Cruel and Unusual Punishment

The National Health Care for the Homeless Council looks at the Supreme Court decision to allow punishing for unsheltered people sleeping outside

On Monday, April 22, the Supreme Court heard the case of Johnson v. Grants Pass — a case that determines whether it is cruel and unusual punishment for communities to ticket or fine unsheltered people for sleeping outside.

Many organizations submitted amicus briefs (or “friends of the court” arguments) that outlined their perspectives on this issue. The Health Care for the Homeless Community participated in creating the public health amicus brief, which argued that sleep is a biological necessity, that unhoused people have no control over the factors that impact quality sleep, and that poor sleep inflicts profound negative consequences to the health of people experiencing homelessness.

While the Justices were inside hearing the case, hundreds of advocates rallied outside to protest the ongoing arrests, fines, and other measures levied against people with nowhere else to go. An impressive array of national and local leaders from across the country — including Council CEO Bobby Watts — spoke passionately about the importance of providing housing and supportive services, not enacting more punishments.

At that time, it was difficult to know how the Court would rule after they deliberated for more than two hours. Some of the questions the Justices posed during the hearing did give clues to their thinking:

1. You don’t arrest babies who have blankets over them, and you don’t arrest people who are sleeping on the beach — it’s only homeless people who sleep outdoors will be arrested, correct? (Sotomayor)
2. If a homeless person had $250 [amount of the fine], don’t you think they’d stay in a hotel? (Kagan)
3. Breathing is a human need and you can’t say it’s a crime to breathe, correct? (Kagan)
4. Suppose the City decided that it was going to execute homeless people — that would be both cruel and unusual, wouldn’t it? (Jackson and Gorsuch) [Hint: the answer is YES.]
5. Where do we put them [unsheltered people] if every city, every village, every town lacks compassion and passes a law identical to this? Where are they supposed to sleep? Are they supposed to kill themselves, not sleeping? (Sotomayor)
6. What’s so complicated about letting someone somewhere sleep with a blanket outside if they have nowhere to sleep? (Sotomayor)
7. What about someone who has a mental health problem that prohibits them from sleeping in a shelter? Are they allowed to sleep outside or not? (Gorsuch)
8. Eating is a basic human function as well, that people have to do, just like sleeping. So if someone is hungry and no one is giving him food, can you prosecute him if he breaks into a store to get something to eat? (Roberts)
9. What if the person is in a homeless state because of prior life choices or their refusal to make future life choices? (Alito)
10. Would a backpacker who happens to be in the area for a few days be allowed to camp on public property? (Thomas)

Much of the discussion focused on legal arguments, prior cases, and definitions of terms like “homeless.” Many of the justices posed hypothetical situations for attorneys to respond to, and wrestled with how — or whether — the federal courts should be deciding these issues.

On Friday, June 28, the Supreme Court issued its opinion: They said it is not cruel and unusual to ticket, fine, or otherwise punish unsheltered people for sleeping outside, even if there are no shelter beds available. Naturally, the entire national homelessness advocacy community strongly disagrees.

The 74-page ruling is fairly dense, but here are five positions SCOTUS took that are particularly troubling:

1. Fines and tickets are neither cruel, nor unusual: Justices point to punishments such as “disemboweling, quartering, public dissection, and burning alive” as examples of punishments that are cruel and unusual because they are designed to cause “terror, pain, or disgrace.” The Court held that “none of the city’s sanctions qualifies as cruel” because they do not rise to that level, “nor are the city’s sanctions unusual, because similar punishments have been and remain among the usual modes for punishing offenses throughout the country.”
2. Fines and tickets are “tools in the toolbox”: The Court accepted California Governor Gavin Newsom’s argument that “policymakers need access to the full panoply of tools in the policy toolbox” to “tackle the complicated issues of housing and homelessness.” The Court also accepted San Francisco’s argument that the city “uses enforcement of its laws prohibiting camping” not to criminalize homelessness, but “as one important tool among others to encourage individuals experiencing homelessness to accept services and to help ensure safe and accessible sidewalks and public spaces.” (Note: many cities filed briefs making this same claim.)
3. Federal judges and local police can’t decide: The Court cited a prior case, saying “federal judges cannot begin to ‘match’ the collective wisdom the American people possess in deciding ‘how best to handle’ a pressing social question like homelessness.” The Court also questioned how cities and law enforcement officers could know whether shelter beds were available and/or whether someone was “involuntarily” homeless.
4. Fines and tickets only target conduct, not status: The Court drew heavily on a 1962 case (Robinson v. California) that found a city could not criminalize an individual’s status of having a substance use disorder — they could only criminalize a person’s behavior (for example: public intoxication can be illegal, but simply having an addiction cannot be made illegal). The Court applied this reasoning here — asserting that these laws apply to everyone, not just people who are homeless.
5. One Justice wants to criminalize further: Justice Clarence Thomas said the ruling in the Robinson case (mentioned above) was wrong and could be overturned in the future, saying “we should dispose of it once and for all” and that “the Court should certainly correct this error.” Applied here, this could mean the very existence of people experiencing homelessness could be criminalized in the future.

However, the majority opinion got one thing right: “Nothing in today’s decision prevents States, cities, and counties from going a step further and declining to criminalize public camping altogether.”

Indeed, Justice Sonia Sotomayor’s dissenting opinion laid bare the reality: “The City of Grants Pass jails and fines people for sleeping anywhere in public at any time … For people with no access to shelter, that punishes them for being homeless. That is unconscionable and unconstitutional. Punishing people for their status is ‘cruel and unusual’ under the Eighth Amendment.”

Make no mistake, this decision will make things much worse for unhoused people — especially Black and Brown unhoused folks, who are already arrested at higher rates than their white peers. Going forward, many local and state policymakers will increase punishments and arrests, while affordable housing remains elusive.

It’s completely unacceptable that policymakers continue to refuse to fund housing but are absolutely OK funding law enforcement, jails, and prisons for the most vulnerable in our society (and who made them vulnerable, I wonder.)

This double standard is cruel and unusual punishment.