SCOTUS Upholds Penalties for Homelessness

Cruel punishment is not unusual.

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WaPo (“Supreme Court says cities can ban homeless from sleeping outside“):

The Supreme Court on Friday ruled that cities may ban homeless residents from sleeping outside, rejecting a constitutional challenge to a set of anti-camping laws in a decision that will have a sweeping impact on how local officials address the nation’s escalating housing crisis.

In a 6-3 decision, which broke along ideological lines, the court’s conservative majority said that regulations penalizing people for sleeping in public spaces such as parks and streets do not constitute “cruel and unusual punishment” under the Eighth Amendment, even when a community lacks indoor shelter and its unhoused residents have nowhere else to go.

“Homelessness is complex,” Justice Neil M. Gorsuch wrote in the ruling.

Localities should be free to devise their own solutions, he argued, and the Eighth Amendment “does not authorize federal judges to wrest those rights and responsibilities from the American people and in their place dictate this Nation’s homelessness policy.”

The case centered on laws enacted in Grants Pass, Ore., and the court’s review comes at a time when officials across the country are struggling to deal with a growing number of unhoused individuals. The problem is especially pronounced in the American West, where soaring housing costs have driven more and more vulnerable people into homelessness.

Friday’s decision returns the case to the lower courts, which will consider other arguments against the Grants Pass laws, and city leaders say there will be no immediate changes.

Justice Sonia Sotomayor read her searing dissent from the bench, calling such laws “unconscionable and unconstitutional.”

“Sleep is a biological necessity, not a crime,” said Sotomayor, who was joined by Justices Elena Kagan and Ketanji Brown Jackson.

The Supreme Court agreed to take the case after hearing from an unlikely coalition that spanned the political spectrum, including liberals such as California Gov. Gavin Newsom (D) and officials in Republican-led states such as Montana and Alabama. The officials described governments overwhelmed by the scale and complexity of homelessness. More than 600,000 people are homeless nationwide, according to federal data, and nearly half sleep outside.

Newsom — who leads the state with the country’s largest unhoused population and frequently criticizes the high court’s conservatives — welcomed the decision, saying it provides “definitive authority to implement and enforce policies to clear unsafe encampments from our streets.”

“This decision removes the legal ambiguities that have tied the hands of local officials for years and limited their ability to deliver on common-sense measures to protect the safety and well-being of our communities.”


Lawyers for the unhoused individuals who originally brought the case contended that officials were free to restrict tents in public spaces, to clear encampments and even to fine homeless people who decline other shelter options. But, the attorneys argued, cities should not be allowed to punish people who have no alternatives.

They said Friday’s decision criminalizes the status of homelessness and will have ruinous consequences for those without shelter.

“We are disappointed that a majority of the Court has decided that our Constitution allows a city to punish its homeless residents simply for sleeping outside with a blanket to survive the cold when there is nowhere else for them to go,” said Ed Johnson, the director of litigation at the Oregon Law Center and lead counsel for the unhoused individuals.

I wrote about the broader issue in my January 2023 post, “Homeless Sweeps are Costly, Ineffective, and Immoral,” and my views haven’t evolved much since then. The fact that the likes of Gavin Newsom and Kay Ivey are on the same side illustrates the complexity of the problem. Municipalities have to be able to keep residents and visitors safe and public spaces ought to be for the public. At the same time, while I’m skeptical that it violates the 8th Amendment, effectively criminalizing homelessness is a bizarre and immoral policy.

Homelessness is a multifaceted issue that I pay attention to sporadically, so I won’t pretend to have the answers. To the extent it’s caused by mental illness and substance abuse, treatment and, in some cases, involuntary institutionalization is part of the solution. Dealing with those who are otherwise capable of supporting themselves but are simply down on their luck is harder.

But putting them in jail or levying fines that put them in further financial distress is surely not the solution. Rather clearly, those policies are designed to encourage the homeless to find another municipality in which to sleep.

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James Joyner
About James Joyner
James Joyner is Professor of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. just nutha says:

    Wow! Who knew homelessness was going to be so hard?

