“Designed to be Cruel”: How Grants Pass Will Ramp Up the Policing of Homelessness

The Supreme Court blessed bans on sleeping outdoors. In a Bolts roundtable, three experts explain that this may encourage aggressive policing over long-term housing solutions.

Camille Squires   |    July 2, 2024

Fruitdale Park in Grants Pass, Oregon (AP Photo/Jenny Kane)

The U.S. Supreme Court ruled last week in the Grants Pass v. Johnson case that cities can enforce bans on people sleeping outside even when they have nowhere else to go.

In a 6-3 decision that fell along this conservative court’s usual ideological lines, the court upheld an Oregon city’s policy of doling out civil and criminal penalties to unhoused people who sleep outside even as the city lacked sufficient shelter. 

Unhoused plaintiffs had sued the city of Grants Pass in federal court, arguing that its camping ban violates the Eighth Amendment’s protections against cruel and unusual punishment. 

The six conservative justices on the Supreme Court, however, disagreed. “The Court cannot say that the punishments Grants Pass imposes here qualify as cruel and unusual,” Justice Neil Gorsuch wrote for the majority. 

In her dissent, liberal Justice Sonia Sotomayor accused her colleagues of criminalizing the very condition of being homeless. She called on the court to “prohibit punishing the very existence of those without shelter.”

The ruling overturns several decisions by the Ninth Circuit, which covers western states, including Oregon and California. In Martin v. Boise, the Ninth Circuit held in 2018 that cities cannot punish people for sleeping outside without providing adequate shelter options. The Ninth Circuit then reinforced that decision in 2022 when it struck down Grants Pass’ camping ban, siding with the plaintiffs. 

These rulings had put in place some protections from aggressive sweeps of homeless encampments in western states. But a vast suite of public officials, including many Democrats, asked the Supreme Court to lift those protections. The court obliged last week. 

Hours after the decision, Bolts held a roundtable discussion on what the ruling means with three people who have closely studied the effects of camping bans: Charley Willison,  an assistant professor of public health at Cornell University who studies public health and political responses to homelessness; Chris Herring, an assistant professor of Sociology at UCLA who has researched the criminalization of homelessness in liberal California cities; and Eric Tars, senior policy director at the National Homelessness Law Center, a national advocacy organization that filed an amicus brief in the Grants Pass case in favor of striking down the city’s policy. 

In a wide-ranging discussion, these three experts shared their worry that, even if the Grants Pass decision does not mandate any enforcement, it will only increase aggressive policing tactics against people experiencing homelessness instead of long-term solutions to a worsening housing crisis.

“One thing that does concern me is how much more significant rates of homelessness are now, compared to pre-pandemic,” Willison said. “How will elected officials proceed with this, when the crisis is so extreme?” 

Let’s get to the ruling: Is this a decision you were expecting?

Charley Willison: Unfortunately, I think probably for all of us in the room, this isn’t surprising. We know that cities have been using police to respond to homelessness through punitive civil and criminal penalties for a very long time, definitely for over a century, but becoming more formalized in recent decades. This ruling takes us back to the status quo of just allowing cities to be able to do this. 

Eric Tars: Many elected officials get boxed into non-solutions that are the most politically expedient because their constituents are asking for a quick fix response that can sweep individuals off a corner, using the threat of law enforcement or the enforcement of these laws. But because you’re not solving homelessness, for any of those people who are swept, they are just moved somewhere else and remain a problem. 

In the majority decision, Justice Gorsuch does cite all these claims by cities, that past cases somehow bind their hands and limit them in addressing homelessness. The Martin v. Boise decision, far from binding the hands of communities, actually opens up the policy discussion to solutions that actually work. 

It enables a good elected official to say, ‘Look, I agree with you, people should not be sleeping on that street corner. But the courts have told us, we can’t just sweep them away, unless we provide a better place for them to be. So let’s work together to get that solution that’s actually going to solve homelessness permanently, and is going to give both you as a housed constituent and those unhoused constituents a better result altogether.’ 

So communities lost a tool today to get us to the solutions that we actually need to end homelessness. And that’s disappointing and dangerous.

One of the key differences between Gorsuch’s majority opinion and Sotomayor’s dissent was over the question of whether the Grants Pass law was criminalizing the mere action of camping or, as Sotomayor denounced, whether it criminalized the status of being homeless. What do you make of this distinction?

Tars: No, there is really no distinction, as the dissent makes clear. One of the things that the dissent gets right, but the majority opinion deliberately gets wrong, is that this is not even a case where the rich and the poor of Paris are equally forbidden to sleep under the city’s bridges: This law only applies to people who are putting down blankets and sheltering themselves to form a temporary habitation. 

