Will the Supreme Court Make Homelessness a Crime?

Unhoused senior citizens Kim Morris and Kevin Gevas call a homeless advocate from Mint at Tussing Park in Grants Pass, Oregon on Thursday March 28, 2024. Melina Mara/The Washington Post/Getty

Helen Cruz has been a resident of Grants Pass, Oregon, for roughly four decades, but for the last five of those years, she’s had no home in which to live. She’s not alone. Her small mountain town with a population of 39,189 provides no public homeless shelters. She is among up to 600 people experiencing homelessness in that community.

On Monday, the Supreme Court heard oral arguments about their disputed right to sleep outside. At issue is an effort from 2013, when Grants Pass attempted to address the town’s burgeoning number of unhoused people by fining and subsequently issuing trespass orders with criminal penalties for sleeping in the park with as little as a blanket. By the end of June, the justices will issue a decision on the case that may determine whether their situation of being unhoused with no place to go is a protected constitutional status—or a crime.

Some of the court’s conservative justices seemed moderately sympathetic to the position of Grants Pass. Chief Justice John Roberts inquired whether the ordinances in the city would be permissible if a surrounding town had vacant shelter beds. The court’s eventual decision may very well reverberate outside of Grants Pass to affect the more than 650,000 people who are homeless at any given time in the United States. If the justices give Grants Pass the go-ahead to criminalize homelessness, other towns and cities may also opt to follow suit. As Justice Sonia Sotomayor put it: “Where do we put them, if every city, every village, every town, lacks compassion, and passes a law identical to this? Where are they supposed to sleep?” 

Even as someone who is employed regularly as a house cleaner, 49-year-old Cruz has not been able to make it work. She can’t afford a hotel or an apartment, much less the $295-plus tickets the city slapped her with for sleeping in the parks. When the city’s unhoused people returned to sleep in the park after receiving tickets, city code allowed police to arrest them. The unpaid fines sank their credit scores and the jail stays showed up on background checks, further adding to the obstacles they faced when seeking stable employment and permanent housing.

“Those kinds of punishments not only don’t end homelessness or move us toward a solution; they move us in directly the wrong direction,” says Ed Johnson, Oregon Law Center’s director of litigation, who first sued Grants Pass over the fines. “They make matters worse, and they increase the number of people who are unable to escape homelessness.”

Despite a consensus among housing experts that civil and criminal penalties are counterproductive, conservative and liberal local governments alike are turning to them in an attempt to appease critics of homelessness in their communities without addressing its underlying causes, chief among them being the lack of affordable housing.

America has 7.3 million fewer affordable rental units than demand requires. A record-breaking 22.4 million renters spend more of their incomes on rent and utilities than the government deems financially prudent. This supply-and-demand imbalance has pushed more people towards a housing instability cliff. On one night in January 2023, more than 650,000 Americans were found to be experiencing homelessness, the highest point-in-time count since 2007 when the Department of Housing and Urban Development (HUD) started tracking the numbers.

As a result, “Homelessness has become a much more visible problem. And elected officials are put into this position where they are being publicly pressured to be seen as doing something about the problem,” says Ann Oliva, CEO of the National Alliance to End Homelessness. “What we’re seeing is political rather than strategic reactions, because we know that criminalization doesn’t work.” 

Or, as Cruz notes, “They would rather push us all out of town, make sure that we don’t exist, or bury their head in the sand.”

A legal aid veteran of almost 30 years, Johnson started hearing about unhoused people being fined and arrested in Grants Pass around 2016. When he visited the parks to talk to those living outside, he was stunned to learn the rumors were true. “They were awakened in the middle of the night by police and told that there was no place in town where they were allowed to be,” Johnson says. “They weren’t idle threats. People actually got tickets and fines and were arrested and sent to jail for criminal trespass.”

In 2018, Oregon Law Center officially filed a class-action lawsuit against the city on behalf of an unhoused woman named Debra Blake, plus “all others similarly situated.” (Blake died at age 62 in 2021. The case has been renamed for two other unhoused Grants Pass residents.) As the case made it through the legal system, Johnson and his team found proof during the discovery process that the city had intended to make life so unworkable for homeless people that they would be forced to move out of town.

In 2013, Johnson says, city leaders held a roundtable about what they perceived as a vagrancy problem in its parks. Their punch list of ideas included providing bus fare to homeless people to send them elsewhere, posting “Most Unwanted” signs around town, and issuing fines. 

“All of the ideas that were voiced at this roundtable were mean-spirited ideas to get rid of people,” says Johnson. None of them involved “how they might help people who were residents of Grants Pass before they were priced out of the market.”

Grants Pass settled on fining people who had created campsites in city parks, with “campsite” defined loosely to include any set-up where “bedding, [a] sleeping bag, or other material used for bedding purposes” is used, according to the city’s municipal code. Having a single pillow or blanket meets this description, Johnson says. 

A first offense resulted in a $295 fine. If unpaid, the second fine increased to $538. “It costs more than a Hilton to camp in the park,” Brodia Minter, who is Cruz’s public defender, tells me. After two or more citations in one year, police could ban people from the parks. People found camping in parks after being banned were prosecuted and sometimes imprisoned for criminal trespass. Each count of criminal trespass triggered up to 30 days in jail and a $1,250 fine. In addition, the Grants Pass municipal code banned sleeping on public streets, sidewalks, and alleyways. Violations of this ordinance also resulted in fines.  

“The city calls it camping,” says Johnson. “But they defined camping in such a way that it means trying to stay warm and dry so that you don’t die of hypothermia. For people living outside, there’s no way they could avoid violating this law.”

