On June 28, 2024 the U.S. Supreme Court handed down a decision that will have far reaching consequences for homeless people.  Its decision in the case of the City of Grants Pass v. Johnson allows cities to enact ordinances with criminal penalties for homeless people who are forced to sleep in encampments on the streets even when the cities have failed to provide sufficient shelter beds for them. 

The decision turned on the Court’s interpretation of the 8th Amendment’s prohibition against cruel and unusual punishment.  In its 6-3 ruling, written by Justice Gorsuch, the Court’s conservative majority reversed a Ninth Circuit decision that had barred the city of Grants Pass, Oregon from enforcing an ordinance prohibiting homeless people from sleeping on the street.   It held that even when there was no way a homeless person could sleep anywhere but in an encampment on the street, and even when the reason for this was the city’s failure to create shelter beds that would enable him to comply with the city’s ordinance, the city could fine and put him in jail without running afoul of the 8th Amendment.  These punishments the Court held are not cruel. 

Having spent two years on the streets of San Francisco interviewing homeless mentally ill people for my book Silent Voices: People with Mental Disorders on the Streets, I have a number of objections to the Court’s decision: (1) It seems unreasonable to forbid homeless mentally ill people from sleeping on the street when there are insufficient shelter beds to accommodate all of them.  Doesn’t the ordinance put them in an impossible bind, requiring that they comply with it when it is impossible for them to do so? (2) The fact that it is the city’s failure to create such beds which would allow people to comply makes the Court’s decision even more egregiously unfair.  Instead of the city being cited and punished for its failure, the homeless person is cited and punished. (3) Even when shelter beds are available, there are a number of legitimate reasons that these are eschewed by many people. They fear that spending nights in shelters exposes them to the robbery of their possessions.  They fear that sleeping in close proximity to others may expose them to contagious infections.  Others are anxious about being close to others because they are very paranoid. Many complain that their dignity in shelters is constantly under assault by some staff that they feel treat them with contempt.  Others feel that the entire system treats them with contempt when shelters as a matter of policy push them out very early in the morning and then require them to queue up later in the afternoon if they hope to gain admission that night.  People with pets, which are often the only creatures they feel attached to, are often denied admission to the shelter system.  And married people or people with partners and children are often separated from their loved ones when they enter a shelter.  It is too easy to conclude, though unfairly, that because people qrefuse the offer of a shelter bed they are simply being obstinate. (4) For the Court’s conservative majority to deny it is cruel to imprison a mentally ill homeless person because he/she can’t or won’t enter a shelter seems heartless. Justice Gorsuch might be able to tolerate 30 days in jail being stuck cheek to jowl with 20 others in a cell, but for many other people, especially those who are emotionally compromised, cruel would seem to be the only accurate characterization of this approach.  At a minimum, before cities exercise their power to punish these people, they should be first obligated to take steps to prevent people from becoming homeless in the first place, to rapidly rehouse those who become homeless despite these efforts, to increase the total supply of permanent low cost housing, to increase the number of shelter beds and to adapt shelters so they will be more acceptable to a larger group of people, and create a culture of kindness within the shelter system rather than one of contempt. 

Beside the foregoing ethical issues raised by the Court’s decision are its public policy implications: Breaking up encampments may give the appearance that the city is tackling the problem of homelessness, but without creating more shelter and permanent beds, it will do nothing to solve the problem.  Where are those people for whom shelter beds don’t exist or aren’t acceptable going to go when their encampments are broken up?  Being moved on is certainly no solution to either any individual’s plight or to the overall crisis of homelessness in the city.  The media are full of stories of encampments being broken up only to see them reappear like whack-a-mole in some other part of the city.  Without acceptable alternatives to these sleeping arrangements, and if the police confiscate tents and other forms of protection, people are likely to be worse off and more exposed to the elements than they were before the police intervened. Moreover, pushing otherwise innocent people through the forensic system will not only be expensive but wasteful. Police, courts, and jails cost a great of money and won ‘t solve the problem for either the individual or society, especially considering that after his/her sentence is completed, the homeless person is released back into the street with no more than $50 in his pocket and still no place to sleep.    Many will have no choice but to violate the city’s ordinance on the very night they are released, contributing to the phenomenon of the revolving door between the streets and the jails.

Having challenged the Court’s decision, I acknowledge that there are people who have created encampments that litter the streets with needles and feces and present a real public health hazard.  Cities can’t be put in the impossible position of having to ignore these particular encampments.  But it also needs to be recognized that although many of the people who live in these communities may not have DSMV diagnoses and may not be technically mentally ill, a high per centage are compromised emotionally and cognitively. Many have had terrible experiences as children and search for living situations that allow them a great deal of autonomy and a certain amount of distance from others.   Others  seem to need the companionship they have developed in these communities, which have become like families to them.  Often relocating the entire encampment to an area in which they won’t disrupt the surrounding community is a solution that preserves their relationships, deals with the public health hazards they have created, and yet avoids the cruel and expensive solution of throwing them into jail.  In addition to relocating the entire encampment, it will probably be necessary to provide staff who can help create a set of rules and system of self-governance and who can also help the residents with their psychiatric and substance abuse problems.   Putting them in jail would seem to be the last alternative cities should be allowed to employ, not the first.   The Court had many options in deciding this case.  The one it chose was singularly cruel, wasteful and ineffective.