The Supreme Court can authorize governments to default to unlimited criminalization, an ineffective, expensive and cruel response. Or it can maintain restrictions on criminalization that encourage all governments to try humane and effective solutions.
A Los Angeles construction worker injured his back, leaving him unable to work. He and his wife lost their home and ended up living outdoors. They diligently signed up for lists to get subsidized housing and waited for years with no progress.
The police repeatedly would wake them early in the morning, search, handcuff and ticket them or take them to jail for the crime of living out in public. Upon release, they would return to the streets with nowhere to go.
In the next couple of months, the U.S. Supreme Court will decide Grants Pass v. Johnson, a groundbreaking case about whether local police can lawfully arrest, cite, or otherwise punish people for existing in public spaces when no housing or shelter is available. City, county and state officials, conservative think-tanks, business associations, law enforcement officials, and even the Biden administration and California’s Gov. Gavin Newsom (D) are all arguing for greater authority to enforce laws criminalizing living in public places.
In 2013, the city of Grants Pass, Ore., implemented a series of laws, similar to those the construction worker faced in Los Angeles. The city council president said that they intended “to make it uncomfortable enough for [people living on the streets] in our city so they will want to move on down the road.”
Five years later, in the case Martin v. Boise, the Ninth Circuit Court of Appeals modestly limited governments’ ability to enforce these laws. That ruling followed Supreme Court precedent holding that the government cannot punish a person for their status—only for their actions.
Shortly afterward, people without housing in Grants Pass filed a class action lawsuit asking the federal court to stop enforcement of those laws.
The court ruled that, without any place for them to go, the city could not enforce these laws against “Involuntarily homeless” people. The Ninth Circuit Court of Appeals upheld the ruling. City officials petitioned the U.S. Supreme Court.
These rulings still allow local governments to enforce criminalizing laws if there is at least some place in the jurisdiction at some time of the day where a person may sit or sleep. However, they establish a crucial moral baseline in finding that punishing someone for being poor and lacking housing is cruel and unlawful.
Grants Pass’ lawyers argued in their petition for Supreme Court review that “[p]ublic-camping laws are a critical (and constitutional) backstop as cities attempt to stop the growth of encampments….”
Some supporters of reversal argue that the city’s ability to punish people living on the streets is designed to actually help them, contending that criminalization is needed to force people to accept shelter and services. This position belies the fact that the court’s holdings only apply where there is no shelter available.
In their amicus brief supporting reversal of Martin and Grants Pass, law enforcement entities insisted that they were not arguing for criminalization, but claimed that arrest and citation would “leverage” people into shelters. Orange County, California’s brief described criminalization as “gentle nudges from law enforcement.”
The Los Angeles construction worker did not experience his many arrests and incarcerations as a “gentle nudge.” No one tried to “leverage” him to a shelter. People living on the streets describe criminalization as brutal and traumatic.
Those calling criminalization “leverage” ignore the reality that shelters can be unsafe and unhealthy. Shelters frequently require people to separate from partners and family, surrender property for destruction, and live without privacy.
Despite these conditions, actual “shelter resistance” is rare. People sign up for housing lists over and over again, waiting for valid offers.
In his dissent from the Ninth Circuit ruling, Judge Daniel Collins exposed an underlying motive behind the legal attack on the very narrow limitations against criminalization found in these two rulings. Collins insisted that Gloria Johnson sleeping in her van in Grants Pass was not involuntary because she could leave, simply move on down the road.
Of course, Judge Collins ignored the laws criminalizing existence in public spaces that the town “down the road" will surely enact when people from Grants Pass cross their borders. States in other parts of the country, not governed by the ruling in Martin, including Georgia, Texas, and Florida, are already enacting such laws.
Even “liberal” elected officials, including President Biden’s Department of Justice and California Gov. Newsom, submitted briefs asking the Court to adjust the Grants Pass’ holding in ways that will enhance criminalization.
Proponents of criminalization falsely assert that cities and counties have only two choices: Enforce laws against people living in public space or surrender their streets to expanding encampments. This claim ignores the many effective, humane, cost-effective tools that governments have to address the crisis.
Los Angeles County’s Project 50 offered housing and individually tailored services to the 133 people identified as the most chronically unhoused and vulnerable. All accepted and, four years later, 80 percent of them remained housed, with greatly improved health and living conditions.
A USC/UCLA study started in 2022 found that giving people a monthly payment of $750 for just six months dramatically increased the number who obtained shelter and improved their ability access essential goods and services.
Pandemic era eviction prevention measures helped reduce the rate of growth of people without housing at a time of economic devastation and high unemployment.
The federal government successfully houses hundreds of thousands of people across the U.S. through Section 8 tenant subsidies, but only funds the program to help about one-quarter of all who qualify.
Ultimately, the solution is to protect tenancies, preserve existing affordable housing and provide more housing for people with the lowest incomes. Driving people away from public spaces through criminalization causes suffering and simply moves them somewhere else.
The Supreme Court can authorize governments to default to unlimited criminalization, an ineffective, expensive and cruel response. Or it can maintain restrictions on criminalization that encourage all governments to try humane and effective solutions.
John Raphling is associate U.S. director at Human Rights Watch.