There were few alternatives. The median price for a one-bedroom apartment there is $1,250 a month, but the median per capita income is just $30,649. This means an average individual can expect to spend at least half of their income, before taxes, on rent alone—making them “severely rent-burdened,” according to HUD. While Grants Pass is home to one Christian-run overnight shelter for adults, it only has about 100 beds. To stay there, individuals must attend daily religious services and refrain from using drugs, alcohol, or nicotine. Pets, including service animals, are also prohibited.

“There’s literally no housing,” says Jesse Rabinowitz, campaign and communications director at the National Homelessness Law Center. “So much of this case is rooted in the idea that if we punish people, they’ll choose not to be homeless, and nothing could be further from the truth.”

If the fines were designed to motivate Cruz to stop being homeless in theory, the effect in reality is exactly the opposite. “What keeps you from getting ahead when you’re living in a tent is the fact that you don’t have a way to keep your food, so you have to buy food every single day. You don’t have power, so you have to buy batteries. You have to spend lots of money every single day just to be able to survive,” Cruz explains. “The things that people take for granted, like turning on a light switch, opening the refrigerator, cooking a meal—I don’t have that out there.”

The quick solution to acute homelessness is providing unhoused people access to low-barrier shelter and human services so they can rebuild their lives. But the root challenge lies in helping people before they get to that point. The long-term solution is increasing the housing supply, creating a permanent emergency rental assistance program, and expanding income-based housing help. 

There’s proof that direct services are highly effective. During the Obama Administration, a 2009 recession-prompted stimulus package created a $1.5 billion fund for a three-year Homeless Prevention and Rapid-Rehousing Program (HPRP). During the program’s second year, HPRP prevented and ended homelessness for over 670,000 children and adults. HPRP provided financial assistance for up to 18 months, but roughly a third were in the program for less than 30 days. Upon exiting HPRP, 89 percent of participants who had previously been on the brink of homelessness were in stable, permanent housing; 82 percent of already-homeless people who received rapid rehousing help found permanent housing before graduating from the program.

“It’s just a matter of the political will—of putting resources into those solutions at the scale that’s needed. That’s really the biggest barrier here,” says Sarah Saadian, senior vice president of public policy at the National Low Income Housing Coalition. “Not, ‘Do we not know what the solutions are?'”

Lawyers for the unhoused people in Grants Pass argue in briefs the penalty system and inflicting punishment on unhoused people isn’t just ineffective, it also violates the Eighth Amendment’s protections from excessive bail, excessive fines, and “cruel and unusual punishments.” They point to the 1962 case of Robinson v. California, in which the Supreme Court found that the mere status of drug addiction could not be criminally punished if it were not connected to a concrete instance of use, possession, or distribution. A concurring judgment to that opinion argued that drug addiction may be involuntary; it’s often born of a societal problem, not necessarily a personal one, which is how most housing experts view homelessness.

A three-judge panel from the Ninth Circuit agreed in 2022, ruling, “The 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.”

Attorneys for Grants Pass refuted the Ninth Circuit’s interpretation of the Eighth Amendment, which is why they appealed to the Supreme Court. “The Amendment’s three clauses set limits on bail, fines, and punishments,” lawyers for Grants Pass argue. “They do not prescribe which conduct governments may deem unlawful in the first place.”

The Supreme Court justices spent much of their time examining conduct. While sleeping might be a form of conduct, Justice Elena Kagan argued that for a person who is homeless and has no place to shelter, “sleeping in public is like breathing.” A lawyer for Grants Pass acknowledged the policy issue was complicated but cited public safety as a reason for the city’s penalty system. “There is harm in simply camping,” said the lawyer. “There is harm to the whole city and the whole community, as well as to them. We know that encampments in these conditions breed crime.”

Housing experts, however, reject that argument. “People experiencing homelessness are much more likely to be the victims of crime than they are to be the perpetrators of crime,” says Oliva, from the National Alliance to End Homelessness. “That said, if there is some sort of criminal activity happening in an area where people are staying, there’s no reason for the police not to address that specific criminal activity that has—in many cases—nothing really to do with the encampment itself.”

Another argument for Grants Pass is that this lawsuit and previous ones ruling in favor of unhoused peoples’ rights have tied the hands of governments to address homelessness in any manner. In 2018, the Ninth Circuit ruled in Martin v. Boise that criminal penalties for public sleeping bans in Idaho when there were insufficient shelter beds were unconstitutional. In a 2023 amicus brief supporting Grants Pass, California Governor Gavin Newsom pointed to downstream effects on Santa Barbara. When the Southern California city attempted to impose a time-limited ban against sleeping in the downtown area only, a district court held that the plaintiffs had a plausible Martin claim. 

“Courts have stretched Martin’s reasonable limit into an insurmountable roadblock,” Newsom wrote, “preventing cities and towns from imposing common-sense time and place restrictions to keep streets safe and to move those experiencing homelessness into shelter.”

Yet housing experts say cities still have several mechanisms for addressing homelessness under the Ninth Circuit’s interpretation. The appellate court was clear that its earlier decision in Martin v. Boise did not mean a city was obligated to provide physical shelter for every homeless person, nor that people were allowed to sleep anywhere and for any length of time.

“An ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible,” the Ninth Circuit wrote.

Some cities have found success in banning “daytime” camping between 8 a.m. and 8 p.m., requiring unhoused people to pack up their stuff daily before returning at night. Others have created “legal campgrounds” in an attempt to force homeless people to cluster in an area deemed less in the way.

The Supreme Court may clarify these enforcement practices are indeed legal. But whatever the high court finally rules, the crisis of homelessness is unlikely to abate, including for Cruz. All she wants from the court is to clarify that being unhoused when there is nowhere else for her to go does not make her a criminal. “Just because there’s no white picket fence and there’s no nice clothes,” she says, “doesn’t mean that we’re not human.”