WASHINGTON (CN) — The vast homelessness crisis muddled the Supreme Court’s review of an Oregon city’s public sleeping ban on Monday, leaving the justices unsettled over the implications of limiting local government's ability to address the problem.
Several justices suggested that Grants Pass, Oregon, had unconstitutionally criminalized the status of homelessness by punishing people for engaging in a basic necessity.
“It seems both cruel and unusual to punish people for basic human needs,” Justice Ketanji Brown Jackson, a Joe Biden appointee, said Monday.
Jackson compared the city’s ban on sleeping outside to a hypothetical ban on eating in public places. Some people would be able to get around the ordinance by going to a restaurant but those who couldn’t afford to do so would be punished. In this way, Jackson said, Grants Pass had created an ordinance that applied to only a certain group of individuals.
While some justices took issue with the city’s ordinance, others questioned why the complicated policy questions surrounding the homelessness crisis should be decided by the courts.
Chief Justice John Roberts, a George W. Bush appointee, said the obvious answer to the problem is building more shelters but municipalities have competing priorities to balance. He questioned why the court should be the one to choose if a city fixed its lead water pipes or built a shelter for the unhoused.
“Why would you think these nine people would be the best people to judge and weigh those policy judgments?” Roberts said.
Grants Pass maintains its ordinances aims to curb public camping and sleeping by everyone, not just those who are homeless. The city prohibits sleeping on public sidewalks, streets or alleyways at any time. Camping — with bedding, a sleeping bag or other materials — is also banned in all public areas.
Theane Evangelis, a Gibson Dunn attorney representing the city, warned the justices that cities need these ordinances to contend with the homelessness crisis.
“Like cities nationwide, Grants Pass relies on camping laws to protect public spaces,” Evangelis said. “These general applicable laws prohibit specific conduct and are essential to public health and safety."
The city fines violators $295 for each infraction and two citations within one year can result in a 30-day ban from public parks. Violators who rack up citations face criminal trespassing charges.
Two homeless Grants Pass residents first sued the city in 2018, claiming the ordinance is unconstitutional. Gloria Johnson and John Logan said the limited shelters in Grants Pass leave many residents no choice but to sleep outside and punishing them for that amounted to cruel and unusual punishment.
A federal court in Oregon held that the ordinances violated the Eighth Amendment and entered a permanent injunction. The Ninth Circuit affirmed, and the Supreme Court later agreed to decide whether the ordinance violates the Eighth Amendment.
Justice Sonia Sotomayor, a Barack Obama appointee, said that while the ordinance is purported to prohibit public camping, it only really applies to the unhoused. Sotomayor said the ban only applies to people who were publicly camping as a form of temporary shelter.
“You don’t arrest babies who have blankets over them,” Sotomayor said. “You don’t arrest people who are sleeping on the beach — as I tend to do if I’ve been there a while. You only arrest people who don’t have a home.”
Justice Elena Kagan, a Barack Obama appointee, tried to get the city to admit that regardless of the specific ordinance, it would be unconstitutional to criminalize homelessness. The city struggled to give Kagan a definitive answer — a response that Kagan said was telling.
“That’s quite striking that you think you can criminalize just homelessness,” Kagan said.
Admittedly, however, Kagan said there were line-drawing issues with separating an individual’s status from their conduct. The court said in Robinson v. California the Eighth Amendment prohibits criminalizing the mere status of being a drug addict.
The justices tried to parse whether other necessities could create a status similar to the claim in this case. Justice Neil Gorsuch, a Donald Trump appointee, wondered whether someone could be punished for stealing from a store when they had no way to access another meal.
Roberts doubted that homelessness is a status in the way addiction had been recognized in Robinson.
“Someone who is homeless can immediately become not homeless if they find shelter,” Roberts said. “Someone who is addicted to drugs, that’s not so easy.”
Justice Samuel Alito, a George W. Bush appointee, seemed to disagree. He said that if the court recognized the status of drug addicts who are incapable of refraining from using drugs then the logic should apply to someone with no alternative than sleeping outside.
“The point is that the connection between drug addiction and drug usage is more tenuous than the connection between absolute homelessness and sleeping outside,” Alito said.
Kelsi Brown Corkran, an attorney with Georgetown Law’s Institute for Constitutional Advocacy & Protection representing the unhoused in Grants Pass, said the fluidity of homelessness doesn't change the fact that it is a status.
“Homelessness is not something that you do, it's just something that you are,” Corkran said. “And so the question becomes when you attach the universal human attribute of sleeping or breathing to that status, does it make the punishment conduct-based instead of status-based.”
The justices will issue a ruling by the end of June.
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