Grants Pass v. Johnson: homelessness as a crime

A homeless child plays in the park after receiving free food with her mother and sister, in Riverside Park, Thursday, March 21, 2024, in Grants Pass, Ore. (AP Photo/Jenny Kane)

On June 28, 2024, the United States Supreme Court issued a 6-3 decision, Justice Neil M. Gorsuch, joined by Chief Justice Roberts and Justices Alito, Barrett, Kavanaugh and Thomas in the majority, in City of Grant’s Pass v. Johnson, -US-, 144 S. Ct. 2202 (2024) holding that a municipality’s enforcement of an ordinance banning camping on public property against individuals experiencing homelessness does not violate those individuals’ constitutional rights. In a nutshell, the majority overruled a contrary decision of the Ninth Circuit, 72 F.4th 868 (9th Cir. 2022), and held that a statute criminalizing sleeping outdoors on public property does not violate the Eighth Amendment’s prohibition on cruel and unusual punishment. 

The Grant’s Pass majority found the situation here to be the same as that presented to the court in Powell v. Texas, 392 U.S. 514 (1968) and, accordingly, rejected plaintiffs’ argument that the Eighth Amendment’s cruel and unusual punishment clause is a constitutional bar to enforcement of the Grant’s Pass ordinances.  The majority opinion leans into a narrow interpretation of the Eighth Amendment. They say that the ordinance does not violate the cruel and unusual punishment clause because that clause is strictly about what punishment is permissible, not whether a certain kind of conduct can be criminalized. They also say that it is not cruel because it’s not aimed at creating “terror, pain, or disgrace”; and it’s not unusual because there are similar punishments around the country. 

The dissent by Justice Sonia Sotomayor and several of the voluminous amicus briefs filed in the case argue that the city is criminalizing the status of being homeless because it prohibits sleeping or camping—defined broadly as using any bedding “for the purpose of maintaining a temporary place to live”—in any public space within city limits. You would only violate the statute if you don’t have a permanent place to live, and there is no way to avoid violating the statute if you are homeless living within Grants Pass, so it’s really criminalizing the status of being homeless contrary to Robinson v. California, 370 U.S. 660, 667 (1962) (“Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.”)

As Beth Haroules, senior staff attorney at the New York Civil Liberties Union, said in response to the Grant’s Pass decision, “We cannot arrest our way out of poverty. Instead of arresting or fining people for simply existing, cities should prioritize proven solutions to end homelessness, like affordable housing, accessible and voluntary services, and evictions protections.”  Press Release: ACLU Responds to Supreme Court Decision That Cities Can Punish People for Being Homeless, ACLU, June 28, 2024, https://www.aclu.org/press-releases/aclu-responds-to-supreme-court-decision-that-cities-can-punish-people-for-being-homeless.  Some of the amicus briefs on the respondents’ side argue persuasively that ordinances like this are equivalent to banishment, which as a society we long ago discarded as a punishment. If you can’t be homeless anywhere within the city limits, you’re effectively banning people from existing in the city. And in most cases, people are homeless in the same place that they previously had homes. So you are actually saying to people for whom this is their home, “You can no longer be here.”

According to the U.S. Department of Housing and Urban Development, there were an estimated 4,775 people experiencing homelessness on a single night in Wisconsin in 2022.  How the Homelessness Problem in Wisconsin Compares to Other States.  Chronic homelessness, in fact, has risen steadily since 2018, and increased nearly 30% between 2020 and 2023, which saw the highest number of individuals experiencing chronic patterns of homelessness – about 143,100 people – of any year since the survey began in 2007.  The 25 U.S. Cities With Largest Homeless Populations.  Wisconsin's homelessness population is on the rise for the first time in a decade, a trend that will likely grow as federal pandemic-relief programs end and living costs continue to surge.  Wisconsin's homeless rate edges upward, after nearly a decade of a downward trend.  In Wisconsin, 6,055 people were registered as homeless in 2014, but by 2021, that number had fallen to 4,237 — a 30% drop. As of 2023, Wisconsin reported 4,861 homeless individuals.  Id.

There are specific population groups which are more likely to find themselves homeless.  According to the 2023 Annual Homelessness Assessment Report to Congress:

• Men accounted for almost nine of every ten veterans experiencing homelessness in 2023 (88% or 31,231 veterans). This is similar to the share of veterans in the U.S. who are men (90%).

