Criminalization of Homelessness and Poverty Post-Grants Pass Is Still Unlawful and Ineffective at Reducing Homelessness

In June 2024, the U.S. Supreme Court ruled on City of Grants Pass v. Johnson, the landmark case that allowed cities across the country to use the criminal legal system to punish people experiencing homelessness. 144 S. Ct. 2202, 603 U.S. ___ (2024). According to the Court’s opinion, laws that prohibit sleeping and/or camping on public grounds do not violate the Eighth Amendment’s prohibition on cruel and unusual punishment, ignoring specific enforcement against people experiencing homelessness and poverty through fines, fees, arrests, and even jail time. In practical terms, people who are unhoused and who do not have access to shelter are not protected by the Constitution’s cruel and unusual punishment clause. After Grants Pass, states and cities can enact certain laws that effectively punish unhoused people needing to live in public areas.

Generally, laws that criminalize someone’s status are unconstitutional. Laws that criminalize conduct, on the other hand, may be permissible. In Robinson v. California, the Court held that criminalizing someone’s status as a substance user without engaging in illegal conduct involving prohibited substances was unconstitutional. 370 U.S. 660 (1962). However, the Court found that criminalizing the behavior and conduct associated with using illicit drugs was allowed.

But unlike Robinson, criminalizing the status of someone experiencing homelessness is indistinguishable from the conduct of sleeping. The City of Grants Pass, Oregon, tickets, fines, and, for repeated violations, jails people sleeping in public for purposes of maintaining a temporary place to live. Clearly, this conduct is completely unavoidable if someone is experiencing homelessness and has nowhere else to go to perform such nonviolent, life-sustaining, involuntary acts in public spaces. While the Court left the option of asserting necessity as a defense in state court proceedings, most people experiencing homelessness are unaware of such a defense. Such a defense is also not guaranteed to be available or immediately useful to persons in civil cases in all jurisdictions, as different standards may apply. Practically, where it even exists, there is no guarantee or funding for legal representation, and the delay in bringing the defense would mean needing to live unsheltered before accessing any state court remedy. This elusive option will not stop people from getting caught in the criminal legal system in the first place. 

Ultimately, the Court’s decision was a narrow one, focused only on whether the enforcement of generally applicable camping ordinances against homeless persons violated the Eighth Amendment’s cruel or unusual punishments clause. Id. at 2224 (“The only question we face is whether one specific provision of the Constitution—the Cruel and Unusual Punishments Clause of the Eighth Amendment—prohibits the enforcement of public-camping laws.”). The Court held the Eighth Amendment was an inappropriate vehicle to bring this type of challenge, finding that the cruel or unusual punishments clause deals with the allowable punishments after a conviction and, outside the narrow proscription against “status crimes” in Robinson, the Court found it does not address “antecedent questions” such as what a state may criminalize. Id. at 2217–18.

Increasing Punitive Approaches

The Grants Pass Court was careful to say that there may be other constitutional provisions that protect a person experiencing homelessness and poverty when states and cities “seek to enforce their laws against the homeless.” 144 S. Ct. at 2204. Notwithstanding this nod to other existing legal protections that all, including unhoused, people have available to them, since Grants Pass, many cities across the country ramped up efforts to address the visibility of homelessness in public places with threats of fines, fees, and jail time. The response is felt most acutely in the context of homeless encampment sweeps where cities use the criminal legal system to “address” and “manage” their street homeless populations and forcibly remove tent encampments from public view. Some cities, on the other hand, chose to respond in a constructive way by avoiding the use of the criminal legal system and continuing to find ways to house people or prevent them from ending up on the streets in the first place.

Cities and states that read Grants Pass too broadly as a green light to completely disregard the Constitution in their efforts to address homelessness will undoubtedly find themselves embroiled in more litigation. Justice Sonia Sotomayor’s dissent outlines other constitutional rights, such as due process or the right to travel, that continue to safeguard the rights of homeless persons to exist in the public places where they are forced to live. And the Court’s decision had nothing to say about other constitutional provisions that protect the personal property of homeless persons from unlawful seizure and destruction (Fourth and Fourteenth Amendments), the right to ask for help (First Amendment), or the right to equal treatment under the law (Equal Protection Clause of the Fourteenth Amendment).

