Column: Criminalizing homelessness is unconscionable, but is it unconstitutional?

Three people hold up signs that say "Housing not handcuffs" and "Housing solved homelessness."
Advocates for homeless people take part in a rally outside the Supreme Court on Monday during the Johnson vs. Grants Pass oral arguments.
(Kevin Wolf / Associated Press)

On Monday, the U.S. Supreme Court heard arguments about whether a small Oregon city can cite and prosecute homeless people for sleeping in public places when they have nowhere else to lay their heads.

If the case reveals nothing else about the state of our country, it reveals this: We continue to fail the homeless people who live among us, and no single court ruling in the world is going to solve the underlying issues — the lack of affordable housing, widespread income equality, substance abuse and a shamefully insufficient social safety net.

Opinion Columnist

Robin Abcarian

Grants Pass is a city of about 39,000 with a homeless population of about 600 and only enough shelter beds for 100; just one of the many American cities — especially in the West — that has been grappling with the issue of homelessness for years.


San Francisco, Los Angeles and other municipalities filed friend-of-the court briefs supporting the law. Advocates for the homeless say cities want more power to sweep away encampments. Cities say they desperately want some clarification and guidance from the courts.

In 2019, in a case known as Martin vs. Boise, the U.S. 9th Circuit Court of Appeals said cities cannot punish homeless people for sleeping on public property in the absence of an alternative. At the time, the Supreme Court declined to hear an appeal.

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But it did agree to take up the Grants Pass case after the 9th Circuit ruled in 2022 that citing and arresting homeless people who have nowhere else to go is a violation of the 8th Amendment’s prohibition against cruel and unusual punishment. If a city cannot offer shelter, the court said again, it should not be able to enforce criminal restrictions on public camping.

Listen, I don’t think homeless encampments should be allowed to displace children from parks, as happened during the pandemic, nor that tents should be allowed to proliferate on beaches and city sidewalks, blocking rights of way and spilling detritus into the streets. That’s not safe or healthy for anyone. Cities obviously must have the right to regulate the use of public spaces. But to harass homeless people with endless ticketing and fines? It might not be unusual but it’s definitely cruel.

For all the failings of Los Angeles, when COVID-era homeless encampments were cleared from Oceanfront Walk in Venice and along stretches of Venice Boulevard, intense efforts went into offering people spots in shelters, or hotel rooms, and a host of social services. Under the circumstances, that seemed as humane and balanced an approach as possible.

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But Grants Pass, which does not operate a single homeless shelter and relies instead on a Christian rescue mission that requires daily church attendance, passed a law allowing police to cite, fine and then arrest and even incarcerate repeat “offenders” for simply sleeping on public land, no matter that alternatives weren’t available.


This is the very definition of criminalizing homelessness.

Attorney Theane Evangelis, representing Grants Pass, disagreed: “These laws are about conduct for everyone,” she told the justices. “There is nothing in this law that criminalizes homelessness.”

But, as Justice Sonia Sotomayor pointed out, the law really does only apply to homeless people. She noted that, according to testimony from the police chief and officers in Grants Pass, “If a stargazer wants to take a blanket or a sleeping bag out at night to watch the stars and falls asleep, you don’t arrest them. You don’t arrest babies who have blankets over them. You don’t arrest people who are sleeping on the beach, as I tend to do if I’ve been there a while. You only arrest people who don’t have [another] home.”

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It’s not as if human beings can control the need to sleep, just as they cannot control the need to breathe or to eat.

“Sleeping is a biological necessity,” said Justice Elena Kagan, one of the court’s three liberals, who seemed hostile to the law. “Sleeping in public is kind of like breathing in public.”

“It seems both cruel and unusual to punish people for acts that constitute basic human needs,” said Justice Ketanji Brown Jackson.

Chief Justice John G. Roberts Jr. then wondered: “So if someone is hungry and no one is giving him food, can you prosecute him if he breaks into a store to get something to eat?”


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Of course you can, said the attorney for the Biden administration, which didn’t side with either party but made a third-way argument about reasonable powers to ban homeless people from sleeping outdoors.

What really leaves a sour taste about the Grants Pass ordinance is that we know it was not enacted to solve the very complex problem of homelessness. In 2013, during a community roundtable discussion about “current vagrancy problems,” Grants Pass City Council President Lily Morgan gave away the game: “The point,” she said, according to Oregon Public Radio, “is to make it uncomfortable enough for them in our city so they will want to move on down the road.” (Most of that city’s homeless people, according to court testimony, are from Grants Pass.)

This is unconscionable. But from the arguments, it’s not clear the court will say Grants Pass went too far and violated the “vagrants’” constitutional rights.

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“One point that was raised by Justices Kagan and Sotomayor in different ways is where people who have nowhere to go can be expected to go when cities ban them and simultaneously provide no resources for them,” Charley Willison, who teaches public health at Cornell and studies homelessness, told me in an email. “This gets at the crux of the issues many cities in the U.S. face.”

One of the original plaintiffs in the case, Debra Blake, slept in parks in Grants Pass for years. She had been told repeatedly by local police to “move along,” according to court documents, but there was nowhere in the city she could legally sit or rest. She had been repeatedly awakened by police and told to move. She was ticketed, fined, charged with criminal trespass and at least once jailed overnight.

At the time of her death in May 2021, at age 62, she owed $5,000 in unpaid fines.

For the crime of sleeping while homeless.