A Closer Look

A monthly in-depth look at issues affecting people experiencing homelessness and the broader Health Care for the Homeless community

Cruel and Unusual Punishment, Part 3

By Barbara DiPietro, Senior Director of Policy 

Background: In March (Part 1), we described the key provisions of this case and outlined how to draw attention and build power around key advocacy messages.
In April (Part 2), we summarized the Supreme Court hearing, listed 10 questions the Justices asked during testimony, linked to the amicus briefs submitted from a wide range of homeless advocates, and described the high-energy rally outside the court during the hearing (including remarks from NHCHC CEO Bobby Watts). 

On Monday, April 22, the Supreme Court heard the case Johnson v. Grants Pass — a case to determine whether it is cruel and unusual punishment when communities ticket or fine unsheltered people for sleeping outside.  

On Friday, June 28, the Supreme Court issued its opinion: They said it is NOT cruel and unusual to ticket, fine, or otherwise punish unsheltered people for sleeping outside, even if there are no shelter beds available. Naturally, the entire national homelessness advocacy community strongly disagrees. (See the Council’s statement here.)  

The 74-page ruling is fairly dense, but here are five positions SCOTUS took that are particularly troubling: 

  1. Fines and tickets are neither cruel, nor unusual: Justices point to punishments such as “disemboweling, quartering, public dissection, and burning alive” as examples of punishments that are cruel and unusual because they are designed to cause “terror, pain, or disgrace.” The Court held that “none of the city’s sanctions qualifies as cruel” because they do not rise to that level, “nor are the city’s sanctions unusual, because similar punishments have been and remain among the usual modes for punishing offenses throughout the country.” 
  1. Fines and tickets are “tools in the toolbox”: The Court accepted California Governor Gavin Newsom’s argument that “policymakers need access to the full panoply of tools in the policy toolbox” to “tackle the complicated issues of housing and homelessness.” The Court also accepted San Francisco’s argument that the city “uses enforcement of its laws prohibiting camping” not to criminalize homelessness, but “as one important tool among others to encourage individuals experiencing homelessness to accept services and to help ensure safe and accessible sidewalks and public spaces.” (Note: many cities filed briefs making this same claim.) 
  1. Federal judges and local police can’t decide: The Court cited a prior case, saying “federal judges cannot begin to ‘match’ the collective wisdom the American people possess in deciding ‘how best to handle’ a pressing social question like homelessness.” The Court also questioned how cities and law enforcement officers could know whether shelter beds were available and/or whether someone was “involuntarily” homeless.  
  1. Fines and tickets only target conduct, not status: The Court drew heavily on a 1962 case (Robinson v. California) that found a city could not criminalize an individual’s status of having a substance use disorder — they could only criminalize a person’s behavior (for example: public intoxication can be illegal, but simply having an addiction cannot be made illegal). The Court applied this reasoning here — asserting that these laws apply to everyone, not just people who are homeless. 
  1. One Justice wants to criminalize further: Justice Clarence Thomas said the ruling in the Robinson case (mentioned above) was wrong and could be overturned in the future, saying “we should dispose of it once and for all” and that “the Court should certainly correct this error.” Applied here, this could mean the very existence of people experiencing homelessness could be criminalized in the future. 

However, the majority opinion got one thing right: “Nothing in today’s decision prevents States, cities, and counties from going a step further and declining to criminalize public camping altogether.” 

Indeed, Justice Sonia Sotomayor’s dissenting opinion laid bare the reality: “The City of Grants Pass jails and fines people for sleeping anywhere in public at any time…For people with no access to shelter, that punishes them for being homeless. That is unconscionable and unconstitutional. Punishing people for their status is ‘cruel and unusual’ under the Eighth Amendment.” 

Make no mistake, this decision will make things much worse for unhoused people —especially Black and Brown unhoused folks, who are already arrested at higher rates than their white peers. Going forward, many local and state policymakers will  increase punishments and arrests, while affordable housing remains elusive.  

It’s completely unacceptable that policymakers continue to refuse to fund housing but are absolutely OK funding law enforcement, jails, and prisons for the most vulnerable in our society (and who made them vulnerable, I wonder??). This double standard is cruel and unusual punishment! 

Fight Back by Taking Action 

  • Advocate for more housing funding: Contract your federal legislators with these talking points (insert your address) and support our partner’s housing agenda, which includes greater funding for permanent housing and emergency assistance, as well as stronger renter protections.  
  • Advocate for greater health care: Expand Medicaid eligibility and services—especially street medicine—and ensure all low-income people receive needed medical and behavioral health care, as well as support services.  

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