Supreme Court Debates How Far Cities Can Go While Cracking Down On Homeless Encampments

But where are they supposed to go?

The Supreme Court went back and forth on the lengths U.S. cities can go to when cracking down on homeless encampments.

The high court heard arguments in the case of Grants Pass, Oregon, a town that banned sleeping in public with a blanket. Members of the homeless community in the tourist city faced fines of $250 and jail time if they broke the city’s strict anti-camping laws, until a federal appeals court stepped in, claiming such ordinances violate the Constitution’s ban on cruel and unusual punishment.

Similar rulings were made in 2018 against an anti-camping ordinance in Boise, Idaho.

Now, city officials blame the ruling as having caused an influx of unsanitary homeless encampments unless the Supreme Court reverses the decision. A number of the justices, including Justice Sonia Sotomayor, were seemingly concerned with the lack of empathy shown with criminalizing homelessness, but they also worried about placing limits on a city’s ability to regulate public health hazards in these encampments. “Where do we put them if every city, every village, every town lacks compassion and passes a law identical to this?,” Sotomayor asked.

“Where are they supposed to sleep? Are they supposed to kill themselves, not sleeping?”

Deputy Solicitor General Edwin Kneedler argued cities need flexibility to embed “reasonable” rules about where, when, and how someone can sleep in a public place. Kelsi Corkran, a lawyer representing Grants Pass’ homeless residents, labeled the “blanket” law as a clear target of the community. In contrast, permanent residents evaded consequences while lying on blankets in public. “The ordinances, by design, make it physically impossible to live in Grants Pass without facing endless fines and jail time,” Corkran said.

“All the ordinances do is turn the city’s homeless problem into someone else’s problem by forcing its homeless residents into other jurisdictions.”

City of Grants Pass attorney Theane Evangelis called the ruling a “failed experiment” and asked the justices to end what is described as fueling “the spread of encampments while harming those it purports to protect.” “Cities are struggling to apply arbitrary, shifting standards in the field,” Evangelis said.

“Without the court’s intervention, she said, cities will be forced to surrender their public spaces.

Several justices felt it was up to local governments to decide, adding that the federal courts were limited in their involvement. But the justices also showed compassion, as Chief Justice John Roberts claimed “many people” called it a serious policy problem.

“Why would you think that these nine people are the best people to judge and weigh those policy judgments?” he asked.

“Sleeping is a biological necessity. It’s sort of like breathing,” Justice Elena Kagan said.

“You can say breathing is conduct, too, but presumably, you would not think that it’s OK to criminalize breathing in public. And for a homeless person who has no place to go, sleeping in public is kind of like breathing in public.”

Over 650,000 people in the United States are experiencing homelessness, an increase of 12% from 2022 to 2023. Roberts and a few other justices raised a series of questions on how labeling someone as homeless can be tricky, as the circumstances can change at any given time.

The distinction between status and conduct is what the justices — both liberal and conservative — are having trouble with. That decision will hold leverage, especially since, in 1963, the high court ruled against a law in California that criminalized drug addiction instead of drug possession. Under the Eighth Amendment, the court deemed it a “cruel and unusual” punishment as it attempted to punish someone’s status.

A decision in the case is expected by June 2024.