The U.S. Supreme Court has decided to take up the case of City of Grants Pass, Oregon v. Gloria Johnson to determine whether if, under our Constitution, a local government can make it a crime to involuntarily live outside and unsheltered, when adequate shelter is not available. The Alliance has issued a statement that the Court should not allow such a policy.
The Supreme Court will review the decision of the Court of Appeals for the Ninth Circuit, which followed precedent in the Ninth Circuit and elsewhere that states are not allowed to make it a crime to sleep outside if no inside space is available. These precedents are based on the prohibition in the Eighth Amendment of the U.S. Constitution, against “cruel and unusual punishment.” The local officials in Grants Pass and elsewhere seek the ability to arrest and jail unsheltered people. In Grants Pass, the specific charge was “camping,” which police interpreted as sleeping with a blanket, pillow, or even a sheet of cardboard to lie on. Officials have been explicit about their hopes that people will go elsewhere.
National and local advocates will file amicus curiae (“friend of the court”) briefs over the next few months, and a hearing will be held in late April with oral arguments from both sides. The Supreme Court will then make its decision, probably in June or July (although it could be sooner). Based on this decision, local governments will decide how to change policies – a process that could take years.
It’s important to note that nobody involved in this case – from the perspective of better treatment for people living unsheltered – regards the case as unwinnable. Whether turning blameless acts into crimes amounts to unconstitutional government overreach is not a conservative versus liberal issue. Among the local politicians who have filed briefs siding with Grants Pass in asking the Supreme Court to take the case are many who are seen as progressive, but who seek power over people living in their jurisdictions in order to avoid the hard work of solving the underlying challenge of ensuring that the most vulnerable people have access to housing and services they need.
Impacts of the Supreme Court Decision
In this case, the Supreme Court has the ability, by ruling in favor of the unsheltered people who brought the case, to affirm that everyone in the community is valued, and that the legitimate role of local government is to make room for everyone, in decent conditions, not pick out certain people to lock up or drive out.
On the other hand, if the Supreme Court rules in favor of the City of Grants Pass, the Court could make the problem of homelessness much worse. Allowing unsheltered homelessness to be a crime, even when there is no shelter, would mean more people with criminal records: making it harder to get a job, harder to rent an apartment, and harder to have time to address barriers when life is filled with court appearances and jail time. Jails in America are dangerous places, perhaps more dangerous than unsheltered homelessness. If forced to leave their community people lose ties with family, caseworkers, churches, and others who can help.
More broadly, criminalization creates more conflict around the issue. Communities that make progress on homelessness are marked by people working together. But if local politicians and police are putting people in jail, it guarantees that people will regard each other as the enemy.
What Criminalization Won’t Do
What criminalization won’t do is end unsheltered homelessness. No one is choosing to live outside, so using the threat of jail to make them choose differently isn’t going to work. A city using criminalization to drive people elsewhere will only set off worse policies in surrounding communities. The cost and political controversy of criminalization means localities are unlikely to impose long prison sentences, even if courts were to allow it. Until humane shelter, housing, and services are made available, people will still sleep outside.
What the Alliance Will Be Doing
The Alliance is coordinating with the National Homelessness Law Center, and others, including people with lived experience of homelessness, on a national response to this case. The Alliance will be filing a “friend of the court” brief to help the Supreme Court understand the realities of homelessness and workable, cost-effective solutions. We’ll be using attention created by the case to educate the public about the same things. And we’ll be preparing so that however the Court rules, we can help and encourage communities to minimize bad practices and maximize good – so that people experiencing homelessness can attain the housing they deserve.