Can Cities Punish People for Being Homeless? U.S. Supreme Court Will Soon Decide

Photo by JM Suarez via Wikimedia Commons

Last week, the U.S. Supreme Court agreed to review an appeals court decision that puts the criminalization of homelessness to the test. The case, Johnson v. City of Grants Pass, was the latest federal court ruling saying it is unconstitutional for communities to fine, ban, or imprison people for sleeping on public property when there are not adequate shelter options available. To do so violates the Eight Amendment’s prohibition against cruel and unusual punishment.

The ruling on Grants Pass, Oregon’s “anti-sleeping” and “anti-camping” ordinances is the latest to follow the landmark 2018 U.S. Ninth Circuit Court of Appeals Martin v. Boise decision.  The Grants Pass court found that the city has far more homeless individuals than available shelter beds, and there is no secular shelter space available. “The City of Grants Pass cannot, consistent with the Eighth Amendment, enforce   its  anti-camping ordinances against homeless persons   for   the   mere   act   of   sleeping   outside   with rudimentary protection from the elements, or for sleeping in their car at night, when there is no other place in the City for them to go,” the Ninth Circuit majority ruled.

This case is important. The unhoused population has reached record highs, and the National Homelessness Law Center calls this the most significant Supreme Court case about homelessness in decades.

“Cities remain free to use any of the many evidence-based approaches that end homelessness, like housing,” Jesse Rabinowitz of the Homelessness Law Center, said. “All this (Grants Pass) case says is that, unless everybody has access to shelter that meets their needs, they cannot be arrested, ticketed, or otherwise punished for sleeping outside.”

The Myth of Voluntary Homelessness

The dissenting opinion in the Grants Pass case raised the same myth that has been used nationwide to justify the brutality of criminalizing homelessness: many unhoused people simply prefer to sleep outside. The legal debate in these cases often focuses on whether many of the unhoused people on our streets are “voluntarily homeless.”

They are not.

It is true that many unhoused people prefer to stay with their partner and/or their beloved pets, either or both of which cannot join them in many shelter settings. Others choose encampments or the street because they have concluded that these are the settings where they are most protected from assault and/or religious proselytizing and/or mandatory participation in programs that they are not ready for. Readers of this newsletter may recall that the residents of Rosette Village in Connecticut were among the many who made this choice.

But that does not mean these people prefer enduring the often deadly elements over housing that allows them to retain their dignity and agency. Just ask Margot Kushel, an internal medicine physician and researcher who led the University of California, San Francisco Benioff Homelessness and Housing Initiative’s study of adults experiencing homelessness in California. Kushel wrote recently in Truthout:  

Several years ago, colleagues and I conducted a randomized controlled trial of permanent supportive housing — a form of subsidized housing with associated voluntary supportive services — for chronically unhoused individuals with severe mental health and substance-use problems.

The team selected potential participants from those with the most complex problems and approached them when they used emergency services or were leaving jail. Of the 426 individuals that researchers approached, only two individuals declined eligibility screening and one declined the offer. Everyone else accepted.

The housing offered in the Kushel study was not conditioned on treatment. But, guess what? Having a safe and secure place to live led to the housed people accepting the treatment they needed—because they were now ready to participate:

 . . . Those who were housed — despite not being required to accept treatment — had significant increases in receiving mental health treatment and a concomitant decrease in use of the psychiatric emergency department. This matches other studies showing that when people are offered permanent housing without requiring services, they not only accept and thrive but are more likely to accept treatment.

This research backs up the experiences described by residents and staff at the low-barrier Motels4Now shelter in South Bend, Indiana profiled recently in this newsletter. Dr. Kushel’s research is just one of dozens of studies showing that the Housing First approach is not just morally correct: it works to both get people housed and access to other services they may need.

“If politicians were truly focused on ending homelessness, they would focus on proven solutions like housing and services,” the National Homelessness Law Center’s Rabinowitz says. “Cities that have failed to provide for the basic needs of their residents, like housing and shelter, should not be allowed to punish people when they have no safe place to go.”

Hopefully, the United States Supreme Court agrees.