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The Unavoidable Consequences of Being Human

PUBLISHED

Sara Rankin (@ProfSaraRankin) is Professor of Law at Seattle University School of Law and the Director of the Homeless Rights Advocacy Project.

Next month, the Supreme Court will hear arguments in City of Grants Pass v. Johnson, a case that concerns whether it is constitutional for cities to punish unsheltered people for sleeping outside, even when the city fails to provide any safe alternative. In this brief post, I hope to clarify what is at stake in this case, by discussing the groundwork laid by earlier decisions. I also hope to explain what is not at stake in this case, by describing how, in the wake of these earlier rulings, cities have become more creative and bolder in their efforts to hide homelessness.

Punishing Homelessness

At any given time, hundreds of thousands of people in the United States suffer from being homeless. Millions more are one missed paycheck or accident away from being so. Rather than adequately address this problem by using proven solutions—like prioritizing housing that people can afford and expanding shelter capacity—cities have instead increasingly adopted laws that seek to expel visibly poor people from public space. Examples of such laws include prohibitions on sitting, standing, sleeping, receiving food, asking for help, and protecting oneself from the elements—all actions necessary for survival. Since unsheltered people have no private place to perform such actions, they are virtually guaranteed to violate these pervasive laws. The consequences are severe; research shows that when an already vulnerable person is saddled with a legal violation, they are more likely to remain homeless, get sicker, go to jail, and even to die.

For the past several years, the morally repulsive impulses behind such laws have been barely constrained by the modest constitutional protections articulated in several cases, most importantly Martin v. City of Boise. In this Ninth Circuit case, a group of people experiencing homelessness in Boise alleged that the city violated their Eighth Amendment rights by outlawing sleeping or camping in public, even while the city did not offer sufficient shelter to serve the existing homeless population. The court agreed. Drawing on a long line of US Supreme Court jurisprudence, the court held that the 8th Amendment prohibits punishing the “universal and unavoidable consequences of being human.” In application to the homeless plaintiffs in Martin, the court thus reasoned that the State “may not criminalize conduct that is an unavoidable consequence of being homeless — namely sitting, lying, or sleeping on the streets,” and that Boise thus could not “criminalize indigent, homeless people for sleeping outdoors on public property, on the false pretense they had a choice in the matter.”

Martin’s interpretation of the Eighth Amendment is hardly radical. Aside from following clear federal precedent prohibiting states from punishing people for circumstances they cannot control, the Martin court took pains to explain the limits of its holding, emphasizing that cities still retain broad discretion to address homelessness. Martin doesn’t require cities to do anything; it merely requires them not to do something: not to prosecute people for involuntarily surviving in public space when there’s nowhere else for them to go. Indeed, the Martin court explicitly clarified that it “in no way dictates to the City that it must provide sufficient shelter or allow anyone who wishes to sit, lie or sleep on the streets at any time and in any place.” Martin explicitly does not cover homeless people who have access to adequate shelter; it does not cover people who are voluntarily unsheltered or “choose” to be homeless.

Moreover, Martin says that even if shelter is unavailable, cities can still prohibit sleeping outside at particular times and in particular locations. Martin’s own holding, along with the persistent and prolific rates of sweeps continuing to occur throughout the country, proves that Martin hardly “hamstrings” cities, despite cities’ protestations to the contrary.

In 2022, the Ninth Circuit’s ruling in City of Grants Pass v. Johnson extended this logic to civil sanctions. The class action challenged civil ordinances that prohibited camping and sleeping, a park exclusion ordinance, and related criminal trespass laws as unconstitutional under the Eighth and Fourteenth Amendments. Grants Pass, despite having zero homeless shelters, had issued several hundred citations and incident reports under these ordinances. For many homeless people, such civil infractions often mutate into criminal misdemeanors, as they impose conditions—showing up to court, avoiding an area for a significant period, or paying a fee—that are difficult to meet due to sickness, poverty, lack of transportation, and mental illness. Outcomes like criminal records and ruined credit scores make it even harder for folks to find housing, reminding us that criminalization makes homelessness worse.

The decision also acknowledged the practical extension of Martin’s logic to people who took minimal efforts to protect themselves from the elements. In the wake of Martin, Grants Pass amended its anti-sleeping and camping ordinances to remove the word “sleeping” in an effort to distinguish sleeping—which the City seemed to acknowledge was involuntary—from camping, an activity the City argued was voluntary. In doing so, the City joined many others, where even mere possession of a blanket or pillow in a public park can lead to arrest. Rejecting this move, the court ruled that “it is not enough under the [Eighth] Amendment to simply allow sleeping in public spaces; the . . . Amendment also prohibits a city from punishing homeless people for taking necessary minimal measures to keep themselves warm and dry while sleeping when there are no alternative forms of shelter available.”

It’s these extremely modest constitutional protections that are under attack in Johnson’s appeal. If those modest protections are removed, many advocates fear it will be open season on the most vulnerable members of society. This outcome would be bad not only for unhoused people but for all of us, because research overwhelmingly shows that punitive approaches to homelessness are more expensive and less effective than actual solutions, such as providing housing.

Hiding Homelessness

If the Supreme Court is interested in the law and human decency (an open question), they should uphold the rulings in Johnson and Martin. Yet even if they do, homeless people will still face significant threats from cities. Neither case prevents cities from sweeping encampments and punishing homeless people in a variety of circumstances, and cities have continued to do so with abandon. According to Seattle’s own records, in 2022, sweeps spiked to more than 900, a rate of a little more than 2.5 sweeps a day. By justifying the intensified schedule of sweeps as necessary for “public health or safety,” the City excused itself from offering notice, services, or shelter before sweeping an encampment.

More broadly, as I have argued at length elsewhere, cities are adapting to Martin not by curbing punishment for homelessness but by giving punishment a makeover. Several West Coast cities, for example, are seeking to achieve the same outcomes—forced treatment, removal from public spaces, and confinement—through more robust involuntary commitment laws. Such laws generally provide that anyone causing an immediate danger to themselves or others or who are gravely disabled and cannot secure their own food, clothing, and shelter because of serious mental illness or chronic alcoholism can be compelled into treatment. Though supporters often frame these efforts as compassionate, current analyses suggest involuntary commitment is not only ineffective but could negatively impact patients. Once confined and out of view, the plight and suffering of unsheltered people is hidden and no longer a pressing concern to the public.

West Coast cities have also increasingly pursued efforts to round up unsheltered people into congregate FEMA-style tents or similar mass shelters. Here again, the potential adverse effects to already vulnerable people are clear. Many unsheltered people struggle with physical health issues that make congregate settings untenable or suffer from mental or behavioral health challenges that can be worsened by congregate living. These issues are among the reasons why many unsheltered people rationally refuse offers of shelter. Even if shelter is available, clients may feel it is too dangerous, unhealthy, unclean, destructive, or stressful to go. Still, cities view these mass shelters as a way to segregate unsheltered people in particular areas, and as a justification to cite or arrest them if they either refuse to go into a shelter or if they are found trying to survive outside of one.

While these developments might technically comply with Martin, they threaten to undermine the very rights Martin sought to protect. Cities are effectively punishing unsheltered people for having no safe and legal place to go. Thus, no matter what the Court decides in the following months, it will do little to stem the atavistic impulse to hide homelessness. No judicial decision can. Instead, we need political coalitions that push cities to pursue more effective, nonpunitive, and supportive ways to integrate homeless individuals into the community. We need laws that focus on ending the suffering of unsheltered people, rather than merely removing them from view.