Supreme Court says city’s homeless camping ban not ‘cruel and unusual’ punishment

(WASHINGTON) — The Supreme Court on Friday ruled that a local ordinance to bar anyone without a permanent residency from sleeping outside does not amount to “cruel and unusual” punishment under the Eighth Amendment.

The 6-3 opinion authored by Justice Neil Gorsuch reversed an appeals court ruling that found an outdoor camping ban in Grants Pass, Oregon to be unconstitutional.

“Homelessness is complex. Its causes are many. So may be the public policy responses required to address it,” Gorsuch wrote. “At bottom, the question this case presents is whether the Eighth Amendment grants federal judges primary responsibility for assessing those causes and devising those responses. It does not.”

The case was the biggest test for the high court on the complicated and multifaceted issue of homeless rights in more than 40 years.

The decision is expected to have ripple effects nationwide in communities that have been grappling with a surge in homeless encampments amidst an unprecedented uptick in the number of unhoused residents. An estimated 600,000 people are homeless on a given night, according to the nation’s point-in-time survey.

“The Court has now restored the ability of cities on the frontlines of this crisis to develop lasting solutions that meet the needs of the most vulnerable members of their communities, while also keeping our public spaces safe and clean,” said Grants Pass attorney Theane Evangelis.

Gorsuch’s opinion concluded that ordinances like the one challenged in Grants Pass are not inherently cruel or unusual, and do not punish people based on their status but rather their conduct.

The city has wanted to assess a $295 fine for people sleeping outside. Individuals who receive multiple violations may be ordered from public property and arrested and jailed if they don’t comply.

“Different governments may use these laws in different ways and to varying degrees,” Gorsuch wrote, “but many broadly agree that policymakers need access to the full panoply of tools in the policy toolbox to tackle the complicated issues of housing and homelessness.”

Notably, the court made clear that homeless people are not without potential defenses against criminal charges for sleeping outsides when they have nowhere else to go, as Gorsuch said: “Nothing in today’s decision prevents states, cities, and counties from going a step further and declining to criminalize public camping altogether.”

A recent Oregon state law forbids the punishment of sleeping in public when a person has no available shelter. It is not immediately clear whether the Grants Pass ordinance can still be enforced.

“While this decision is disappointing, it is important to remember that the solution to America’s homeless crisis does not rest with the courts. That job falls to all of us,” said Ed Johnson, the director of litigation at the Oregon Law Center and lead counsel for the homeless people challenging the law. “The solution to our homelessness crisis is more affordable housing.”

Johnson said the Supreme Court also left open the possibility of other constitutional challenges to homeless camping bans under the Constitution’s excessive fines clause and the due process clause of the 14th Amendment.

Justice Sonia Sotomayor, in a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson, argued the ordinance punishes homeless people with nowhere else to go based on status.

“Sleep is a biological necessity, not a crime,” Sotomayor wrote. “For some people, sleeping outside is their only option. The city of Grants Pass jails and fines those people for sleeping anywhere in public at any time, including in their cars, if they use as little as a blanket to keep warm or a rolled-up shirt as a pillow. For people with no access to shelter, that punishes them for being homeless. That is unconscionable and unconstitutional.”

“The Constitution provides a baseline of rights for all Americans rich and poor, housed and unhoused,” Sotomayor added.

The decision was hailed by a bipartisan group of civic leaders and municipalities, especially across the West, which has seen a proliferation of encampments in recent years.

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