Can cities criminalize camping? Here’s what to know about Supreme Court case.

Can communities make it a crime to sleep outside?

That question lies at the heart of a case being heard at the Supreme Court Monday.

Everyone involved in the case, City of Grants Pass v. Johnson, agrees that homelessness is a complex problem gripping the United States. But they disagree about how cities should be able to address it.

In 2013, Grants Pass, a small city in southwest Oregon, enacted an ordinance criminalizing public camping. A group of homeless individuals sued in 2018, arguing that because they had nowhere else to sleep – the city has a single 138-bed overnight shelter – the ordinance violated the Eighth Amendment’s prohibition on “cruel and unusual punishment.”

A panel of judges on the U.S. Court of Appeals for the 9th Circuit agreed. While cities can regulate camping in public spaces, they can’t criminalize it outright. Officials from both major political parties across the West, where homelessness is especially acute, say the ruling has hamstrung their ability to address homelessness. 

What is the case about?

The justices are only being asked to consider if “generally applicable” laws regulating camping on public property violate the Eighth Amendment. There are other legal issues and questions at play in the case.

The Supreme Court is now tilted toward originalism, the judicial philosophy that the Constitution should be interpreted according to its original public meaning. And Grants Pass is arguing that the high court’s Eighth Amendment precedents have strayed from the original meaning.

A series of rulings in the 1960s held that while someone can be punished for their conduct, it’s unconstitutional to punish someone for their “status.” You can criminalize drug possession, for example, but not drug addiction. In this case, the 9th Circuit cited those previous cases in ruling that Grants Pass can’t punish a person with no home for camping when they need to sleep.

Grants Pass argues that this interpretation of the Eighth Amendment is inconsistent with its original meaning. Courts are only supposed to determine if certain methods of punishment are “cruel and unusual,” the city says, not if punishments can be applied at all.

“Nothing in [the amendment’s] language immunizes certain conduct from all forms of punishment,” the city wrote in a brief. And neither the city’s civil fines for camping on public property nor its short jail sentences for serial offenders “are cruel and unusual.” 

The respondents counter that the city is punishing them for their very survival. The Eighth Amendment “prohibits punishing people for having an involuntary status,” they wrote in a brief. “Being involuntarily homeless is such a status, and when shelter is unavailable, it is a status that means you have nowhere to exist but outside.”

Furthermore, lower court rulings still allow jurisdictions to regulate camping on public property. The 9th Circuit ruled that Grants Pass can ban the use of tents in public parks and limit the amount of bedding materials used in a public place.

How can cities protect themselves?

Cities and officials across the Western U.S. say the ruling is stopping them from protecting residents. The city of Chico, California, in an amicus brief, said the 9th Circuit decision has “heavily restricted” its ability to combat homelessness.

“Residents do not understand why Chico cannot immediately address issues of open drug use, violence, theft, uncontrolled fires, environmental degradation, and other threats,” the city wrote in its brief.

The city says that it can only clear a homeless encampment if there is enough shelter space for every individual, and then provide at least 17 days’ notice before clearing the encampment.

In a brief supporting neither party, California Gov. Gavin Newsom wrote that the appeals court ruling is so ambiguous that district courts have held that it does prohibit cities from clearing encampments.

City policies “must respect constitutional rights and individual dignity,” he added, but state and local leaders need “flexibility ... particularly when faced with problems as complex as the crisis of homelessness afflicting many cities today.”

Advocates say that criminalizing homelessness is unlikely to reduce the homeless population. In another amicus brief, six states wrote that criminalization could even increase homelessness “by imposing debts or creating criminal records that make it harder to obtain secure housing.” 

Clare Pastore, a professor at the University of Southern California law school, admits that it is difficult for cities to enforce the 9th Circuit ruling, but only “because there’s no city that has ever provided enough [shelter] space.”

Homelessness “is a humanitarian tragedy. But making a humanitarian tragedy a crime doesn’t solve anything,” she adds. “Criminalization never housed people.”

The plaintiffs, for their part, call the cities’ position “political deflection.” As the issue has worsened, Western cities have found it “easier to blame the courts than to take responsibility for finding a solution.” 

If the Supreme Court rules in favor of Grants Pass, it will force homeless individuals in the city to move elsewhere. That could trigger a harsh trend.

“What happens when those jurisdictions push them back by imposing [tougher] penalties, setting off an escalating banishment race among municipalities across the West Coast?” ask the respondents. “Neither the City nor its amici say.”

How could the court rule?

The high court could rule narrowly, either upholding the 9th Circuit or saying the Grants Pass ordinance specifically is constitutional.

A broader rule could have significant consequences for U.S. cities and their homeless populations. The decision could also have broader consequences for the Eighth Amendment, which some conservative jurists have been calling for.

Thomas Hardiman, a judge on the U.S. Court of Appeals for the 3rd Circuit, said last fall that the precedents are so “inscrutable” they “require judges to ignore the law as written in favor of their own moral sentiments.” The justices, he added, should “return to the text and original meaning of the 8th Amendment.”

In recent years, the Supreme Court has held that the Eighth Amendment prohibits juvenile life without parole and capital punishment for those who committed offenses as juveniles. (Three years ago, a more conservative court made it easier to for states to impose life without parole sentences on juveniles.)

The Grants Pass case, however, is not like other recent Eighth Amendment cases. Those cases concerned methods of punishment for people convicted of crimes. This case concerns the status-based versus conduct-based punishment question.

But today’s Supreme Court is also much more conservative. The 1960s, in particular, “was just a very different era for the court, and it’s not clear to me that this court is going to follow that approach,” says Steven Schwinn, a professor at the University of Illinois Chicago law school.

“It’s a little hard to [predict] the direction it’s going to go,” he adds.

Professor Pastore, though, would be surprised if there are five justices who would endorse a ruling that could trigger a race to the bottom on punishing people for not being able to afford a place to stay.

“Even this conservative court would balk at that, because it’s such an obvious problem, this race between cities over who is most punitive,” she says.

“I don’t see this court saying anyone can sleep anywhere at all times. [But] I don’t see this court saying criminalization anywhere and everywhere is fine,” she adds. “This is a hard case to predict.”