• Women veterans experiencing homelessness were much more likely to be in a household with a child under 18 years of age (8%) than their male counterparts (1%).

• In contrast to the population of individuals experiencing homelessness, in which women were more likely to be sheltered, women veterans experiencing homelessness were more likely to be found in unsheltered locations than their male counterparts (54% vs. 42%)

• The highest percentage of veterans experiencing homelessness were White (57%), followed by veterans who were Black, African American, or African (31%). This pattern is consistent across veterans experiencing sheltered or unsheltered homelessness.

• People who identify as Black, African American, or African were considerably overrepresented among veterans experiencing homelessness. Black veterans comprised 36 percent of veterans experiencing sheltered homelessness and 25 percent of veterans experiencing unsheltered homelessness but only 12 percent of all U.S. veterans. Conversely, while 57 percent of veterans experiencing homelessness were White, they were underrepresented compared to their share of all U.S. veterans, 75 percent.

• Veterans who identify as American Indian, Alaska Native, or Indigenous made up a higher share of the unsheltered veteran population than the sheltered (5% vs 2%) as did veterans identifying as multi­ racial (7% vs 4%).

• The percentage of veterans experiencing homelessness who identify as Hispanic/Latin was considerably smaller than the percentage of Hispanics among people experiencing homelessness as individuals (13% vs. 24%).

• From 2022 to 2023, the largest percentage increase in veterans experiencing homelessness occurred among veterans who identify as Asian or Asian American (a 51% increase, or 204 more veterans). Most of this increase (180 veterans) was among unsheltered veterans.

• Both male and female veterans experienced an increase in homelessness. With an additional 1,839 male veterans experiencing homelessness in 2023 than in 2022, men accounted for most of the increase in veterans experiencing homelessness over the last year.  Tanya de Sousa et al., U.S. Dep’t of Hous. & Urb. Dev., The 2023 Annual Homelessness Assessment Report (AHAR) to Congress: Part 1, at 68 (2023).

Over the last 40 years, homelessness among women and children has seen a consistent, rapid increase. In fact, women and children were among the fastest growing segments of the homeless population during the 1980s and 1990s.  Today, women account for 30% of the homeless population and children account for 17%.  Id.; Jean Calterone Williams, “A Roof Over My Head”: Homeless Women and the Shelter Industry 1 (2d ed. 2016) (stating that women and children compromise a “surprising” subset of the “new” homeless).

More than 20 percent of people experiencing homelessness currently have a serious mental illness such as bipolar disorder or schizophrenia, compared with 5.6 percent of the general population.7  Individuals experiencing homelessness also report disproportionately high lifetime rates of mental health challenges.  One study found that 27 percent of individuals experiencing homelessness had been hospitalized for a mental health condition, with more than half of those hospitalizations occurring prior to their first instance of homelessness.  Guide Overview:  Expanding Access to and Use of Behavioral Health Services for People Experiencing Homelessness 1 (Jan. 2023); Toward a New Understanding: The California Statewide Study of People Experiencing Homelessness 5 (June 2023).  In addition, “the deleterious effects of homelessness on mental health have been established by research going back decades.”  Deborah K. Padgett, Homelessness, housing instability and mental health:  making the connections.  Children, in particular, “are especially susceptible to the psychological effects of homelessness and housing instability.”  Id.

Each year, nearly 4.2 million young people aged 13-25 across the United States experience some form of homelessness. Amy Dworsky et al., Chapin Hall at the Univ. of Chi., Missed Opportunities: Pathways from Foster Care to Youth Homelessness in America 1, 16 (2019), (“Homelessness describes the experience of sleeping in places in which people are not meant to live, staying in shelters, or temporarily staying with others (‘couch surfing’) and not having a safe and stable alternative.”). One study found that 1 in 10 youth ages 18 to 25 and at least 1 in 30 youth ages 13 to 17 will be unhoused over the same 12-month period. Matthew Morton et al., Chapin Hall at the Univ. of Chi., Missed Opportunities: Youth Homelessness in America National Estimates 5 (2017).

Of course, “[f]ormerly incarcerated people are almost 10 times more likely to be homeless than the general public.” Lucius Couloute, Nowhere to Go: Homelessness Among Formerly Incarcerated People, Prison Policy Initiative (Aug. 2018).  This effect is even more pronounced for people who have experienced multiple terms of incarceration. See id.