That means that if you have your own permanent residence and are just going out to enjoy the park, you can put down a picnic blanket, stargaze, whatever—and that’s fine. But if you are doing it because you have nowhere else to go, then the law applies to you and you are forbidden from doing it, and can be penalized for doing it. 

That’s why this does, in fact, criminalize only people who have the status of not having permanent housing or who are homeless. Despite the majority’s opinion, it was designed explicitly to be cruel to people experiencing homelessness.

Chris Herring: In the oral argument, there was a line of questioning to Grants Pass’ attorney asking, ‘Are there any cases of you giving tickets to say, a person passing through as a backpacker in town? Or anyone else who wasn’t actually homeless?’ They could not point to an example. So empirically, we know that the ticketing and this punishment was only also going to those who are unhoused. 

Let’s back up a bit and talk about how U.S. cities currently deal with homelessness. Why do so many places readily turn to police for enforcement of anti-homelessness statutes? What’s the history behind this? 

Willison: A huge part of the history of policing in the United States was about controlling public behavior for the benefit of politically privileged groups. During the 19th century, and through the 20th century, we saw explicit criminalization ordinances, quite similar to the ones we see today, start to be utilized by police departments to control the visibility of people who are sleeping in encampments. It was about hiding the visibility of poverty, of public displays of mental illness, for the preservation of property values for wealthy constituents. 

When the federal government got involved to start formalizing responses to homelessness in cities across the United States, they built this structure known as the “Continuum of Care,” off of the nonprofit structure that already existed—shelters, soup kitchens, things like this. [Editor’s note: A “Continuum of Care” is a local planning body that receives homeless assistance funds from the federal government.] Today, we have a whole wealth of expertise within the “Continuum of Care” system, but in the majority of cities they actually don’t have any teeth to be able to carry out policy responses to homelessness. This is the case in Grants Pass: The “Continuum of Care” is a regional entity that is not a part of local government. 

Tars: The opposition [in the Grants Pass case] pointed to the existence of vagrancy laws at the dawn of the country to say this is something that was baked in at the founding. But those vagrancy laws specified two things. One was that people from outside the city could be criminalized just for coming in and not having a job. They also mandated support to people who became homeless and were residents in the community. So the founders actually would have been appalled by the behavior of Grants Pass, who is criminalizing its own citizens who have lived there, often for decades but have been trapped like so many Americans by the rising costs of housing, while they don’t have rising incomes. 

So this is not in keeping with the more generous parts of the history of our country. That history was renewed during the Great Depression, when Franklin Roosevelt saw one third of his nation with no house and said we are adopting a second bill of rights, including “the right to a decent home” for every American, and he put that rhetoric into policy. From the 1940s up through the 1970s, we did not have mass homelessness in this country; we had a social safety net.

For the past 40 years, we’ve been losing deeply affordable housing, and that has produced the modern homelessness crisis. And their response has not been to renew our commitment to those programs that worked really well for decades, but instead to turn to the law enforcement approach. 

Now that the courts have ruled in favor of the city of Grants Pass, how will this affect the way cities and states criminalize homelessness? Do you expect more people to be fined and even taken to jail? For example, I saw that the city of Missoula, Montana, just passed a new anti-camping law. Do you expect more such ordinances to pop up in the wake of this ruling? 

Herring: I think it’s important to understand what the status quo was, even with the protections of the Ninth Circuit [Martin v. Boise in 2018 and Grants Pass in 2022]. In Grants Pass, what people faced even then was an incredibly punitive system; they currently have to pack up their stuff and move park-to-park every three or four days. Many receive over $200 fines when they’re not able to move quickly enough. 

Similarly, in San Francisco, after the city acknowledged Martin v. Boise, policing and criminalization actually increased. The only difference was that now they had to offer people shelter, and that shelter could be anything; at one point during my research, officers were offering people a one-night bed. If you were surviving on the streets with your survival gear and were offered a shelter for one night, sure, you could go to that shelter. But you’d have to give up your tent, your backpack, and after staying in shelter one night, you would be back on the street with nothing.

This just goes to show that these protections were very minimal to begin with. 

All that was being protected against was a ban of sleeping with a blanket for 24 hours. Now that that’s removed, that means that places can do that. That’s what we’re gonna have to see. Now, in places like San Francisco or certain liberal strongholds, there’s not the political will to be so blatant about that. But in places like Florida, and other conservative areas, absolutely. [Editor’s note: A new Florida law is set to go into effect in October that will ban homeless people from sleeping in public or face the threat of jail.]

This could lead to a race to the bottom of increasingly more punitive policies, moving people around. 

Tars: There is a really well-funded effort being made by billionaires with template legislation that they are shopping around to state legislatures right now, to criminalize homelessness at the state level, to create relocation camps. 