  2. Erik says:

    I recently read Poverty, by America by Princeton sociologist Matthew Desmond who, at least by his bio, seems to have extensive lived as well as academic experience with poverty and homelessness. Ultimately I found the book reached for more than it could grasp in addressing solutions, but it was a worthwhile read, especially since it was a quick one

  3. Chip Daniels says:

    Here in California, we aren’t falling into the false dilemma of either arresting the homeless or ignoring them.

    Newsom has instituted Care Courts, where homeless mentally ill people can be forced into treatment, and is spending hundreds of millions on various programs to provide housing for Californians.

    Los Angeles Mayor Karen Bass is sweeping up homeless encampments and directing the people into shelters and treatment.

    In other words states and cities should be free to solve homelessness in various ways. Its a pity that the conservatives can only see jail as their preferred solution but that shouldn’t prevent liberal cities from trying their own methods.

  4. gVOR10 says:

    Re your subtitle,

    Cruel punishment is not unusual.

    It’s the point.

  5. DrDaveT says:

    Throwing people in jail is expensive — you have to feed them and do their laundry and make sure they don’t just walk out and even (gasp) give them medical care if they’re sick. That takes tax dollars, which Americans are allergic to.

    Beatings and harassment and riding them out of town on a rail is relatively cheap — the police don’t generally object to those “other duties as assigned”. I think we know how this will play out.

  6. Chip Daniels says:

    People often look at downtown Los Angeles and shake their heads at all the homeless people, then proudly talk about how there are no homeless people in the suburbs where they live.

    But the fact is, that’s where all the homeless come from. Here in LA at least, the downtown core has had almost no residential buildings from the end of WWII until about a decade ago. The entire urban core was zoned commercial or industrial.
    So virtually no one can say they grew up in downtown LA; Anyone you see on the street was born and raised elsewhere, like one of the outer suburbs.

    In most suburbs, if a person starts hearing voices and lapses into schizophrenia or becomes an addict, and gets kicked out of their house, they aren’t able to just pitch a tent at the end of the cul de sac; So they migrate to some urban core where there are convenient overpasses or alleyways.

    All of which is to say, what we have now is the practice of just shooing them from one block to the next, from one city to the next, in a futile never ending Sisyphean game, with nothing to show for the effort.

  7. just nutha says:

    @gVOR10: “Well, I believe in consequences, myself.”

  8. Gustopher says:

    @Chip Daniels:

    In most suburbs, if a person starts hearing voices and lapses into schizophrenia or becomes an addict, and gets kicked out of their house, they aren’t able to just pitch a tent at the end of the cul de sac

    Mental illness and/or addiction can lead to homelessness, but it is more common that homelessness leads to mental illness and/or addiction. Homelessness is stressful, shameful and overall super sucky, and it destroys people.

    The visible homeless are so often a mess that people assume that this means all the homeless are a mess, and that being a mess is what caused them to be homeless. And this causes people to miss the most basic problem — simple economics.

    There are a lot of working poor who are living out of their cars because they can’t afford housing, or whatever housing situation they had fell apart. Often in the suburbs, since those areas are safer. And then the car breaks down. Or they are found by unfriendly police. Or any number of other things that put them down that last peg.

    Your point that the cities have an insane, drug-addled horde from outer areas is mostly correct though.

  9. Michael Reynolds says:


    Mental illness and/or addiction can lead to homelessness, but it is more common that homelessness leads to mental illness and/or addiction.

    Is there any evidence for this? Honest question. It’d be fascinating, if true.

  10. Gustopher says:

    @Michael Reynolds: Here’s a summarized government report that gets into the causes of homelessness. Economic, mostly.

    I cannot recall where I saw the stat about homelessness causing drug addiction and mental illness. Trying to look it up right now at the coffee shop is pulling a lot of articles from places that I don’t know that I can trust. It is common wisdom, as homelessness is stressful and traumatic, and stress and trauma lead to mental illness and drug use, but in a few moments, I’m not finding a solid source that quantifies it. (Do we trust Ehhhhh…)

    Here’s a report that refers to it as “bi-directional”.

  11. Chip Daniels says:

    Alexandra Pelosi did a wonderful documentary about the homeless children of Orange County California

    In it, she profiles the families that live in the vicinity of Disneyland who are the working homeless, living with just enough income to afford a weekly motel room, but not move up into a permanent apartment.

