By David M. Greenwald
Executive Editor
The US Supreme Court on Monday heard oral arguments in a critical case, City of Grants Pass v. Johnson, a case that will determine if cities can cite and arrest people for sleeping outside in public when adequate shelter is unavailable.
The Ninth Circuit has ruled that such penalties violate the Eighth Amendment’s ban on “cruel and unusual punishments,” and a transcript of the hearings shows the justices skeptical of criminalizing unhoused people camping.
In an exchange between Justice Kagan and the lawyer for Grants Pass, Theane D. Evangelis, the justice asked, “Could you criminalize homelessness?”
Evangelis responded, “I think there would be due process problems and vagueness problems. I don’t think there’s an Eighth Amendment problem.”
In response, Justice Ketanji Jackson pressing on the Eighth Amendment issue said “punishment is happening. In my hypothetical, people are going to jail because they’re eating in 
public.”
Evangelis responded that “in that case you would have a defense under Oregon law, for example, a necessity defense.”
Gorsuch also endorsed the necessity defense when the violation of the law—no camping, no eating—was not “voluntary.”
He said, “But do you concede that there are instances in which a necessity defense, long recognized at common law, would apply to eating in public, sleeping in public, or other things like that?
He added, “I suppose someone could also initiate a class action of the sort that happened here if—if you were not allowing the necessity defense to operate and seek to have it enforced…”
The lines here were not as clearly defined ideologically.
For instance, while liberal justices questioned the law, saying that in practice its laws criminalize someone for being homeless—which is a status rather than an action subject to punishment, conservative justices also appeared skeptical in light of a lack of housing and alternatives.
Justice Ketanji Brown Jackson said it seemed “both cruel and unusual to punish people for acts that constitute basic human needs.”
Justice Alito as well, as the liberals on the court, seemed to question punishing someone for conduct beyond their control.
He asked, “Does that person have any alternative other than sleeping outside?” He added, “They have none. They have absolutely none. There’s not a single place where they can sleep.”
Justice Kavanaugh added, “How does it help if there are not enough beds for the numbers of homeless people in the jurisdiction?
“When you get out of jail, what’s going to happen then? You still don’t have a bed available, so how does this help?” Justice Kavanaugh would ask.
Lawyers’ Committee for Civil Rights of the SF Bay Area has argued that the Court “should maintain this long-standing precedent that prohibits cities from punishing individuals simply for their status, such as being unhoused.”
“Grants Pass is not about solving homelessness, providing services, or reducing the number of people forced to sleep outside on any given night in our country. This case is about making homelessness invisible,” said John Do, senior attorney at the ACLU of Northern California.
Do added, “Punishing a person who is forced to sleep outside because they have nowhere else to go violates the Constitution’s Eighth Amendment prohibition on cruel and unusual punishment.”
Moreover the Committee believes that the Court’s decision could have far-reaching implications for unhoused people.
However, they point out that most of the legal issues in Coalition on Homelessness v. City of San Francisco, which challenges the City’s costly and ineffective practice of citing, arresting, and moving unhoused individuals without offering real alternative shelter and destroying their belongings, are not under review in the Grants Pass case.
The Coalition’s case against San Francisco will proceed regardless of how the Supreme Court rules in Grants Pass.
In a friend-of-the-court brief, the American Civil Liberties Union and ACLU affiliates in 18 states, including the ACLU of Northern California, argued that “the Eighth Amendment’s original intent and meaning protect unhoused people from the cruel and unusual punishment of being arrested or fined for simply existing.”
The brief adds that jail time is disproportionate to the “crime” of using a blanket when forced to sleep outdoors.
A coalition of San Francisco civic organizations and current and former officials represented by Lawyers’ Committee for Civil Rights of the San Francisco Bay Area also filed a friend-of-the-court brief explaining how California’s leaders and cities have used the Grants Pass case to blame judges for California’s decades-long failure to create and preserve affordable housing and address the homelessness crisis.
“Issuing fines that unhoused people can’t pay, arresting them for sleeping outside when they have nowhere else to go, and seizing their property makes it harder for them to get off the streets,” said Jennifer Friedenbach, executive director of the Coalition on Homelessness. “Applying for the limited services that exist is nearly impossible if you are always moved around and the government has taken or destroyed documents you need to confirm your identity and prove your eligibility. And a criminal record, warrant, or unpaid court fine can pose a barrier to securing benefits, employment, and permanent housing.”
Homelessness is also a racial justice issue they maintain, citing the stat, “Nearly 40 percent of unhoused people in San Francisco are Black, although Black people are less than 6 percent of the City’s population.”
The committee writes, “This disparity is a shameful testament to persistent anti-Black racism in housing, employment, and the criminal legal system. Citing and arresting unhoused people when shelter is unavailable and housing is unaffordable won’t solve the homelessness crisis in San Francisco. Continuing to do so will only further entrench racial inequity.”
“Affordable housing is the only real solution to our homelessness crisis. Year after year, San Francisco residents have voted to support additional funding for affordable housing in the city. However, despite this public support, city leaders have failed to deliver. Irrespective of the outcome in Grants Pass, San Francisco and other cities in California must immediately expand affordable housing and emergency shelter for the thousands of individuals forced to sleep outside,” said Nisha Kashyap, Program Director, Racial Justice, Lawyers’ Committee for Civil Rights of the San Francisco Bay Area.
