Visible reminders of the lack of affordable housing and insufficient support systems, such as the sight of tents and unhoused individuals, are prevalent in cities nationwide. In a seemingly quick but ultimately counterproductive response, many cities and states, such as Florida and over a dozen others, have enacted laws prohibiting sleeping outdoors, even sometimes for minor things like using blankets or pillows. Kentucky’s legislature, as an example, passed a bill permitting property owners to use deadly force against unhoused individuals on their premises without repercussions.
This has raised a central legal question: does criminally punishing individuals for sleeping outdoors on public property when they have nowhere else to go contradict the Eighth Amendment of the US Constitution, which outlaws excessive bail, fines, and cruel and unusual punishments?
As we look forward to the US Supreme Court hearing of Grants Pass v. Johnson on April 22, it is important to understand the ineffectiveness and fundamental injustice of using jailing sentences and criminal fines to address homelessness. The case was brought forward in Grants Pass, Oregon, where the city issued $300 tickets to individuals for sleeping in public spaces, despite the lack of any safe accessible shelter beds. This situation mirrors a nationwide issue, since many US cities face a significant shortage of affordable and safe housing units.
Judicial interpretations have previously opposed punishing unavoidable, human behavior, such as sleeping or using a blanket to try and survive a winter night, particularly in the absence of alternatives. Such an interpretation was upheld first in the 2018 Martin vs. Boise decision by the Ninth Circuit Court of Appeals, which concluded that cities can’t enforce criminal ordinances punishing homeless people merely for existing in public when there is no available shelter.
Current statistics show that on any given night in America, over 600,000 individuals are homeless, with nearly half sleeping in outdoor locations. The Department of Housing and Urban Development indicates a significant rise in homelessness among both sheltered and unsheltered populations across all states. This unprecedented level of homelessness is driven primarily by the lack of affordable housing.
Despite evidence showing that criminalization is the most expensive and least effective method, it remains the preferred policy. The hidden costs of this approach, such as policing, jailing, and clogging up courts, in addition to the barriers it forms for individuals seeking housing due to fines or criminal records, are substantial. However, these costs are generally harder to see, making the immediate action of removing a tent from a corner seem politically appealing.
A Supreme Court ruling attesting that people shouldn’t be held culpable for their survival could be pivotal in encouraging lawmakers to prioritize genuine, long-lasting solutions. These solutions should focus on ensuring that housing is secure and affordable, instead of relying on punitive measures that do not address the root causes.
For instance, cities like Miami, Milwaukee, and Houston have made strides in reducing their homeless populations through investments in housing and support services. From 1998 to 2019, a federal ruling in Miami disallowed the use of jail cells and fines as a response to homelessness. During this period, Miami-Dade County funded housing and services reduced homelessness by 90%. In Milwaukee, the start of a housing-first program in 2015 led to a 92% decrease in its unsheltered population. Houston, the nation’s fourth-most populous city, provided over 25,000 homeless individuals with apartments and houses, thereby reducing homelessness by 64%.
In conclusion, relying on criminalization is costly and shortsighted. It merely moves the issue away without making any improvements, exacerbating the problem, leading to higher costs and violating fundamental human rights and dignity. A Supreme Court ruling that recognizes the inhumanity of such penalties could pave the way for more effective approaches to end homelessness.
Will Knight, a senior litigation attorney and decriminalization director for the National Homelessness Law Center, contributed to this article. The views expressed in this article do not necessarily reflect those of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.