“Poverty and immorality are not synonymous,” the Supreme Court once observed.1 A set of laws that would restrict where “the poor and the unpopular are permitted to” exist on public property “only at the whim of any police officer,”2 is bad, the Court said.3 That kind of regime would “furnish[] a convenient tool for ‘harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.’”4 Though today’s Court may superficially uphold these principles, the practical implications of a recent decision suggest otherwise. Last Term, the Supreme Court in City of Grants Pass v. Johnson5 held that a city ordinance criminalizing involuntarily unhoused people who set up encampments on public property does not violate the Eighth Amendment’s Cruel and Unusual Punishment Clause.6 The Court’s ruling dramatically weakened, and potentially eroded, Eighth Amendment–based substantive limits on criminal laws.7 Instead of the Eighth Amendment, the Court suggested this vulnerable population should turn to common law criminal defenses, and some hazy, half-hearted constitutional challenges, to protect themselves.8 Yet this suggestion implicitly and incorrectly conflates pre- and post-enforcement challenges. In particular, it both ignores that post-enforcement challenges are practically much weaker remedies and avoids providing clarification necessary for alternate pre-enforcement claims. Ultimately, the Court’s framing leaves the involuntarily unsheltered with less clearly defined rights, blazing a trail toward a future of fines and incarceration that will perpetuate their time in poverty.
Over 600,000 people experience homelessness every day in the United States,9 approximately 600 of whom lived in Grants Pass, Oregon in 2019.10 Facing this national crisis, Grants Pass grappled with how to allay the concerns of its townspeople.11 Grants Pass responded with three ordinances. The “anti-sleeping ordinance”12 bars sleeping “on public sidewalks, streets, or alleyways at any time.”13 The “anti-camping ordinance”14 prohibits “[c]amping” on “any sidewalk, street, alley, . . . or any other publicly-owned property,” with a “[c]ampsite” defined as “any place where bedding, sleeping bag, or other material used for bedding purposes, or any stove or fire is placed . . . for the purpose of maintaining a temporary place to live,” including a vehicle.15 And the third applies the camping prohibition to Grants Pass’s parks.16 Fines for violating the anti-camping laws start at $295.17 If a person receives two citations in a year, they can be barred from city parks for thirty days.18 A third violation would be criminal trespass,19 punishable by a $1,250 fine and jail time capped at thirty days.20
In 2018, three longtime Grants Pass residents filed a class action suit against the town.21 Two plaintiffs, Debra Blake and John Logan, faced housing instability and had been intermittently unsheltered for a decade; the third, Gloria Johnson, lived full-time in her van.22 Together, they sued to enjoin the ordinances on behalf of themselves and a class of involuntarily unsheltered people in Grants Pass, challenging their constitutionality under the Eighth Amendment.23
Two key cases informed their challenge. Just one month earlier, in Martin v. City of Boise,24 the Ninth Circuit held that a similar pair of anti-camping ordinances were cruel and unusual under the Eighth Amendment when enforced against people with no access to alternative shelter.25 In turn, Martin rested on Robinson v. California,26 a 1962 case finding that the Eighth Amendment precludes the criminalization of someone based on their status (in this case an addiction to narcotics).27 Applying Robinson,28 the Martin court held that sleeping outdoors was an “unavoidable consequence” of one’s status as involuntarily homeless and nullified the anti-camping laws.29 Given the factual similarity, the Grants Pass plaintiffs argued these precedents made the city’s ordinances unconstitutional.30 A class was certified.31
The district court granted summary judgment in part and an injunction for the plaintiffs.32 Finding Martin to be controlling, the court deemed the ordinances cruel and unusual based on the unavailability of shelter beds.33 It also held that the ordinances violated the Excessive Fines Clause of the Eighth Amendment: The fees were both punitive and “grossly disproportionate to the gravity of the offense”34 of “engaging in the unavoidable, biological, life-sustaining acts of sleeping and resting while also trying to stay warm and dry.”35 The subsequent injunction struck down parts of the laws while preserving significant regulatory powers for the city.36 Time and place restrictions, the court ordered, could be set by Grants Pass for when involuntarily unsheltered people “may use their belongings to keep warm and dry”; tents could be banned so long as sleeping material wasn’t; and the city could “enforce laws that actually further public health and safety,” like those related to violence, harassment, or public urination or defecation.37 The city appealed.38
The Ninth Circuit largely affirmed.39 Hewing closely to Martin, the appellate court agreed with the district court that criminalizing involuntarily unhoused people violated the Eighth Amendment.40 It opted not to reach “the potential excessiveness of the fines.”41 The court then remanded the case to the district court, requiring it “to craft a narrower injunction recognizing Plaintiffs’ limited right to protection against the elements, as well as limitations when a shelter bed is available.”42 In the interim, Ms. Blake passed away; Ms. Johnson and Mr. Logan became the sole class representatives.43 A contentious bid for rehearing en banc failed.44 The city then appealed to the Supreme Court, which granted certiorari.45
