The US supreme court ruled Friday that cities can fine and jail unhoused people for sleeping outside, arguing that criminalizing camping when there is no shelter available does not constitute “cruel and unusual punishment”.
The 6-3 ruling is the most consequential legal decision on homelessness in decades in the US.
The case was brought by Grants Pass, Oregon. The city has local laws that authorize law enforcement to ticket and prosecute unhoused people. But the city had been barred by several courts from enforcing its ordinances because of a landmark 2018 ruling by the ninth circuit court of appeals.
That ruling, in Martin v Boise, applied to nine western states and held that giving people citations for sleeping outside when a community can’t offer shelter violates the eighth amendment’s ban on cruel and unusual punishment.
With its ruling Friday, the supreme court reversed the protections for unhoused people.
Some local governments had argued that the protections hamstrung their response to the growing homelessness crisis, an emergency that’s particularly acute in the US west.
Civil rights, public health and housing advocates, on the other hand, have argued that anti-camping laws, fines and jail time greatly exacerbate a humanitarian emergency, in effect banishing people from entire jurisdictions and making it exceedingly difficult to access services.
Sara Rankin, a Seattle University law professor and director of the Homeless Rights Advocacy Project – whose article on criminalization was cited in Sonia Sotomayor’s blistering dissent – spoke to the Guardian on Friday about the ruling, its impact on unhoused residents and the possibility of a dramatic expansion of efforts to criminalize the poorest Americans.
This conversation has been edited and condensed for clarity.
Let’s start with Oregon – what does this mean for unhoused people in Grants Pass?
It means that Grants Pass can enforce its 24/7 citywide ban on public homelessness. The question was whether cities should be able to jail or fine someone who has no other alternative but to live in public space – the unhoused folks who are considered “involuntarily homeless”. The city was already allowed to arrest people who had declined offers of shelter. Now, Grants Pass will likely be fining people who have no shelter options.
When you fine someone who can’t pay, the fine can eventually turn into a misdemeanor. Studies have shown that it doesn’t help an already poor person to be driven into debt. Fining someone makes them less likely to emerge from homelessness, including by ruining their credit score and making them unable to afford basic needs like food.
Beyond fines, the city of Grants Pass is going to eventually jail more people. This is punishing people who have done nothing more than exist in public space. This case was about whether you can punish people for the unavoidable consequences of being human. The supreme court said yes.
How do you expect the decision will impact other jurisdictions across the west?
This is quite possibly the most consequential decision in history up until this point relating to homeless rights. It’s hard to overstate how important it is.
I think more cities will attempt 24/7 citywide bans on homelessness. I think it will encourage cities to shift away from investments in evidence-based approaches like adequately investing in affordable housing, permanent supportive housing and diversion and shift toward more law-and-order, enforcement-led efforts to essentially jail and banish already marginalized people from public view.
Grants Pass argued it wasn’t criminalizing the status of homelessness, but criminalizing the act of camping in public. The supreme court majority in its ruling on Friday concurred, and said that criminalizing an act does not constitute cruel and unusual punishment.
Presumably cities could in the future go even further than Grants Pass has, as long as they frame their laws as prohibiting public camping, instead of prohibiting homelessness, although I don’t think that issue has been fully resolved by today’s decision.
Donald Trump and others have used increasingly dark rhetoric, threatening to force people into “tent cities”. Will the ruling embolden those kinds of efforts?
I think we could see the forced displacement of unhoused folks into what I would call internment camps out in the middle of nowhere – a mass migration of unhoused people from one place where their existence is banned to other places where the laws don’t ban their existence. Many cities already have authorized camps in far-out locations that are completely invisible to the general public. I learned about one that was bordered by a dump, a recycling center and railroad tracks – the quintessentially least desirable place.
The idea of rounding up unhoused folks and forcing them into camps or out of the jurisdiction entirely is obviously very concerning. And it should be of grave concern, because once something is invisible, you don’t know what’s happening to the already really vulnerable people living there. Trump has publicly contemplated using his federal authority to move people into the middle of the desert where they won’t bother anyone by existing. It’s a very dystopian vision of internment camps and the likely abuses and neglect that would come from that. It’s terrifying.
Prior to this ruling, cities already had quite a lot of latitude to restrict camping, correct?
Yes, cities could already sweep encampments as much as they like. In many cities, they’ve been sweeping tents at record rates. They could also already enforce anti-camping laws if there was something that could be shown to be an urgent public health or safety issue with respect to a particular encampment – for example, if an encampment was blocking a whole sidewalk. Cities could sweep without even giving notice in those circumstances. Under the previous standard, cities weren’t even required to provide adequate shelter. It just said if the city lacks shelter, it can’t jail or fine someone, which to me should be so straightforward, and yet somehow here we are.
How do you expect legal advocates for unhoused people will respond to this ruling?
The dehumanizing message of today’s decision is going to galvanize civil rights attorneys. It has to. Anytime somebody’s basic right to exist is threatened, civil rights activists have to regroup. And cities should not approach this too cavalierly. There will be legal consequences for cities that pursue 24/7 citywide bans on homelessness. All this decision does is remove the protections for unhoused folks under the eighth amendment of the US constitution. States across the country have analogs to the eighth amendment in their state constitutions. States can and often do interpret their state constitutional provisions to be more protective than the federal constitution. The eighth amendment at its core is really about how much we value the humanity of vulnerable people. So it’s crippling from a human standpoint to have that protection removed. But there are other avenues that homeless rights advocates and human rights lawyers can still pursue. They can make arguments under other federal constitutional provisions. There are still due process arguments under the 14th amendment. You can still argue there is selective prosecution. There are arguments that could be made under the fourth amendment [which protects people from unreasonable searches and seizures]. There’s the Americans with Disabilities Act [ADA], and most chronically homeless people would likely qualify as someone with a disability who has protections from state-sanctioned abuse.
What else should people understand about the impacts of criminalization?
Beyond camping bans, there are so many ways cities criminalize homelessness and make homelessness worse – anti-begging laws that say you can’t ask for help, laws about loitering, laws about sitting and standing in public places, laws that punish people for giving homeless people food and aid. Those laws have been growing over the last several decades and they are punitive policies that make homelessness worse.
Everyone wants to solve homelessness, but the real question is what’s the most effective and humane way to do it? The answer is never to arrest and fine people. We increasingly invest in these short-term illusions that some sort of change has occurred when really all you’re doing is just removing unsheltered people from view. You’re not extinguishing them. They still have to live someplace and exist.