    By coincidence, my wife was working at Disneyland at the time and knew that one of her coworkers was one of that type, working a the park and living in a motel room.

    Homeless people span the entire spectrum, from the working poor to the severely mentally ill and end stage addicts, and everything in between.

    Any “solution” will actually be a suite of solutions, some targeting addiction, some mental illness, some the lack of housing for the working poor. Even things like Obamacare helped a lot of people avoid falling into homelessness by removing medical debt as a driving cause.

  12. OzarkHillbilly says:

    Municipalities have to be able to keep residents and visitors safe and public spaces ought to be for the public.

    I had no idea a sleeping person could be so dangerous. Also it seems to me that the homeless are part of the public.

    Homelessness is a problem, but other than making people uncomfortable by their very existence, it is mostly a problem for the homeless. Therefor the chances of society ever doing what needs to be done* to actually solve it are next to none.

    *way beyond my paygrade to stipulate what that might be

  13. James Joyner says:

    @OzarkHillbilly: A city park taken over by the homeless is a homeless encampment, not a city park. Folks sleeping on sidewalks divert the sidewalk from its intended purpose. And that’s to say nothing of aggressive panhandling and harassment, which is a mere annoyance if you’re a 220-pound, 6’1” man but threatening as hell if you’re a 130-pound, 5’5” woman.

  14. Chip Daniels says:

    @James Joyner:
    The other side of this is that allowing people to live on the streets isn’t compassionate and it isn’t helping them live with dignity and the flourishing that we want for our society.

    I have had several encounters with mentally ill homeless people who were no threat to me, but were screaming in fear at invisible demons, begging for someone to help them.

    But no help is currently available. There are no teams of skilled mental health professionals who are able to intervene*, and even if there were, there are no beds available, no funds with which to create those beds.
    I could have called 911 but it would have ended with a baton and taser and only served to add one more deranged person to the county jail system.

    The status quo isn’t kind or compassionate and it isn’t serving the cause of liberty or freedom or any of the other purposes we claim to hold as a nation.

    *Los Angeles County does in fact have a 24/7 mobile response team to perform just such an intervention when someone is experiencing a mental health crisis. But it is poorly funded, and stretched beyond its capacity.

  15. just nutha says:

    @Chip Daniels: Wish I had more thumb ups to give this comment.

  16. Michael Reynolds says:

    It’s not just an eyesore or an inconvenience. Homeless encampments force small businesses into bankruptcy. They deprive homeowners of access to park for their kids and drive down property values. They create health hazards from human waste to dirty needles. They make it impossible for women, let alone children, to walk safely in their own neighborhoods.

    I don’t think it is helpful to downplay the problems. This isn’t black and white, it’s many shades of gray, with many competing and legitimate interests. If you have a business customers can’t enter without stepping over bodies, or if you have an eight year-old who can’t play in the yard because an adult man is screaming curses at them, we can’t just pretend those people don’t have legitimate beefs. If we libs and progs can’t deal with the issue, then we cede the ground to conservatives and cops.

  17. Gustopher says:

    @James Joyner:

    A city park taken over by the homeless is a homeless encampment, not a city park

    It’s also a clear sign that the city (and county and state and federal government) has no idea what to do to prevent so many people from becoming homeless* or getting them off the streets once they are.

    It’s basically the various governments giving up and making that park into a de facto homeless shelter, rather than spending the money and resources to create shelters that are safe and accessible for the homeless people.

    It’s a failure of social policy, as much as Hoovertowns in the Great Depression were.

    *: generally a much more effective strategy.

  18. DrDaveT says:


    It’s basically the various governments giving up and making that park into a de facto homeless shelter, rather than spending the money and resources to create shelters that are safe and accessible for the homeless people.

    Aaaaaand, in America at present there is a roughly 50/50 split between people who think part of the purpose of government is to avoid situations like that, to the benefit of all, and people who think government should stop collecting taxes and spend what they do collect on making sure the non-homeless don’t have to look at the consequences of their selfishness.

    “Small government” has always been a euphemism. Different folks mean different things by it, but none of them actually value “small government” and none of them are willing to admit what they actually want.


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