The legality of ordinances penalizing those experiencing homelessness came into sharp focus during a Supreme Court hearing on Monday. The fate of so-called “camping bans,” particularly one practiced in a southwest Oregon town – Grants Pass – was the center of the debate. This city has been levying fines on individuals who use items such as blankets, pillows, or cardboard boxes as shelter while sleeping outdoors within the city limits.
City officials argue that the ordinances are broadly applicable, aiming to deter any citizen from camping on public property. However, the challengers see these ordinances as penalizing homelessness by criminalizing efforts of the homeless to protect themselves from harsh elements. This, they argue, constitute a cruel and unusual punishment, and thus, a violation of the Constitution.
The back-and-forths over “camping bans” came after a case in Boise, Idaho, where the U.S. Court of Appeals for the 9th Circuit ruled that the Eighth Amendment’s ban on cruel and unusual punishment prohibits the imposition of criminal penalties on unsheltered individuals for merely squatting or sleeping outside. Challenging Grants Pass’ ordinances, three individuals who are homeless, backed by this ruling, managed to get the lower courts to agree that such ordinances infringe on the Eighth Amendment.
In defense of the city, representative Theane Evangelis argued that Grants Pass, alongside numerous municipalities nationwide, resort to camping laws to maintain the integrity of their public spaces. She lamented that the court of appeals had stymied any efforts of enforcing camping laws, choosing instead to constitutionalize the policy debate over managing rising encampments.
However, the legal argument surrounding these ordinances is far from an agreement. Justice Brett Kavanaugh, doubting the benefits of such ordinances, questioned how enforcing these laws can rectify the homelessness problem, especially when adequate shelter isn’t provided. Justice Kavanaugh also raised concerns over the recurring nature of this issue if no beds are available upon the release of jailed violators.
Lawyer Kelsi Brown Corkran, representing the challengers, maintained that the city’s definition of a “campsite” essentially means anywhere within its limits that a homeless person utilizes a covering for shelter, making it near impossible for these individuals to avoid fines and jail time.
Judicial opinion seemed to lean toward empathy for the homeless, with some likening the necessity for them to sleep outside to basic human needs, such as breathing. Despite this view, some justices questioned the lines between status and conduct, whether being homeless was a status and thus protected under a previous ruling in Robinson v. California.
A common concern amongst the justices was the enforcement of such laws, with Justice Amy Coney Barrett asking Corkran whether it would violate the Eighth Amendment for the city to enforce its laws in other scenarios regarding basic human needs such as eating and using the bathroom.
The possibility of dismissing the Eighth Amendment argument altogether in favor of a “necessity defense” was also discussed, although it was countered with the obstacle of these not being recognized in cases in Oregon to date.
As expressed by Justice Elena Kagan, this case presents a “super-hard policy problem for all municipalities,” and as the city awaits the Supreme Court’s decision, both policymakers and legal representatives are intently observing the court to see whether criminal penalties for homelessness will be found constitutionally valid.
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