Why and How Decriminalization Is Necessary

Not only is the criminalization of homelessness unconstitutional—even after the Court’s decision in Grants Pass—but it is the most expensive intervention to homelessness both in fiscal and human costs. The Grants Pass decision highlights the urgent need for more housing supports and services to help people experiencing homelessness or at risk of experiencing homelessness. Housing advocates have stepped up and loudly called for more political action, legislation, and funding to address the affordable housing and homelessness crisis gripping many communities across the United States. But the other part of this equation that needs to be addressed is how to urge communities to implement and enforce effective housing solutions instead of using criminal law, along with its costs, to manage and solve homelessness. 

After all, encampment sweeps and other measures to remove visible homelessness or temporarily house persons experiencing homelessness were already possible and happening before this decision, making the Court’s sweeping generalizations and restrictions on constitutional defenses to those activities unnecessary to effect homelessness abatement. This emphasizes the acute need for more advocacy and strategy on criminal justice reform at the intersection of homelessness and poverty. 

People experiencing homelessness rely on different systems of care, often simultaneously, to get help before and during homelessness. For example, an unhoused person may need medical attention and rely on the health care system to get their health needs met. Some rely on social services to get connected to housing, food, or employment support. Others receive housing help through the education system. As these and other systems have been responsive in coordinating and accommodating the needs of low-income, unhoused people, it’s important to continue building a broad coalition of diverse stakeholders and coordinating local housing policy across systems of care that can function as a network of support addressing the varying needs that may lead to or compound homelessness. 

Criminalizing homelessness, on the other hand, doesn’t help people get out of homelessness. Instead, criminalization costs more money and only traps people further into poverty with fines and fees they couldn’t afford in the first place and saddling them with a criminal record and debt that make it even harder to secure housing in the short and long term. But there is an opportunity to instead reinvest in the public policies that have worked historically without prejudice to house and prevent homelessness of local residents—prevention programs, housing subsidies, and affordable housing production, preservation, and protection. 

Communities that use Grants Pass as permission to target those groups risk more than just larger jail populations and unpaid tickets. The risk is that those policies may disproportionately target and impact protected classes of people. For instance, data from homeless systems and providers across the country demonstrates that persons experiencing unsheltered homelessness are more likely to be from underrepresented, marginalized, and vulnerable groups, such as LGBTQ youth, disabled adults, BIPOC (Black, Indigenous, people of color) families, and increasingly older adults and seniors. Cities that aggressively use policing and jail to target their homeless populations risk discriminating on the basis of race, disability, or other protected statuses in violation of federal and state statutes and constitutional provisions. This can place federal and state funding at risk without addressing the reasons why homelessness is compounded by the intersectionality of racial discrimination and other forms of oppression. 

How someone encounters the criminal legal system raises a broader set of issues on the federal, state, and local levels that merit policy and advocacy attention. Advocates should join and increase support of ongoing efforts to prevent someone experiencing homelessness from entering the criminal legal system in the first place through various upstream housing and homelessness supports and services. These efforts include preventing evictions, improving access to public benefits that provide housing stability, addressing fair housing issues, and pushing for more housing affordability. Other upstream investments include rental assistance programs, payment of rental and utility arrears, universal basic income trials, household and move-in costs that could be barriers to housing, and programs that help high-risk households retain their current housing and quickly obtain affordable housing.

Advocacy is also needed downstream once persons experiencing homelessness come into contact with the criminal legal system. A better understanding of what happens when they encounter the system, who they interact with—like law enforcement officers, lawyers, and judges—and what happens when they are in the system provides some additional key touchpoints where further advocacy is needed. Equally important is addressing their needs when they get out of the system and dealing with the collateral consequences associated with having a criminal record, including but not limited to their likely discharge from the system back into homelessness and expungement help so they can qualify for safe and stable housing.

Ultimately, however, we need to disentangle homelessness from the criminal legal system. It is not, as the City of Grants Pass argued, just another “tool in the toolbox.” We need housing, not handcuffs. We cannot solve homelessness through the use of law enforcement and prisons. Otherwise, our communities will continue to invest taxpayer dollars in an approach proven to make this situation worse instead of everything we know can make a meaningful difference.