This is also explicitly part of former President Trump’s platform for the presidency, that he wants to create a national camping ban and relocation camps for people who simply can’t afford housing in their jurisdictions. He had similar plans back when he was in office, and the fact that the Supreme Court did not take up Martin v. Boise back in 2019 was what stopped him. 

So now the Supreme Court has basically paved the way both for cities, states and potentially the federal government to engage in more criminalization of people experiencing homelessness.

The court rejected the Eighth Amendment argument, so are there still constitutional protections for people experiencing homelessness? For example, a Justice Department investigation recently found that the Phoenix Police Department violated the civil rights of people experiencing homelessness in its sweeps of encampments. What mechanisms are still in place to be a check on police enforcement?

Herring: This [Eighth Amendment defense] was holding cities accountable. It was the leading legal strategy to give some baseline protection and injunction in cities. It definitely had a huge symbolic effect and moral authority; I think one reason that we saw California lawmakers asking for the court to hear [Grants Pass] in the first place was that they really didn’t like being portrayed supporting cruel and unusual punishment. 

There’s lots of other ways that these legal cases are going to be pursued under the Fourth, Fifth, 14th Amendments dealing with privacy property and due process. But that doesn’t carry the same moral charge to say “you’re not following due process” as committing cruel and unusual punishment. I think that will also have a big impact on how these cases are covered in the news media, and are thought about politically.

Tars: This ruling doesn’t mean we don’t have any legal tools left, the decision was explicit that there are other legal avenues that we can still take. The National Homelessness Law Center is going to be working with all of its legal partners across the country, to continue to find ways that we can vigorously defend the rights of people experiencing homelessness. 

But at the end of the day, even if the Supreme Court had ruled in our favor, that was never going to end homelessness on its own. It was going to give us an important platform that we could build on.

States and localities need to be doing all that they can to address homelessness, including things like increasing funding for truly affordable housing, changing zoning laws to allow for more housing, expanding health care coverage—and at the bare minimum, again, at least rejecting the false notion that jails and fines will solve homelessness.

Do you think there are any positive examples of U.S. cities that are addressing unsheltered homelessness without resorting to punitive solutions? 

Willison: Almost all cities across the country unequivocally use civil and criminal penalties, even in places where they will also have concurrent supportive housing policies that are using housing-first principles to provide people with access to housing and essential social and medical services.

So when we think about how do we move the needle, thinking about intergovernmental incentives is really important. One thing that came up in 2022, is the use of Medicaid 1115 waivers: A lot of states across the country are starting to do this so Medicaid can now pay for time-limited direct housing costs. This is something that’s brand new; these Medicaid 1115 waivers are explicitly targeting homelessness and are providing either direct housing cost or tenancy supportive services for people experiencing homelessness.

Herring: There are also more immediate alternatives to criminalization, which are alternatives to policing. We’ve been seeing cities create new models for responding to 911 calls regarding people experiencing homelessness and mental illness crises. These reroute calls that would go to police to other trained specialists, such as social workers or psychiatrists. 

Of the examples we have, the longest running one is in Eugene, Oregon; it’s called Cahoots. They handle over 20 percent of the total calls; they handle 24,000 calls a year, and of those, only 250 need police backup. [Editor’s note: These are the numbers for 2019.] So police can be involved when necessary but it’s not the go-to response, as it is in so many cities today. 

But some of the places doing best on creating housing also have more anti-homeless laws and some of the highest intensity of policing. The issue is we often hear that these have to go hand in hand: One of the arguments put forward in these liberal cities, and also written into the majority decision, was that these laws supposedly help cities push people into services. And this is just a myth. None of the empirical evidence points to this. Dozens of social scientific studies say rather that this sort of criminalization actually undermines people accessing those services. 

Criminal records prevent people from getting jobs, prevent people from getting housing, prevent people from even getting government assisted housing or getting into drug rehab, and in some cases, even accessing shelters because they have outstanding warrants. It’s really important to recognize how this is counterproductive rather than supportive.

Willison: You have these notions that criminalization must be necessary in some way. We know it makes it so much harder to end homelessness, but these notions persist because of the ways in which people experiencing homelessness continue to be systematically marginalized or excluded from policy debates. And I think something to consider, beyond big and small policy changes, is how to get people into the room. 

There’s a lot of great things that are happening through tenant union organizing, or representation through Continuums of Care, or other other advocacy networks where you can provide adequate representation in policy debates for groups that can’t be there themselves. Right now it’s really one sided, and until we shift the power dynamics, we won’t see shifts in the narratives, which is essential to changing these institutions.

The roundtable has been edited for length and clarity.

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