The Grants Pass decision is limited because it focused on the wrong constitutional amendment. Whether the Eighth Amendment’s protection against cruel and unusual punishment prevents unsheltered people from being removed from encampments on public property was a far too limited legal question for a issue of this magnitude and complexity.
By deciding that unsheltered people have no constitutional protection to camp on public property, the divided court reflects the political polarization around homelessness — where everyone is correct depending on which side of the glass they choose to look through.
The dissenting justices rightfully note that tens of thousands of unsheltered Americans are the victims of poverty, an acute shortage of affordable housing and underlying physical, mental health and substance abuse conditions. They rightfully question where these people are supposed to go.
The court majority speaks to the reality that large tent encampments are unhealthy and unsafe for both the people living in the encampments and for the neighborhoods and business corridors in American cities.
If allowing people to live in encampments or removing them without anywhere to go is the choice, most people see both choices as cruel and unusual.
What if the legal, moral and policy choice was different?
The next case (given the composition of the U.S. Supreme Court, maybe asking California courts to weigh in makes more sense) should pose questions fundamentally different than whether people should have a constitutional right to camp on public property: Should state and local governments have a legal obligation to provide some form of dignified housing and services to people who are unsheltered? And should unsheltered people have a legal obligation to accept those offers?
I believe strongly that the answer to both questions must be yes.
Society, through its governments at all levels, must have a legal obligation to genuinely offer everyone unsheltered a safe and dignified place to live indoors. Temporary shelter is not enough.
With the evolution of manufactured housing that can be built faster and for less, a national Marshall Plan to dramatically increase production is possible, especially if there is a legal requirement to execute such a plan.
Society, through its governments, also must provide mental health and substance abuse care to everyone who is unsheltered and in need. California has made great strides with the wraparound care provided by my 2004 Mental Health Services Act — enhanced by the recent passage of Proposition 1.
But it is still not a requirement for counties to serve everyone who needs it. Unsheltered people must have a legal obligation to accept the offer of housing and services. If they do not, the government can seek to require them to do so, and not allow them to remain in an unsafe and unhealthy encampment.
Whether the next test case tries to expand the substantive due process clause of the Fifth Amendment or its California counterpart, or elevates some other federal or state constitutional provision, the idea of combining rights and responsibilities is both intuitive and potentially powerful.
The current frame as decided in Grants Pass allows partisans to easily stand on one side. Either you are an advocate, insisting that the rights of the unsheltered are always paramount, or you are a frustrated business leader or resident insisting on protecting our broader community.
Most people know it’s not one or the other. People are compassionate and know that people need real help. People are frustrated and know we can’t continue to allow people to live outdoors.
In Sacramento, we just reported a 41% decrease in unsheltered homelessness since 2022. We achieved this dramatic progress through twin strategies: We Increased our temporary housing capacity by 84% and our permanent housing slots by 29%.
Today we offer more people help than ever before. We are also telling them they can no longer live in large encampments, block sidewalks or limit others’ enjoyment of parks.
Imagine if the law required us all do even more.
Darrell Steinberg is the mayor of Sacramento. He is a former California Senate president and author of the Mental Health Services Act. Distributed by CalMatters.org.
