Cruel and Unusual: The Harm Enacted Against the Homeless in Grants Pass v. Johnson (2024)

Grants Pass is a city in Oregon with numerous homeless citizens. As of 2020, the encompassing county had over 870 inhabitants who experienced homelessness, which is the highest number of all counties in Oregon [1]. To address homelessness in the county, Grants Pass enacted five ordinances that penalized sheltering in public spaces [2]. In 2018, the instituted ordinances prompted two homeless citizens of Grants Pass to sue the city, and the case reached the Ninth Circuit Court of Appeals. The Ninth Circuit ruled in favor of the plaintiffs, but Grants Pass appealed the decision [3]. The case was then argued in front of the United States Supreme Court. In City of Grants Pass v. Johnson (2024), the Supreme Court ruled in favor of Grants Pass, holding that the penalization of sleeping and camping in public spaces is constitutional, even if there are no open shelters [4].This article will explore the legal journey leading to the Supreme Court's ruling, the rationale behind the decision, its social and racial implications, and potential paths forward. In the majority opinion released by the Supreme Court Justices who deemed the laws in Grants Pass constitutional, they refuted the assertion that laws penalizing homeless individuals constitute cruel and unusual punishment. However, the majority opinion discounts the involuntariness of homelessness and the effects of anti-homeless legislation that ultimately lead to superfluous punishment enforced against the unhoused. Once Grants Pass was sued for its anti-homeless restrictions, the case was initially argued before the Ninth Circuit Court. The Ninth Circuit deemed the series of ordinances illegal, claiming that penalizing the involuntarily homeless—the homeless in locations where the number of homeless people exceeds the number of available beds—is cruel and unusual punishment under the Eighth Amendment of the Constitution [5]. Martin v. City of Boise (2018) served as a precedent, which prohibited the city of Boise, Idaho from enacting ordinances that criminalized sleeping in public when a person lacked other options [6]. The city of Grants Pass appealed, and the Supreme Court heard the case in April 2024 [7]. Ultimately, the Supreme Court disagreed with the Ninth Circuit and ruled in favor of Grants Pass. The majority opinion opposes the assertion that penalizing homeless individuals for residing in public spaces constitutes cruel and unusual punishment. The majority lists several precedents in coming to their rejection of homeless individuals' rights to shelter in common areas: Robinson v. California (1962), Powell v. Texas (1967), and Martin v. City of Boise [8]. In Robinson v. California, the state of California passed a statute that criminalized the state of being addicted to narcotics [9]. The Supreme Court ruled that this was unconstitutional; it violated the Eighth Amendment by imprisoning people for being addicted to drugs [10]. Supreme Court Justice Gorsuch argued that Robinson v. California does not apply to Grants Pass v. Johnson, distinguishing between a law that penalizes a condition and a law that penalizes actions related to a condition [11]. He reasons that the ordinances passed by Grants Pass do not punish the state of homelessness but actions taken by people who are homeless. Justice Gorsuch references Powell v. Texas (1967) to explain his argument. In Powell v. Texas, Leroy Powell appealed his arrest for public intoxication, citing his alcoholism as a defense [12]. Powell claimed that his intoxicated actions were involuntary, so punishing him would be cruel and unusual punishment [13]. The Supreme Court ruled against Powell, holding that alcoholism does not inhibit a person’s ability to control their actions [14]. Justice Gorsuch applies this reasoning to Grants Pass v. Johnson. Although the plaintiffs in Grants Pass were experiencing homelessness, they still acted with mens rea, or intent [15]. Finally, because Martin v. City of Boise was pertinent to the Ninth Circuit’s ruling, Justice Gorsuch includes several references to the case. Similar to Grants Pass v. Johnson, Martin v. City of Boise examined whether it is considered cruel and unusual punishment to enact legal consequences when homeless people seek shelter in public spaces [16]. The Ninth Circuit ruled that laws that penalize taking refuge in civic areas when there are no other options constitute cruel and unusual punishment [17]. Justice Gorsuch finds this ruling problematic. He writes that it restricts cities' actions and leaves many questions unanswered, such as what defines shelter availability [18]. Accordingly, he concludes that the Ninth Circuit’s decision makes the legal standard for acceptable homeless legislation ambiguous, which Gorsuch believes results from the decision’s lack of “secure guidance in the Constitution” [19]. Gorsuch’s interpretations of these cases support the majority opinion’s argument, concurring that preventing governments from enacting solutions to the homelessness crisis has no basis in the Constitution, and the Cruel and Unusual Punishment Clause has no application to legislation on homelessness. Nevertheless, the Supreme Court’s rationale for ruling in favor of Grants Pass does not account for the involuntariness of homelessness. Indeed, Gorsuch's differentiation process between "intent" and "condition" when referencing Powell v. Texas can not be applied to homeless citizens. The state of homelessness inevitably leads many homeless individuals to rest in public spaces [20]. The intention is blurred in the condition because seeking rest or shelter is not driven by a deliberate choice but rather dictated by the unavoidable reality of homelessness. Thus, the homeless citizens of Grants Pass had no choice but to make shelter in public spaces, supported by the fact that the number of homeless people in the city exceeded the availability of homeless shelters [21]. The opinion delivered by Justice Gorsuch reasoned that Grants Pass’ laws that penalize sleeping in public places do not violate the Eighth Amendment because the Eighth Amendment does not prohibit the imposition of punishment, only the type of punishment [22]. However, enacting fines and jail time against the homeless is ultimately a punishment for the condition of homelessness. Homeless individuals typically lack resources and financial stability, so required fines further their economic struggles and augment the duration of their homelessness [23]. Similarly, imprisonment drastically impacts homeless people. Incarceration increases the risk of homelessness and homelessness increases the risk of imprisonment; both factors come together to create a “revolving door” effect, where a person is released from prison but gets arrested again [24]. Having a criminal background also curtails many opportunities that a person experiencing homelessness may receive [25]. Evidently, laws that penalize homelessness keep the homeless in a cycle that is very difficult to escape. This is especially egregious because these laws create consequences for those taking care of their basic needs, lacking regard for the unavailability of homeless shelters. Thus, in this circumstance, criminalizing the act of sheltering in public constitutes cruel and unusual punishment. Life, liberty, and the pursuit of happiness. When creating the legal