The Court reversed and remanded.46 Writing for the majority, Justice Gorsuch first opined at length about the homelessness crisis facing America and the bind that local governments and states face,47 citing various amicus briefs written by local officials to suggest the heft of the problem and the need to regulate this behavior through criminal laws.48 Having explored the practical benefits of upholding the ordinances, the Court then turned to the doctrine, specifically Robinson.49 After a lengthy musing that Robinson was a “surpris[ing]” interpretation that the Eighth Amendment could not sustain, the Court determined Robinson irrelevant to the ordinances at hand.50 The Court argued that while Robinson barred statutes that criminalized status, the Grants Pass ordinances forbade certain actions, like “occupy[ing] a campsite.”51 Thus, Robinson was inapposite.52
The Court then declined to apply Robinson to cases where enforcement effectively criminalizes status,53 arguing that Powell v. Texas54 prevented such a reading. In Powell, the plurality held that Robinson did not bar a law criminalizing public intoxication; it was the act of being drunk in public, not the “mere status” of addiction to alcohol, that was the law’s target, even if, as plaintiffs argued, the law effectively criminalized status.55 For the majority, the same was true for the Grants Pass ordinances.56 To the Court, this also made good policy sense: Such an application of Robinson would chill a “‘productive’ democratic ‘dialogue’” of local government innovations addressing homelessness and instead place this power in the hands of unelected judges.57 Martin illustrated this issue; the Court expressed concerns with the calculations that judges would need to make to determine who are the “involuntarily” unhoused.58 Preferring the “experimentation” of municipal laws to the Ninth Circuit’s “Martin experiment,” and the unwieldy “back-of-the-envelope arithmetic” it required, the Court overruled Martin.59
Rejecting Robinson as irrelevant and Martin as wrongly decided, the Court found no reason to deem the Grants Pass ordinances cruel or unusual.60 Under a historical analysis of the punishment imposed, the ordinances were neither cruel, because they did not “superad[d]” “terror, pain, or disgrace,”61 nor unusual because fines are quite common punishments.62 At last, the Court offered that if people are truly involuntarily in violation of these ordinances, there are still “legion protections our society affords a presumptively free individual from a criminal conviction,” citing post-enforcement protections such as necessity, “[i]nsanity, diminished-capacity, and duress defenses.”63 Still, other avenues such as “limits on state prosecutorial power, promising fair notice of the laws and equal treatment under them, forbidding selective prosecutions, and much more”64 might provide opportunities to curtail these ordinances — just not the Eighth Amendment as construed by the majority.
Justice Thomas concurred.65 In a terse aside, he praised the Court’s focus in the Eighth Amendment inquiry on sentence alone.66 He then argued that Robinson’s substantive limits, and other similar Eighth Amendment cases, injected too much “[m]odern public opinion” into the analysis.67 The enforcement of these laws against the involuntarily unhoused via civil fines and exclusion orders was not suitable for Eighth Amendment analysis in the first place, in his view.68
Justice Sotomayor, along with Justice Kagan and Justice Jackson, dissented.69 Robinson, the dissent argued, cleanly resolved this case.70 Contra the majority’s policy concerns, the dissent viewed the Martin-based injunctions issued by the Ninth Circuit as narrow; cities could utilize their police powers and regulate encampments while respecting Robinson’s grant.71 But the majority complicated the issue; it overstated the difficulties of applying Martin, “spar[red] with a [Powell] strawman,”72 and painted local governments as monolithically in favor of these ordinances — all of which wrongly pointed them away from Robinson.73 To mitigate the impact on advocates for the involuntarily homeless, the dissent listed potentially viable pre-enforcement challenges that remained untouched, including challenges under the Excessive Fines Clause (as argued below), due process, vagueness, and banishment.74 The dissent closed by rebuking the Court for “abdicat[ing]” “its role in safeguarding constitutional liberties for the most vulnerable among us” by subjecting involuntarily unsheltered people in Grants Pass to enforcement under these ordinances.75
While expressing sympathy for the plight facing the involuntarily unhoused, the Court’s reasoning, both practically and doctrinally, papered over the great harm its decision imposes. After dismissing Robinson as inapplicable and finding that the Eighth Amendment doesn’t prohibit these laws, the majority intimated that the unhoused shouldn’t be overly worried by this holding, for they still have access to a plethora of post-enforcement defenses.76 But this framing contains two interconnected flaws. First, it ignores critical differences between pre-enforcement challenges and post-enforcement defenses, specifically that the latter are worse for the involuntarily unhoused. Second, by focusing on the post-enforcement remedies still available, the Court created a policy cover that allowed it to dodge doctrinal questions critical to the pre-enforcement options that do remain for the unhoused. At base, while the Court might express sympathy for the unsheltered, its approach seems to leave this population without effective recourse before or after anti-camping laws are enforced.
