinance are clearly punitive as the municipal code describes the fines as “punishment”. Furthermore, the intent and application of the law is punitive as minutes from a 2013 meeting of the city council reveal that the fines were “intended to deter homeless individuals from residing in Grants Pass.” Note that this is different from a remedial fine, like a fine for littering or property destruction, in which the goal is to rectify harm caused proportional to the cost of remediation. The second part of the test is whether the fines are excessive or disproportionate. According to United States v. Bajakajian (1998), a fine violates the Eighth Amendment if it is “grossly disproportional to the gravity of a defendant’s offense.” Notably, the anti-camping ordinances enforced by the city charge violators an automatic minimum fine of $295, which then increases to $537.60 when unpaid. These fines are excessive, especially considering the monthly income of homeless individuals is around $590. The inability to pay a fine is directly tied to its excessiveness. Scholar Beth Colgan wrote in “Reviving the Excessive Fines Clause” that the Eighth Amendment’s language is derived from the English Bill of Rights, which states that “no man shall have a larger amercement imposed upon him, than his circumstances or personal estate will bear.” This principle was reinforced in Timbs v. Indiana (2019) where the Supreme Court ruled that an individual’s economic means are a critical consideration in assessing the magnitude of a punishment. Employing this historical analysis and precedent, we can conclude that the fines imposed on homeless individuals are excessive as they impact individuals who already lack income for shelter and cause further cascading effects that deepen poverty.
The case of City of Grants Pass v. Johnson rests many of its arguments on incomplete interpretations of the Eighth Amendment and punishes individuals lacking financial stability for exercising life-sustaining behavior. Punishing people for trying to find a place to sleep is not only counterproductive and inhumane, it’s unconstitutional.