Criminal law and the unhoused

The criminal law is not the solution to the problem of homelessness. Every major city in California has a large unhoused population. The causes of homelessness are complex: a lack of sufficient, affordable housing, and a paucity of social service programs are key contributors. Solutions are elusive, even with large amounts of money being spent. The answer ultimately will come from more shelters, more affordable housing, more social services. But the answer is not going to come from the criminal law and making being unhoused a crime.

On April 22, the Supreme Court will face exactly that issue -- can a city make being homeless a crime – when it hears oral arguments in Grants Pass v. Johnson. Although the answer should be obvious, there is every reason to be concerned that the conservatives on the Court will come to the wrong conclusion and allow cities to make it a crime to sleep in public even when the unhoused have nowhere else to sleep.

Grants Pass v. Johnson is actually the third case in which the United States Court of Appeals for the Ninth Circuit held that it violates the Eighth Amendment as cruel and unusual punishment for the government to criminalize homelessness.

The Ninth Circuit initially faced this question in Jones v. City of Los Angeles in 2006. In an opinion by Judge Kim Wardlaw, the Ninth Circuit enjoined the enforcement of a City of Los Angeles ordinance that criminalized sitting, lying, or sleeping on public streets and sidewalks at all times and in all places within Los Angeles’s city limits.

Although this case ultimately settled and the opinion was vacated, the Ninth Circuit, in an opinion by Judge Marsha Berzon, came to the same conclusion in 2018 in Martin v. City of Boise. The Ninth Circuit enjoined a Boise, Idaho ordinance which made it a misdemeanor to use “any of the streets, sidewalks, parks, or public places as a camping place at any time.” The Camping Ordinance defined “camping” as “the use of public property as a temporary or permanent place of dwelling, lodging, or residence.”

In 2023, the Ninth Circuit applied this decision in Johnson v. City of Grants Pass. Grants Pass is a city in Oregon with a population of about 39,000 and a homeless population that may be as many as 600. Grants Pass adopted a series of ordinances meant to keep unhoused individuals from sleeping on public property. One ordinance provides that “No person may sleep on public sidewalks, streets, or alleyways at any time as a matter of individual and public safety. No person may sleep in any pedestrian or vehicular entrance to public or private property abutting a public sidewalk.” Another ordinance prohibited persons from occupying a “campsite” on all public property, such as parks, benches, or rights of way. The term “campsite” was defined as any place “where bedding, sleeping bag, or other material used for bedding purposes.” As the Ninth Circuit observed, “City ordinances preclude homeless persons from using a blanket, a pillow, or a cardboard box for protection from the elements while sleeping within the City’s limits.” The ordinances provide for civil fines, exclusion orders from city property for repeat violations, and criminal penalties for violating exclusion orders. The Ninth Circuit, in an opinion by Judge Roslyn Silver (sitting by designation), enjoined enforcement of this ordinance.

In all three cases, the Ninth Circuit applied the same reasoning. Under the Eighth Amendment, it is cruel and unusual punishment for the government to punish a status. In Robinson v. California, in 1962, the Supreme Court declared unconstitutional a California statute that “ma[de] the ‘status’ of narcotic addiction a criminal offense.” The Supreme Court explained that the California law was “not one which punishe[d] a person for the use of narcotics, for their purchase, sale or possession, or for antisocial or disorderly behavior resulting from their administration; it punished addiction itself.”

Robinson was clearly right and has been the law for over 60 years. The criminal law can punish volitional conduct, but it is cruel and unusual punishment to impose penalties on a person for something that he or she cannot control. There is no doubt that the Eighth Amendment limits the crimes for which a person can be punished. As the Court declared in Robinson, “Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.”

In all three cases, the Ninth Circuit explained that everyone must sleep and concluded that it violates the Eighth Amendment to punish sleeping in public when a person has no place else to sleep. In Martin v. City of Boise, Judge Berzon wrote: “We hold only that ‘so long as there is a greater number of homeless individuals in [a jurisdiction] than the number of available beds [in shelters],’ the jurisdiction cannot prosecute homeless individuals for “involuntarily sitting, lying, and sleeping in public. That is, as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”

In Grants Pass, the Ninth Circuit used the same reasoning in explaining why it was cruel and unusual punishment to keep people from having pillows or blankets or cardboard to sleep in public. Judge Silver explained, “City of Grants Pass cannot, consistent with the Eighth Amendment, enforce its anti-camping ordinances against homeless persons for the mere act of sleeping outside with rudimentary protection from the elements, or for sleeping in their car at night, when there is no other place in the City for them to go.”

This is right as a matter of Eighth Amendment law, but also as a matter of basic human decency. What good does it do to make being unhoused a crime? Arresting these individuals and imposing fines that they cannot pay does nothing to solve the problem of homelessness. Putting them in jail for a period of time does nothing to find them housing for when they are released and besides likely is more expensive for the government than providing shelter beds.

The City of Grants Pass in its brief to the Supreme Court urges reversal of the Ninth Circuit and giving local governments seemingly unlimited power to criminally punish the unhoused. In fact, it is clear that it wants to see the Court dramatically change the law of the Eighth Amendment and effectively overrule Robinson v. California. In its brief, Grants Pass says: “The Eighth Amendment does not address whether and when ‘involuntary’ conduct related to status can be punished.”

When the Ninth Circuit considered whether to grant en banc review, all thirteen judges who had been appointed by Republican presidents voted in favor, obviously to reverse the panel decision. The fourteen judges appointed by Democratic presidents voted against en banc review. This may foretell what the Supreme Court will do.

But my hope on reflection is that even the conservative justices will realize that Robinson v. California was rightly decided and that the criminal law provides no solution to homelessness. It is just wrong and inhumane to make sleeping in public a crime if there is nowhere else for a person to sleep.