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“The Supreme Court on Monday was divided over a challenge to the constitutionality of ordinances in a southwest Oregon town that fines people who are homeless [for] using blankets, pillows, or cardboard boxes for protection from the elements while sleeping within the city limits. The city argued that the ordinances merely bar camping on public property by everyone, while the challengers contended that the laws effectively make it a crime to be homeless in the city and therefore violate the Constitution’s ban on cruel and unusual punishment…
“After the U.S. Court of Appeals for the 9th Circuit ruled, in a case involving Boise, Idaho, that the Eighth Amendment’s ban on cruel and unusual punishment prohibits the imposition of criminal penalties for sitting or sleeping outside by people experiencing homelessness who do not have access to shelter, three people who are homeless in Grants Pass went to court to challenge that city’s ordinances. The lower courts agreed with the challengers that enforcement of the ordinances violates the Eighth Amendment, setting the stage for the Supreme Court’s review on Monday.” SCOTUSblog
The left generally argues that criminal penalties are not the answer to homelessness, and urges additional investments to increase the supply of affordable housing.
“Fining, ticketing, or arresting unhoused people — which local governments will be more easily able to do if Grants Pass is overturned — will make it harder for homeless people, who already cannot afford shelter, to obtain permanent housing later on. Having a criminal record can make it more difficult to land a job, stable housing, and receive government benefits…
“Owing fines can exacerbate an unhoused person’s already precarious financial situation and prolong their homelessness. One study of people experiencing homelessness in Seattle found those with outstanding legal debt spent roughly two more years without stable housing than those without such debt… ‘Outstanding debt impairs households’ ability to pay security deposits to move into permanent housing and can show up in credit screening reports that landlords use to deny [applicants].’”
Rachel M. Cohen, Vox
Some argue, “Without a credible threat of sanctions against public camping, officials have little leverage to induce people to take shelter beds when they are available. Arguably, this has undermined quality of life not only for those who live or work near unsafe encampments but also for the homeless people themselves…
“In Grants Pass, people camping by the Rogue River use it for bathing, as a bathroom and for drinking water. Last May, one homeless man killed another in a park. The bigger the city, the bigger the problems. San Francisco saw more than 800 fires started by people cooking or warming themselves in homeless encampments last year. Diseases have spread, along with dangerous waste such as discarded syringes and needles… The Supreme Court can help restore order.”
Editorial Board, Washington Post
“Governments at all levels should invest in homelessness prevention programs and strategies. Those include providing housing subsidies to people who otherwise could lose their housing and supportive transitional services for those leaving mental health treatment and correctional centers. People on the brink of homelessness should have a right to counsel in eviction proceedings and should be offered the possibility of mediation in housing courts to give them a chance to remain in their houses…
“Businesses should be increasing employment opportunities by not requiring a permanent address in job applications. Lawmakers should create more pathways for people to clear their criminal records, some that arise from targeted enforcement of low-level, nonviolent offenses, because those records can make it much more difficult to get a job… And, of course, we should be building more housing, plain and simple, and we should be providing affordable housing incentives in areas with grocery stores and medical care nearby.”
Laura Riley, New York Times
The right urges the Court to strike down the 9th Circuit decision, arguing that homeless encampments are a serious problem for public health and safety.
The right urges the Court to strike down the 9th Circuit decision, arguing that homeless encampments are a serious problem for public health and safety.
“Under the Ninth Circuit’s ruling, homelessness is considered ‘involuntary’ as long as the number of vagrants exceed the available beds. When calculating the latter, the judges excluded religiously affiliated shelters as well as warming and sobering centers. Is requiring the homeless to stay sober to get shelter a constitutional violation?…
“State and local governments across the Ninth Circuit stress in friend-of-the-court briefs that its decision has made it harder to keep streets clean and help the mentally ill and drug addicts get treatment. San Francisco Mayor London Breed even led a protest at the Ninth Circuit courthouse.”
Editorial Board, Wall Street Journal
“Although the cases being considered mostly revolve around sleeping, the same logic could also apply to a lot of other behaviors. If sleeping in public is kind of like breathing in public, as Justice Kagan claimed, what about pooping in public? You can't criminalize pooping if someone has no where else to go, can you? And yet, it's obvious that having people use the sidewalks and parks as a bathroom is very sub-optimal for other residents…
“What about lighting fires? People camping outside frequently light fires for warmth and/or to cook. Staying warm is just as much of a necessity as sleeping and eating is also a necessity. Does this mean cities can't prevent the homeless from lighting fires wherever they go? It's a serious issue because homeless fires are responsible for as much as half of all calls to fire departments in cities like Portland. In Seattle, fire crews were responding to about five homeless camp fires per day.”
John Sexton, Hot Air
“Tent dwellers have a litany of excuses for turning down shelter offers: I want more privacy; I want shared accommodations for me and my partner; I want to bring in my pet; I don’t want to abide by curfews, sobriety rules, or any other behavioral expectations. San Francisco has estimated that full compliance with the Ninth Circuit’s dictates would force it to devote over one-third of its total budget to homelessness services…
“In Los Angeles County, the homeless death count has risen, of late, not only because the overall homeless population has risen but because the mortality rate is up over 50 percent since 2019, thanks to fentanyl. In San Diego County, the local homeless population is 118 times more likely to die of a drug overdose than the non-homeless…
“We should worry less about the harms associated with citing someone for camping in a park and more about the kinds of victimization to which the street homeless are routinely subjected, such as assault, theft, and rape. Cruelty reigns in encampments, and to an unusual degree; a more civilized society would put up with them less.”
Stephen Eide, National Review
A libertarian's take
“There is a much better way for judicial review to help alleviate homelessness: strike down exclusionary zoning laws under the Takings Clause of the Fifth Amendment. As a recent Pew Charitable Trusts report explains, research shows that housing costs are a major cause of homelessness, accounting for most of the increase in it in recent decades. And the biggest driver of high housing costs is exclusionary zoning: building restrictions that make it difficult or impossible to build new housing…
“This issue isn't before the Supreme Court in Grants Pass. But perhaps it will come before the justices again sooner rather than later. If so, they could give a genuine boost to the struggle against homelessness, while simultaneously also providing much-needed protection for constitutional property rights.”
Ilya Somin, Volokh Conspiracy