The Court’s missteps began with a neglect of the differences between post-enforcement defenses — substantive criminal law defenses raised in the context of a prosecution — and pre-enforcement challenges — constitutional challenges to a statute. Specifically, it ignored that post-enforcement defenses are often much worse for vulnerable populations; this is because much of the harm is in the enforcement itself.77 Laws like Grants Pass’s force people who have no other available shelter into more dangerous environments, such as highways and train tracks or abandoned, hazardous industrial lots, that raise the risk of physical harm.78 Fines and fees further impoverish involuntarily unhoused people, which may perversely impede their ability to exit homelessness.79 Receiving a criminal charge also affects their ability to secure employment, housing, social services, and bail.80 And to even vindicate these post-enforcement rights, unhoused individuals need to secure legal representation, which itself poses logistical obstacles.81
Post-enforcement defenses also have a low likelihood of success. The Court portended that “legion protections” would be available to involuntarily unsheltered people.82 But even its prior language betrayed this promise, with the Court acknowledging that only “some . . . jurisdictions” have necessity defenses to “certain criminal charges.”83 Yet, necessity isn’t generally extended to these cases; in fact, a number of states reject the defense in cases of economic need, such as homelessness.84 Even more troubling is the defense’s success rate: “The history of the necessity defense in American criminal law indicates that whatever the scenario . . . and whatever the context . . . the law’s response has generally been the same: no.”85 The same rings true for other defenses listed. The insanity defense is notoriously fact intensive, difficult to prove, and rarely successful.86 So too for duress: “[T]he defense traditionally requires the offender’s coercive circumstance to be the unlawful threats of another person,” making it a difficult fit for the unhoused.87 There’s also a paucity of cases representing involuntarily unsheltered people that could act as guideposts for applying these defenses.88 Finally, even if a post-enforcement defense were viable, the costs of representation, acquiring records, and effective expert testimony may be prohibitive for the unhoused and impoverished.89 In short: The Court’s implication that involuntarily unsheltered people’s rights would be well protected post-enforcement is far-fetched.
Given these difficulties, understanding the landscape of remaining pre-enforcement challenges outside of the now-inapplicable Eighth Amendment is all the more important for the involuntarily unhoused. Yet, the majority’s focus on post-enforcement defenses makes it easier for the Court to evade commenting clearly on the other pre-enforcement challenges discussed in its opinion. Two specific pre-enforcement challenges discussed by the Court — Eighth Amendment cruel and unusual punishment and due process claims — exemplify the Court’s haziness on the path forward.
In many regards, the Eighth Amendment’s cruel and unusual punishment test going forward is uncertain. Traditionally, the clause has had three potential modes of analysis: (1) whether the sentence imposed by the government itself is cruel and unusual; (2) a proportionality analysis — whether a punishment is “grossly disproportionate to the severity of the crime”; and (3) Robinson’s substantive limit on criminal laws.90 The majority’s diatribe against Robinson, while dictum, sent a strong signal that the third mode of analysis could be on the way out.91 But there is also a second, more subtle point of uncertainty: The majority reviewed the Grants Pass ordinances under only the first mode of analysis, but not the second.92 This is especially notable given that the Court was presented with an argument, both in Ms. Johnson’s brief and by amici, that the Grants Pass ordinances were cruel and unusual because they were grossly disproportionate.93 While the Court may not have intended this ambiguity, its decision creates uncertainty for the proportionality analysis going forward. To be sure, the Court didn’t go as far as to embrace Justice Thomas’s view that the Eighth Amendment should extend only to sentencing.94 Nor has the Court shown an appetite for undoing the proportionality analysis as of late.95 But as the dissent implicitly acknowledged, the majority’s lack of a clear statement on the Court’s “firmly rooted” proportionality analysis leaves room for interpretation.96 For lower courts that share Justice Thomas’s perspective, the majority’s lack of clarity on proportionality analysis leaves it in a potentially subvertable state.
The majority was similarly unclear about pre-enforcement due process challenges to anti-camping laws post Grants Pass. Admittedly, a due process question was not before the Court;97 but it curiously spoke at length about the potential success of this claim. Both the majority and dissent signaled that Robinson’s understanding, that “[e]ven one day in prison would be . . . cruel and unusual” punishment, fits more comfortably under the Fifth and Fourteenth Amendment’s Due Process Clauses.98 Indeed, the majority noted that the original argument in the appellant’s briefing in Robinson was a state due process claim.99 In keeping with the history-and-tradition analysis popular with the Roberts Court,100 both the majority and the dissent made inroads into the lack of historical roots for Robinson’s ordinance, implying that the same could be true for the Grants Pass ordinances.101 But the Court stopped short of vindicating the right altogether.102 This begs the question of why the Court engaged in the analysis at all. If the Court sees itself as “safeguarding constitutional liberties for the most vulnerable,”103 it’s unclear why the Court identified a threat to a constitutional liberty and yet chose to leave safeguarding it for another day.
Despite the Court gesturing to all the rights involuntarily unsheltered people may have — be it pre-enforcement rights to shield, or post-enforcement rights to remedy — it neglected to interrogate the practical and doctrinal remains of these rights. Advocates may still have some pre-enforcement tools at their disposal to try and keep harm at bay.104 But for now, the Court’s decision leaves this vulnerable population exposed to real harm today.