As cities struggled to deal with escalating homelessness, the federal 9th Circuit Court of Appeals did what it often does: made matters worse. In its 2018 Martin v. Boise decision, the court said cities cannot enforce anti-camping measures unless they have sufficient shelter space. Rousting the homeless, the court found, is a violation of the Eighth Amendment’s prohibition on “cruel and unusual punishment.”
As a result, Western cities lost their ability to keep parks and civic areas from turning into tent cities teeming with drug use and misbehavior. The 38,000-population Grants Pass in Southern Oregon challenged the decision. It made it to the U.S. Supreme Court, which last week sided with the city. Despite overwrought analyses, the court upheld the Constitution and common sense.
In striking Boise, the high court dispensed with the 9th Circuit’s creative reading of the Eighth Amendment. The city imposed only minor fines on homeless campers. The most severe sentence – 30 days in jail – only applied to repeat offenders. “Such punishments do not qualify as cruel because they are not designed to instill ‘terror, pain or disgrace,’” per the ruling. They are not unusual, but rather the typical way governments handle violations.
The decision was a victory for the concept that state and local governments are best able to craft responses to basic-governance issues rather than federal agencies or federal courts. Grants Pass argued that it needed the flexibility to deal with this vexing problem. Boise instead imposed one solution: building housing for the homeless, despite the unrealistic costs involved in building enough beds to deal with every potential homeless person.
“The Eighth Amendment serves many important functions,” the court’s conservative majority wrote, “but it does not authorize federal judges to wrest those rights and responsibilities from the American people and in their place dictate this nation’s homelessness policy.” The court noted that the ordinance didn’t target homeless people per se – but applied to anyone including vacationers and backpackers who visited the city. In other words, it does not criminalize a person’s “status.”
That’s eminently sensible. And, of course, local and state governments are perfectly free to pass “right to camp” laws, although we doubt many residents would be too happy with that approach. That said, it’s unclear how overturning Boise will play out. Oregon, for instance, codified Boise in state law, which places limits on how cities can respond. Some California cities say they won’t change their policies but others (such as those in Orange County) say that they will.
Unfortunately, California and some Western states and cities continue to pursue the common-sense-lacking “housing first” policy, which treats homelessness as a purely housing problem. Most homeless people “have problems that make it that putting them in a shelter is not going to fix the problem without treatment,” the Goldwater Institute’s Timothy Sandefur told KGW 8 in Portland. He believes the decision will help cities provide treatment options.
It’s obvious that these ideologically-driven “housing first” policies have not worked, as homeless populations continue to soar. Different cities and states will now be free to try different approaches. Some will be good, others less so. However, experimenting in the “laboratories of democracy”is better than one approach imposed by judges. The Supreme Court got it right on this one.