framework for the United States, the Founding Fathers prioritized these principles, naming them unalienable rights [26]. One of the main reasons for creating the Constitution of the United States was to “promote the general Welfare,” which includes all people of the United States [27]. Among the most crucial aspects of life is the ability to eat and sleep. The recent decision by the Supreme Court in City of Grants Pass v. Johnson threatens these principles. By upholding the ability of Grants Pass to create and enforce anti-homeless laws, the Supreme Court denies unhoused people life, liberty, the pursuit of happiness, and general welfare. Refusing the homeless the right to live and care for themselves in public spaces when they lack alternative options does not align with the ideals upon which the country was built. Instead, it violates the Eighth Amendment of the Constitution, which prohibits the government from imposing cruel and unusual punishment [28]. The ruling of Grants Pass v. Johnson will drastically affect the lives of many homeless people in the United States. Homelessness in America is increasing; approximately 50% of all Americans live one crisis away from being homeless [29] [30]. An unexpected hospital visit, a familial death, a car repair bill, or any unplanned situation could thrust many Americans into homelessness. This is especially true of Black Americans. Of all people experiencing homelessness, a disproportionate amount are Black. 42% of the homeless in the United States identify as African American [31]. The ruling in Grants Pass v. Johnson will result in the arrests of more Black Americans for the victimless crime of existing in public across the United States. Historically, Black Americans have been disproportionately subject to the criminal justice system. From 2017 to 2021, Black men received sentences that were 13% longer than the sentences of their white counterparts who committed the same crimes [32]. It is reasonable to assume that the bias causing this sentencing disparity will continue to affect Black Americans arrested for violating the anti-homeless laws that Grants Pass v. Johnson permits. Additionally, recidivism plagues formerly incarcerated Black Americans. Black former inmates are more likely to be rearrested after release from prison than white former inmates [33]. They typically face more barriers to successful reentry into society than white ex-prisoners, including socioeconomic, educational, and occupational disadvantages [34]. These barriers are amplified for Black homeless individuals who are released from prison because they lack stable access to shelter. State laws that result from this decision will devastate the Black homeless community, furthering economic and imprisonment racial disparities. Several actions can be taken to resolve this issue by mitigating the cruelty of punishing the involuntarily homeless for making shelter in public places. An ideal solution would be for the Supreme Court to review and overturn this decision. Overturning the decision will protect the rights of the homeless to live, without being unduly punished for existing in public now that states have the right to enact laws punishing homelessness in public domains. However, the likelihood of this being overturned is minimal and would take several years. The Supreme Court rarely overturns decisions within a few years after making them. The fastest that the Supreme Court overturned a case is 3 years [35] [36]. Additionally, six of the nine current Justices skew conservative and prefer a strict interpretation of the Constitution [37]. They believe that the states should have a broad range of powers that the federal government and court system can minimally limit. As a result, except in egregious instances, the current Supreme Court is unlikely to rule against local laws that penalize the actions of the homeless in future cases. Another option is for states to legislate laws that will enshrine the rights of the homeless to protect their basic needs, even if they cannot find viable shelter. On one hand, this solution allows states to exercise full autonomy, allowing them to consider factors unique to the state. The knowledge each state has about its citizens can help them personalize laws to mitigate the problems that homeless people face without penalizing them. However, this solution faces several drawbacks. Most importantly, not all states will create laws that protect the homeless. Many will continue to pass restrictive laws like those in Grants Pass. For example, in the wake of Grants Pass v. Johnson, several public officials have expressed their readiness to pass laws restricting the homeless [38] [39]. The mayor of San Francisco has stated that she intends to “be a lot more aggressive” to remove homeless people from public places [40]. Outside of the Ninth Circuit, where states were generally unaffected by the Ninth Circuit’s original ruling that penalizing the involuntarily homeless was unconstitutional, laws are already in place that severely restrict the actions that homeless people can take to fulfill their corporal needs. In 2023, Texas passed legislation that criminalizes taking shelter in locations without authorization [41]. Anyone violating this penal code can be arrested for a misdemeanor, and there are no exceptions for instances where local homeless shelters are unavailable. Thus, relying on the power of the states to protect homeless rights is likely to be ineffective. In conclusion, the decision in Grants Pass v. Johnson will gravely shape the treatment of the homeless in the United States, primarily impacting the Black homeless population. By supporting laws that prevent homeless people from exercising their unalienable right to life, the Supreme Court exposes individuals suffering from homelessness to a myriad of negative consequences. For the crime of existing while homeless, people will be sent to prison or forced to pay fines they cannot afford. Instead of helping those without homes reintegrate into society, the cities and states that impose harsh restrictions will worsen the situation that many homeless people face. Recidivism rates will keep many homeless people cycling through the criminal justice system, unable to resolve their situations [42]. Black Americans specifically will disproportionately be impacted. Many people who experience homelessness will fall prey to the revolving door effect, from prison to homelessness once again. Although there are several potential solutions, they are unlikely to be enacted. The Supreme Court could overturn their decision, but the current Justices’ tendency to rule conservatively suggests that this is unlikely—the court comprises mostly conservative judges who favor a strict reading of the Constitution. The states could act independently to protect the rights of the homeless, but once again, this solution is unlikely in many states. Without federal oversight to protect homeless individuals, there will be wavering treatment of the homeless across the country. Some states may protect the homeless while others deny their basic rights. One can hope for a more equitable outcome, but realistically, the governmental treatment of those experiencing homelessness will worsen in many states. The Supreme Court’s decision in Grants Pass v. Johnson will have lasting effects on American society. A solution is unlikely to come in the near future.

