“Homelessness is complex,” Supreme Court Justice Neil M. Gorsuch wrote, as he and the court majority upheld a law that does nothing to recognize the complexity of homelessness. In a 6-3 ruling Friday, the justices sided with a law passed in Grants Pass, Oregon, that criminalizes homeless people for sleeping rough on public property.
On a day of grim Supreme Court decisions, the ruling in City of Grants Pass v. Johnson raises the grim question of whether cities and counties will rely more on anti-camping ordinances to deal with homelessness and encampments rather than doing the hard work of creating temporary housing, such as motel and hotel rooms, and permanent affordable housing, often with services.
Those are the solutions: only Humane solutions to homelessness that require hard work, funding and patience.
This decision cruelly allows cities to deal with homeless people by fining them, jailing them, and ultimately chasing them off sidewalks and parks, leaving them to seek out other sidewalks and parks. Impoverished people can’t afford to pay the fines, so the penalties pile up, sometimes showing up on their credit report or resulting in a court order for nonpayment. That only hurts their chances of finding housing when they receive a rental subsidy and apply for an apartment.
By letting the Grants Pass Act stand, the court effectively struck down the 9th The Circuit's decision in Martin v. Boise, which held that fining or jailing homeless people for sleeping outdoors when shelter is unavailable violated the Eighth Amendment's ban on cruel and unusual punishment. The Grants Pass law had been declared unconstitutional by a federal court and the Ninth Circuit for the same reasons.
Gorsuch said the cruel and unusual punishment clause applies to horrific types of punishment (for example, burning people alive) and that fines for outdoor camping essentially didn't qualify. Nor, Gorsuch writes, do federal judges have particular jurisdiction to decide whether some people who break a law (like camping outdoors) are not “morally culpable” for it because they were homeless and had no place to go. He said those issues “are generally best resolved by the people and their elected representatives.”
But that's the problem: Local elected officials, under pressure from their constituents, don't always make the best decisions for the poor living on the streets of their cities. In what universe is imposing fines on people who can't pay a reasonable approach to the homeless problem?
Gorsuch cited a litany of amicus briefs from city, county, state and law enforcement officials complaining about how difficult and expensive it is to deal with homelessness, how homeless people often reject offers of housing and how anti-camping ordinances could help. The city of San Francisco, Gov. Gavin Newsom and Los Angeles City Attorney Hydee Feldstein Soto all filed amicus briefs asking for the ability to enforce the law or guidance on doing so.
Gorsuch wrote that different areas use anti-camping restrictions to varying degrees, but that policymakers agreed they needed every tool in the “policy toolbox” to address housing and homelessness. But, he said, “the U.S. Court of Appeals for the Ninth Circuit took one of those tools off the table.”
This is ridiculous. Anti-camping laws are not tools that can solve the homeless problem. And fining people who live outdoors has nothing to do with creating housing. In fact, the Boise ruling stating that homeless people cannot be fined unless non-religious shelter is available was an effective tool: discouraging elected officials from harassing people instead of creating new housing.
Yes, homelessness is hard to deal with, but the problem is not solved by jailing and fining people and pushing them from one sidewalk to the next. Only adequate housing and services, including treatment for mental illness and substance abuse, will solve homelessness. It takes time and money. Decades of underinvestment in affordable housing and the loss of rent-controlled apartments have made homelessness worse year after year.
Los Angeles Mayor Karen Bass criticized the decision, warning that it “should not be used as an excuse for cities across the country to try to arrest their way out of this problem or hide the homeless crisis in neighboring cities or in the jail. Neither option will work, neither will save lives and that route is more expensive for taxpayers than actually solving the problem.”
In her dissenting opinion, Justice Sonia Sotomayor argued that fining people who have no choice but to sleep outdoors is indeed cruel and unusual under the Eighth Amendment because it is punishing them for their condition, something they cannot control. “This is unconscionable and unconstitutional,” she wrote.
She is right. What a sad decision.
