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Supreme Court weighs whether cities can punish unhoused people for sleeping outside
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Today, the U.S. Supreme Court is hearing a major homelessness case for the first time in decades, with arguments over whether people can be punished for sleeping outside if there's no shelter available. The decision could have sweeping implications for the record number of people living in tents and cars, and the cities and states struggling to manage them.
The Supreme Court declined to hear a similar case out of Boise, Idaho, in 2019. But since then rates of homelessness have spiked. An annual federal count found more than 250,000 people living in parks, on streets, and in their vehicles. Sprawling street encampments have grown larger and expanded to new places, igniting intense backlash from residents and businesses.
Today's case centers on the small city of Grants Pass, Ore., which has a population just under 40,000 and is a symbol of just how widespread the problem has become. A slew of other cities and states — led by Democrats and Republicans alike — have urged the justices to take up this issue.
Cities say the courts have hamstrung efforts to address homelessness
The debate before the court goes back to two rulings by the 9th U.S. Circuit Court of Appeals, which has jurisdiction over nine Western states — where a large share of the U.S. homeless population lives. In the Boise case, the court said in 2018 that under the Eighth Amendment, it's cruel and unusual to fine or jail someone for sleeping on public land if there's no adequate shelter available. That applied to criminal penalties. A 2022 decision out of Grants Pass expanded that to include civil penalties.
Now, Grants Pass v. Johnson poses a challenge to both appeals court decisions.
The city argues that camping restrictions are commonplace across the U.S. and are essential to public health and safety. It says sprawling homeless encampments are dangerous for those living in them, who often face theft or assault and are at risk of being hit by passing vehicles. And it notes many encampments include people with untreated mental health conditions and drug addiction, making public areas threatening no-go zones for families with children and others.
But Grants Pass and other Western cities say their hands are tied when they try to keep these public spaces safe and open for everyone.
"It is doing more harm than good to put this issue before the courts to solve," says Theane Evangelis, a lawyer for Grants Pass. She says the 9th Circuit decisions have spawned dozens of lawsuits and turned federal judges into micromanagers of local homelessness policy. "It's led to endless litigation and paralysis at a time when we most desperately need action," she says.
Cities also say the courts have left a lot of questions unanswered. For example, what exactly constitutes adequate shelter? How is a local police officer supposed to determine if someone in a tent truly has nowhere else to go? And what if there is a shelter bed open, but someone refuses to go? Many shelters ban pets, have early curfews and limit the belongings people can bring in.
In amicus briefs supporting Grants Pass, dozens of local officials across the West say they need more clarity, and more leeway, to tackle this complex problem.
Advocates for the unhoused say criminalization is counterproductive
Advocates for people without housing in Grants Pass say the city's camping restrictions were more aggressive than most and aimed to push people out of town. The rules effectively meant someone could be ticketed or fined for sleeping with a blanket or pillow in any public space at any time.
Ed Johnson of the Oregon Law Center is one of the lawyers opposing Grants Pass. He says the city's rules criminalized not just people's conduct, but their very status, of simply being unhoused, which courts have said is not allowed.
"Punishing someone for doing something they have no control over, no ability to not do, is not going to end that status. In fact, not only does criminalization not work, it makes matters worse," Johnson says.
That's because it's even harder for someone to get housing if they have a criminal record or have debt from repeated fines. Johnson says it's also expensive to police and jail people, and can divert money away from solving the bigger problem with things like more affordable housing.
Whatever the decision, this case won't solve the homelessness problem
States and cities across the U.S. have struggled to manage record rates of homelessness. Some in the West have found ways to limit encampments and even clear them out without running afoul of the 9th Circuit rulings. Elsewhere, several states have taken a more sweeping approach with camping bans. Florida's governor recently signed a law that seeks to move unhoused people off public property altogether and into government-run encampments.
Some worry that a decision in favor of Grants Pass will lead to more such moves. Or even a worst-case scenario of a "banishment race" if communities seek to push people out of their jurisdiction. "Where do people go [for help] ... if we have a domino effect?" says Ann Oliva, CEO of the National Alliance to End Homelessness.
Grants Pass and other cities argue that the 9th Circuit's ruling has fueled the expansion of homeless encampments. But whichever way the case is decided, it's not likely to dramatically bring down the enormous number of people living outside in tents and vehicles. Many places simply don't have enough shelter beds for everyone. And more importantly, they don't have nearly enough permanent, affordable housing. The city of Grants Pass is short by 4,000 housing units; nationally, the deficit is in the millions.
That shortage has pushed rents to levels many cannot afford, which advocates say is a main driver of rising homelessness. Even where places are investing heavily to create more affordable housing, it will take a while to catch up. This Supreme Court case won't solve any of that, but it could dramatically shape the lives of those forced to live on streets, parks and back alleys for years to come.
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