 

[1] “FAQs: How Many People Are Houseless in Josephine County?” Grants Pass, Oregon. Accessed October 29, 2024. https://www.grantspassoregon.gov/Faq.aspx?QID=267.

[2] Johnson et al. v. City of Grants Pass (United States Court of Appeals for the Ninth Circuit September 28, 2022). https://cdn.ca9.uscourts.gov/datastore/opinions/2022/09/28/20-35752.pdf

[3] “City of Grants Pass v. Johnson.” Oyez, www.oyez.org/cases/2023/23-175. Accessed October 15, 2024.

[4] id at [3].

[5] id at [2].

[6] ibid.

[7] “About the Case,” Johnson v. Grants Pass. Accessed October 15, 2024. https://johnsonvgrantspass.com/.

[8] “23-175 City of Grants Pass v. Johnson (06/28/2024).” Accessed October 16, 2024. https://www.supremecourt.gov/opinions/23pdf/23-175_19m2.pdf.

[9] “Robinson v. California.” Oyez. Accessed October 15, 2024. www.oyez.org/cases/1961/554

[10] ibid.

[11] id at [8].

[12] “Powell v. Texas.” Oyez. Accessed October 15, 2024. www.oyez.org/cases/1967/405

[13] ibid.

[14] ibid.

[15] id at [8].

