Will the Supreme Court allow cities to punish the homeless for being homeless?

Over half of America is one unpayable bill from sleeping on the street. And before the end of June, the Supreme Court will decide whether you can be punished for doing so.

On April 22, the court will hear oral argument in City of Grants Pass, Oregon v. Johnson to decide whether three of the city’s anti-homelessness laws are cruel and unusual punishment under the Eighth Amendment of the Constitution. Collectively, the three laws ban sleeping on streets, sidewalks, alleys, park benches and numerous other public areas. They also ban the use of blankets, or even cardboard scrap, for warmth and protection from the elements. 

Because unhoused people in Grants Pass have nowhere to go when night falls, they involuntarily violate the ordinances by existing outdoors — that is, unless they stay awake and walk indefinitely. For each ticket, the city imposes a $295 automatic fine, plus an added $75 for sleeping outside. Unhoused people cannot typically pay this. Even so, nonpayment causes each fine to jump to $537.60 and $160, respectively. When they can’t pay the higher fines, either, the city jails them. And because jail time comes with an additional $1,250 fine, the cycle continues.

The city began heavily enforcing these laws in 2013, calling them “anti-camping” ordinances. But make no mistake: These laws target unhoused people. The then-president of the Grants Pass City Council admitted that “[t]he point is to make it uncomfortable enough for them in our city so they will want to move on down the road.” 

This is not the city’s first attempt to banish unhoused residents. In years past, Grants Pass police officers reportedly bought one-way bus tickets to send them to neighboring cities. Sickeningly, those cities sent them back with instructions not to return. Nor is it the city’s last attempt. In early March, the Grants Pass City Council passed a new ordinance to impose limits on charitable activity, much of which was for the benefit of unhoused residents, on public property. Thankfully, the mayor vetoed it.

In 2018, three individuals took stronger action than any elected official has, and they did so with fewer resources. Debra Blake, Gloria Johnson and John Logan sued the city on behalf of themselves and a class of other involuntarily homeless people. They told the court that the city’s ordinances are cruel and unusual punishment in violation of the Eighth Amendment. Momentum for the lawsuit came from a prior decision in the Ninth Circuit, Martin v. Boise, which stated that the city of Boise could not prosecute unhoused residents for existing outside “so long as there is a greater number of homeless individuals in [a jurisdiction] than the number of available beds [in shelters].”

Homelessness cannot be solved by punitive measures. The clearest evidence of this is that the city’s homelessness ban has not solved homelessness. Last year, Oregon had the third highest rate of homelessness in the country. Oregon also ranked first in unaccompanied youth homelessness. And, overall, the state’s homeless population has increased by 35 percent since the start of the COVID-19 pandemic. 

Oregon’s numbers reflect a nationwide crisis which, despite its gravity, receives astounding inattention. Despite the mounting evidence that homelessness is most often involuntary, some are disinclined to heed this reality or, at the very least, empathize. Regardless, the actions of the city of Grants Pass should trouble everyone. By fining and cyclically jailing its poor, the city is all but forcing noncompliance with the law. Those individuals have no opportunity to accumulate enough money to pay the fines, and their arrest records for failure to pay can block them from job opportunities and even shelter admission. If the court reverses the Ninth Circuit’s decision, the city’s punitive trap will continue to ensnare unhoused people at the expense of individual liberty.

If the city were motivated by genuine concern, it would pass effective ordinances that focus on primary causes of homelessness: a lack of housing affordable to low-income people. Providing permanent housing and support services is a cost-effective, evidence-based solution. Pathways to Housing’s permanent housing program, for example, has a success rate of nearly double that of temporary housing programs. And localities generally don’t have to bear all of the cost: In Oregon, Medicaid covers the cost of housing support and transition services as well as medical, mental and substance abuse health care.

While Medicaid doesn’t cover the cost of housing itself, and Housing and Urban Development funding does not meet the entire need, it is smarter and, arguably, cheaper to spend some local funds on solutions instead of on repeated incarceration. Given the availability of non-punitive solutions, Grants Pass’s choice to turn to the criminal legal system is a cruel, needlessly expensive, ineffective one.

Grants Pass v. Johnson is one of the most important human rights and individual liberty cases of this Supreme Court term. Debra Blake passed away in 2021 and will never see the outcome. But Gloria, John and the scores of unnamed people they represent will, and so will everyone who has ever been one unexpected bill away from losing their home. 

As for the unhoused people who huddle on the sidewalks outside our nation’s highest courthouse, they’ll see it if we let them survive the cold.

Alizeh Ahmad is an attorney and Legal Fellow at the Lawyers’ Committee for Civil Rights Under Law. On April 3, 2024, the Lawyers’ Committee filed an amicus brief with the National Low Income Housing Coalition and the Center on Budget and Policy Priorities in support of the homeless individuals in City of Grants Pass v. Johnson.