Justices debate whether cities can make sleeping outside a crime

Several Supreme Court justices on Monday questioned the wisdom of an Oregon city’s ordinance that penalizes homeless people for sleeping in public, but the court’s conservative majority seemed wary of having federal courts intervene.

The case from Grants Pass, a small city in southern Oregon, has drawn national attention from city officials and advocates working to end homelessness, after the high court agreed to hear its appeal in January. The city’s “camping” ban prohibits people from sleeping in public with as little as a blanket if they are trying to maintain a temporary place to live. Penalties can include fines or jail time.

But there are not enough spaces in homeless shelters or other facilities to house all the people experiencing homelessness in Grants Pass.

An appeals court that covers much of the western United States struck down Grants Pass ordinance because it violated the Eighth Amendment’s ban on cruel and unusual punishment. The Ninth Circuit U.S. Court of Appeals has also blocked similar laws in other western cities, angering municipal officials who are trying to keep public spaces clear amid record numbers of people experiencing homelessness.

“The city’s hands will be tied [if the lower decision stands]. It will be forced to surrender its public places as it has been,” Theane Eangelis, an attorney for Grants Pass, told Chief Justice John Roberts during a two-and-a-half hour argument. “The Ninth Circuit has effectively imposed a municipal code … to regulate what the city can do in its public spaces.”

But much of Monday’s hearing centered on whether the city’s law punished people for who they are or for what they did. That’s because in 1962, the Supreme Court ruled that people could be punished for a discrete act, but not for their “status.” The 1962 case involved a California law that punished both drug use and drug addiction. The Supreme Court ruled that the Eighth Amendment prohibited people from being punished for their addiction because it was a status.

The liberal justices in Monday’s hearing argued that the Grants Pass law effectively punished people for being homeless, which they said was penalizing them for their status, too. Sleeping is a biological necessity—much like eating—that is only punishable when the person doing it is homeless, they argued.

“That’s a human necessity that everyone engages in, and really what’s happening is you’re only punishing certain people who can’t afford to do it privately,” Justice Ketanji Brown Jackson said.

But Eangelis disagreed with the idea that the Grants Pass law punished a status.

“I don’t think that homelessness is a status like drug addiction,” she told Justice Elena Kagan.

“Well, homelessness is a status. It’s the status of not having a home,” Kagan replied.

“I actually disagree with that, Justice Kagan,” Eangelis said, “because it is so fluid. It’s so different. People experiencing homelessness might be one day without shelter and the next day with it.”

Kagan said that response was “quite striking.” If not having a home is not a “status,” she said, that would mean that “you could criminalize just homelessness.”

The city’s lawyer said that there might be other legal problems with laws that punished homelessness, but they wouldn’t run afoul of the Eighth Amendment, because, she said, that provision of the Bill of Rights dealt with punishments that were imposed for breaking laws, not for classifying actions as crimes.

Kagan also questioned the severity of the Grants Pass law, saying it went far beyond what is necessary for the city to maintain control of its public places. The advocates challenging the ordinance said they would support laws that limited the times and places people could sleep in public, but they objected to a universal ban.

“If you were to come in here, and you were to say, ‘We need certain protections to keep our streets safe, and we can’t have people sleeping in any place that they want, and we can't have tent cities cropping up,’ that would create one set of issues, but your ordinance goes way beyond that,” Kagan said. “Your statute says that person cannot take himself—and himself only—and pick up a blanket and sleep someplace without it being a crime.”

But Roberts seemed to agree with the city about not classifying homelessness as a “status” because, unlike drug addiction, it could change so quickly. “You can remove the homeless status in an instant if you move to a shelter or situations otherwise change, or it can be moved the other way if you’re kicked out of the shelter,” the chief justice said. “That is a distinction from all these other things that have been labeled as a status.”

Kelsi Corkran, the lawyer representing the people who had been fined for camping in Grants Pass, disputed that. Someone can have the status of a “cancer patient” but suddenly lose it when they’re told their disease is in remission, she said. Someone who is poor could also lose that status suddenly, too, she added.

And Justice Samuel Alito suggested that experiencing homelessness might be a clearer example of “status” than drug addiction. People who are addicted to drugs can refrain from using drugs, he said, but people who have no place to live have no choice but to sleep outside.

Meanwhile, Justice Neil Gorsuch questioned the point of imposing jail sentences for repeat offenses of the anti-camping law. “You end up in jail for 30 days, then you get out, you’re not going to be any better off than you were before in finding a bed,” he said.

At times, though, it seemed as if the justices were looking for ways to avoid the central question of the case. 

Many of them noted that Oregon state lawmakers recently passed a new law that governs city regulations on homelessness, which might be applicable to the Grants Pass case. Gorsuch suggested that the right way to scrutinize the city’s law might be through the due process clause of the 14th Amendment. And Justice Amy Coney Barrett raised the idea that it would be easier to evaluate the law after criminal punishments such as jail time were handed down, rather than ruling on the case only after fines have been imposed.

Another recurring concern was how to determine whether people experiencing homelessness had other options. In Grants Pass, there are clearly not enough beds in the local shelter to house all the people without homes. But justices wondered how police would keep track of how many people were on the street and how many spots were available in local shelters. That would be especially complicated if courts or local officials had to determine whether the available spots were “adequate.” The nearest housing options might not be in the same city, or they might not accommodate people’s pets or privacy concerns.

But Corkran, the lawyer for the people experiencing homelessness, said the city had never identified a legitimate purpose for penalizing sleeping outside. “If you ask that question, every time they pivot to encampments, fires and sanitation problems, which are all non sequiturs” because cities are allowed to regulate all of those, she said. “This case is only about sleeping outside when there's no shelter available. And so I think that lack of penological purpose is significant.”

The court is expected to issue a decision in the case by the end of June.