Housing Not Handcuffs: The Criminalization of Homelessness

Last week, the Supreme Court heard oral arguments in Johnson v. Grants Pass, a case that asks whether it violates the Eighth Amendment’s prohibition on cruel and unusual punishment to criminalize sleeping outside in jurisdictions where no alternative shelter is available.  Grants Pass, Oregon operates a series of municipal policies that allow the city to fine, ticket, and arrest people for sleeping outside or in parked vehicles in public places. Under the precedent of Martin v. Boise, a 2019 Ninth Circuit case, the district court and Ninth Circuit both struck down Grants Pass’s policies, holding that it was cruel and unusual to criminalize life-sustaining activities, including sleeping, in jurisdictions where there are more unhoused individuals than there are available shelter beds. Both Martin and Grants Pass rely on a 1973 Supreme Court case, United States v. Robinson, which struck down a law criminalizing drug addiction and interpreted the Eighth Amendment to proscribe the criminalization of status. 

The Supreme Court’s decision to hear Grants Pass jeopardizes this important constitutional precedent, opening up the possibility that local governments could criminalize individuals’ homeless status. Equal Justice Under Law was founded on the principle that being poor is not a crime, and that all people — regardless of status — are entitled to the constitutional promise of equal justice. There can be no equal justice when governments are permitted to respond to systemic poverty with fines, fees, and incarceration rather than with empathy, humanity, resources, and meaningful policy change. Our litigation reflects this belief: we have argued before courts around the country that no one should be held in jail longer because they cannot afford cash bail amounts, no one should be legislated out of their cities or towns because they cannot afford housing, no one should have their driver’s license revoked because they cannot afford fines and fees, no one should be denied the right to vote because of their prior criminal history or because they cannot afford registration fees, and no one should be subject to abusive and exploitative supervision or probation. This, and all of our litigation, is in the pursuit of equal justice, as promised by the Constitution.

The story in Grants Pass is no different: the municipal government would prefer to respond to rising homelessness with handcuffs and fines than with housing and services. Despite having no shelter space and a low-income housing crisis, Grants Pass decided to fine unhoused individuals for sleeping outside, fine them more for using a blanket or sleeping bag in the cold mountain winter, and eventually force them to leave town or be subject to arrest. This is neither constitutional nor effective. Homelessness and poverty are caused by systemic racism, stagnant wages and rising costs of living, lack of healthcare, and policy failures. Structural problems demand structural solutions; criminalization is nothing more than a costly way to make the situation much worse.  

Johnson v. Grants Pass is, fundamentally, a case about the kinds of communities in which we want to live — ones that ensure all people have a safe place to sleep at night or ones that arrest and ticket people with nowhere to go. Equal Justice Under Law has always believed in and fought for the first kind of community — one that treats all people equally under the law regardless of status, one that deploys its resources and not the criminal legal system to respond to structural inequality, and one that respects the dignity and humanity of all people. Equal Justice Under Law stands with Gloria Johnson and the brave plaintiffs fighting for these ideals in Grants Pass and beyond.