“Homelessness is complex.” So wrote Supreme Court Justice Neil M. Gorsuch even as he and the majority of the court upheld a law that does nothing to recognize the complexity of homelessness. In a 6-3 ruling on Friday, the justices sided with a law passed by Grants Pass, Ore., that criminalizes homeless people for sleeping outside on public property.
On a day of bleak Supreme Court decisions, the ruling in City of Grants Pass vs. Johnson raises the grim question of whether cities and counties will rely more on anti-camping ordinances to deal with homeless people and encampments rather than doing the hard work of creating interim housing, such as motel and hotel rooms, and permanent affordable housing, often with services.
Those are the solutions — the only humane solutions — to homelessness and they require hard work, funding and patience.
This decision, cruelly, allows cities to deal with homeless people by fining, jailing and ultimately shooing them away from sidewalks and parks, leaving them to search out other sidewalks and parks. Impoverished people cannot pay fines, and so the penalties accumulate — sometimes going on their credit report or triggering a court bench warrant for failure to pay. That only hurts their chances of finding housing when they get a rental subsidy and apply for an apartment.
In letting the Grants Pass law stand, the court effectively overturned the 9th Circuit’s decision in Martin vs. Boise, which ruled that it was a violation of the 8th Amendment prohibition on cruel and unusual punishment to fine or jail homeless people for sleeping outside when there is no available shelter. The Grants Pass law had been found unconstitutional by a federal court and the 9th Circuit for the same reasons.
Gorsuch said the cruel and unusual punishment clause applies to types of horrific punishments (say, burning people alive) and that, essentially, fines for outdoor camping didn’t qualify. Nor, Gorsuch writes, do federal judges have particular competence to decide whether some people breaking a law — like camping outside — don’t have “moral culpability” for that because they were homeless and had no place to go. He said those questions are “generally best resolved by the people and their elected representatives.”
But that’s the problem — local elected officials, under pressure from their housed constituents, don’t always make the best decisions for poor people who live on the streets of their cities. In what universe is issuing fines to people who can’t pay a reasonable approach to homelessness?
Gorsuch cited a litany of amicus briefs from city, county, state and law enforcement officials complaining about how difficult and expensive it is to cope with homelessness, how homeless people often refuse offers of shelter and how anti-camping ordinances could help. The city of San Francisco, Gov. Gavin Newsom and Los Angeles City Atty. Hydee Feldstein Soto all filed amicus briefs asking for the ability to do enforcement or guidance on doing it.
Gorsuch wrote that different areas use anti-camping restrictions to varying degrees but that policymakers agreed they needed all the tools in the “policy toolbox” to tackle housing and homelessness. But, he said, “the U.S. Court of Appeals for the Ninth Circuit took one of those tools off the table.”
This is ridiculous. Anti-camping laws are not tools in the toolbox that fix homelessness. And citing people for living outside has nothing to do with creating housing. In fact, the Boise ruling that homeless people could not be fined unless there was non-religious shelter available was an effective tool — to disincentivize elected officials from harassing people rather than creating new housing.
Yes, it is difficult to grapple with homelessness, but the problem is not solved by jailing and fining people and pushing them from one sidewalk to another. Only adequate housing and services — including treatment for mental illness and substance abuse — will solve homelessness. It takes time and it takes money. Decades of under-investment in affordable housing and the loss of rent-controlled apartments have made the homelessness problem worse year after year.
Los Angeles Mayor Karen Bass, to her credit, slammed the decision, warning that it “must not be used as an excuse for cities across the country to attempt to arrest their way out of this problem or hide the homelessness crisis in neighboring cities or in jail. Neither will work, neither will save lives and that route is more expensive for taxpayers than actually solving the problem.”
In her dissent, Justice Sonia Sotomayor argued that fining people for sleeping outside who have no choice is indeed cruel and unusual under the 8th Amendment because it is punishing them for their status — something they can’t control. “That is unconscionable and unconstitutional,” she wrote.
She’s right. What a sad decision.
