The perplexing issue of homelessness and its intersection with the law is something that has once again risen to the forefront of legal debate. This time, the Supreme Court of the United States (SCOTUS) is slated to hear a case revolving around the constitutionality of de facto banning homeless individuals from public spaces. This consideration arises within the context of the case City of Grants Pass v. Johnson.
Current vagrancy laws exist that penalize activities homeless individuals often engage in out of necessity, such as sleeping outdoors. These laws, which some argue are undeniably cruel, have thus far not been elevated to the level of constituting cruel and unusual punishment in the eyes of the courts.
The case in question, however, presents a more complex situation. It seeks to determine the fairness of jailing homeless individuals for lacking a shelter to retreat to at night, especially in situations where the city offers no kind of shelter to help them avoid staying on the streets.
Antonia K. Fasanelli, the executive director of the National Homelessness Legal Center, elucidates the essence of the case in an amicus brief. Fasanelli notes, “This case is really about whether the Constitution protects unhoused people against punishment when there is no shelter or housing available to them.” Further, the executive director surmises that criminalizing homelessness does nothing more than exacerbate the problem (ABA Journal).
The likelihood a $295 penalty (Courthouse News) for sleeping outside or seizing their tent will help the homeless get off the streets is slim. In fact, it seems more probable that such a punishment would directly aid in their path to a jail cell rather than a home.
Those who advocate for the arrest of the homeless place an emphasis on a different aspect of the legal spin. In an amicus brief for her city and several others, Seattle City Attorney Ann Davison states, “Homelessness is complicated. The constitutional question presented in this case is not.” She argues that the 9th Circuit has imposed a rule that before telling someone they cannot stay where they are, local governments must first offer an alternate place to go – a policy judgement she deems too rigid.
What lies ahead if SCOTUS gives the go-ahead for status-based discrimination is a question that remains unanswered. However, these rulings could have profound effects on numerous sectors of society, such as those who live in poverty.
The case raises questions about protecting the interests of landowners versus accommodating the country’s homeless population, a debate that has broad implications for the understanding and application of the Constitution’s Eighth Amendment (Above the Law).