[16] “QP Report: 23-175 City of Grants Pass v. Johnson (06/28/2024).” Accessed October 29, 2024. https://www.supremecourt.gov/qp/23-00175qp.pdf.

[17] ibid.

[18] id at [8].

[19] id at [8].

[20] Whitehurst, Lindsay. “Supreme Court Allows Cities to Ban Homeless People Sleeping Outside, Even When Shelter Space Is Lacking.” PBS, June 28, 2024.https://www.pbs.org/newshour/politics/supreme-court-allows-cities-to-ban-homeless-people-slee ping-outside-even-when-shelter-space-is-lacking#:~:text=Nearly%20half%20of%20them%20sle ep,are%20disproportionately%20affected%2C%20advocates%20said.

[21] ibid.

[22] id at [8].

[23] Mogk, Jessica, Valerie Shmigol, Marvin Futrell, Bert Stover, and Amy Hagopian. “Court-imposed fines as a feature of the homelessness-incarceration nexus: a cross-sectional study of the relationship between legal debt and duration of homelessness in Seattle, Washington, USA.” Journal of Public Health (Oxford, England) 42, no. 2 (2020):107–119. https://doi.org/10.1093/pubmed/fdz062

[24] Knopf-Amelung, Sarah. “Incarceration & Homelessness: A Revolving Door of Risk.” National Health Care for the Homeless Council. In Focus: A Quarterly Research Review of the National HCH Council 2, no. 2 (2013). Nashville, TN: Available at: www.nhchc.org.

[25] ibid.

[26] “Declaration of Independence: A Transcription.” National Archives and Records Administration. Accessed October 15, 2024. https://www.archives.gov/founding-docs/declaration-transcript.

[27] “The Constitution of the United States: A Transcription.” National Archives and Records Administration. Accessed October 15, 2024. https://www.archives.gov/founding-docs/constitution-transcript.

[28] “The Bill of Rights: What Does It Say?” National Archives and Records Administration. Accessed November 27, 2024. https://www.archives.gov/founding-docs/bill-of-rights/what-does-it-say.

[29] “State of Homelessness: 2024 Edition.” National Alliance to End Homelessness, August 5, 2024. https://endhomelessness.org/homelessness-in-america/homelessness-statistics/state-of-homelessn ess/.

[30] “Homelessness Data & Trends.” United States Interagency Council on Homelessness. Accessed October 20, 2024. https://www.usich.gov/guidance-reports-data/data-trends.

[31] Lurie, Kaya, Breanne Schuster, and Sara Rankin. “Discrimination at the Margins: The Intersectionality of Homelessness & Other Marginalized Groups.” http://dx.doi.org/10.2139/ssrn.2602532

[32] “2023 Demographic Differences in Federal Sentencing.” United States Sentencing Commission, August 13, 2024. https://www.ussc.gov/research/research-reports/2023-demographic-differences-federal-sentencin g.

[33] Lockwood, Susan Klinker, John M. Nally, Taiping Ho, and Katie Knutson. “Racial Disparities and Similarities in Post-Release Recidivism and Employment Among Ex-Prisoners with a Different Level of Education.” Journal of Prison Education and Reentry 2, no. 1 (May 14, 2015). https://doi.org/10.15845/jper.v2i1.703.

[34] ibid.

[35] “Payne v. Tennessee.” Oyez. Accessed November 12, 2024. https://www.oyez.org/cases/1990/90-5721.

[36] “South Carolina v. Gathers.” Oyez. Accessed October 20, 2024. https://www.oyez.org/cases/1988/88-305.

[37] Supreme Court Political Leanings: Justices by Ideology. Accessed November 20, 2024. https://www.axios.com/2019/06/01/supreme-court-justices-ideology.

[38] California, State of. “Governor Newsom Statement on Supreme Court’s Homeless Encampments Decision.” Governor of California, June 28, 2024. https://www.gov.ca.gov/2024/06/28/governor-newsom-statement-on-supreme-courts-homeless-e ncampments-decision/.

[39] Kendall, Marisa. “Supreme Court Gives Cities in California and Beyond More Power to Crack Down on Homeless Camps.” CalMatters, June 28, 2024.

[40] ibid.

[41] “Statutes, Codes, and Regulations.” Casetext. Accessed October 20, 2024. https://casetext.com/statute/texas-codes/penal-code/title-10-offenses-against-public-health-safety -and-morals/chapter-48-conduct-affecting-public-health/section-4805-prohibited-camping.

[42] id at 24.