Supreme Court poised to make stunningly cruel decision in criminalizing homelessness | Opinion

Can the government make it a crime for a person to be homeless? The answer should be obvious to all, but few believe that is the conclusion the Supreme Court will come to when it decides Grants Pass v. Johnson, which will be argued on April 22.

The U.S. Court of Appeals for the Ninth Circuit has consistently ruled that the government cannot punish a person for sleeping in public if there is no place else for the person to sleep. This conclusion is right as a matter of law, good public policy and human compassion.

As a matter of law, the Supreme Court has long held that the government cannot punish someone for their status, such as being homeless. In 1962, in Robinson v. California, the court declared a California statute that made “the ‘status’ of narcotic addiction a criminal offense” unconstitutional, saying the law was “not one which (punished) a person for the use of narcotics, for their purchase, sale or possession or for antisocial or disorderly behavior resulting from their administration; it punished addiction itself.”

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The Ninth Circuit applied Robinson v. California to say that the government cannot punish someone for being unhoused. In Martin v. City of Boise, in 2018, the court found that it was cruel and unusual punishment to impose criminal penalties on homeless individuals for sleeping in public if there were not adequate shelter beds.

“As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter,” the court ruled.

The Ninth Circuit came to the same conclusion last year in Grants Pass v. Johnson, which is now before the Supreme Court. Grants Pass is a city in Oregon with a population of about 39,000 and a homeless population of around 600. The city adopted a series of ordinances meant to keep unhoused individuals from sleeping on public property. As the Ninth Circuit observed, “city ordinances preclude homeless persons from using a blanket, a pillow or a cardboard box for protection from the elements while sleeping within the city’s limits.”

Grants Pass ordinances provide for civil fines, exclusion orders from city property for repeat violations and criminal penalties for violating exclusion orders. The Ninth Circuit declared this unconstitutional, concluding: The “city of Grants Pass cannot, consistent with the Eighth Amendment, enforce its anti-camping ordinances against homeless persons for the mere act of sleeping outside … or for sleeping in their car at night when there is no other place in the city for them to go.”

This is clearly correct as a matter of law, but it is also right as a matter of public policy. No city is going to solve homelessness by criminally prosecuting the unhoused. Imposing fines that they cannot pay or putting them in jail for brief times is not going to take them off the street. The only solution is to provide shelters and housing.

The Ninth Circuit’s decision is also right as a matter of human decency; the Grants Pass ordinance is stunningly cruel in prohibiting unhoused individuals from having pillows, blankets or even cardboard to protect them from the elements. Everyone must sleep, and if there are not adequate shelter beds, there is no choice but to sleep outside.

Very few, however, think the conservative Supreme Court will agree with the Ninth Circuit. The attorneys for Grants Pass, in their brief to the court, urge the justices to go even further by effectively overruling Robinson v. California. There is every reason to be concerned given this court’s lack of respect for precedent that it will not only allow cities to criminalize homelessness, but also dramatically change the law and lessen the protections of the Eighth Amendment.

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Long ago, in the 19th century, the French poet and journalist Anatole France wrote, “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets and to steal their bread.”

I fear that is exactly what the court’s hypocritical message will be in Grants Pass v. Johnson.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law.








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