The Supreme Court has just struck down one of the few legal protections for the homeless. In a 6-3 decision, the court ruled that the city of Grants Pass, Oregon, did not violate the Eighth Amendment when it imposed camping bans on its involuntarily homeless residents. The ruling illustrates why the housing shortage has become a crisis in so much of the country: It does nothing to make communities confront their role in causing the housing shortage, and it confirms their ability to inflict pain on the victims of that shortage.
That ruling overturned the Ninth Circuit Court of Appeals’ Grants Pass v. Johnson and Martin v. Boise precedents that had prevented jurisdictions across much of the Western U.S., including high-homelessness states of California, Oregon, and Washington, from enforcing anti-camping laws when they lacked shelters. Justice Neil Gorsuch, who sat for the majority in Grants Pass, struck a Tocquevillean tone when he argued that the American people, “through their voluntary associations and charities, their elected representatives and appointed officials, their policemen and psychologists,” know better than many a judge how best to address homelessness in their cities and towns. And if part of their answer is to lock up the homeless, so be it.
Modern tent encampments were not a significant part of the urban landscape before the 1980s. In fact, not since the Great Depression, when unemployment reached nearly 25 percent, have so many people sought makeshift shelter in outdoor tent encampments. Today, unemployment is at 4 percent. And yet, wealthy American cities still have plenty of homeless people. That’s not because drugs were only invented in the last few decades, nor because millennials invented mental illness.
Rather, the reason is that local governments have tried to rid their housing markets of low-income people by eliminating public housing while ensuring that the rest of the market became prohibitively expensive. Municipalities have simply pushed the most vulnerable residents out into the wild, hoping that life there would be so uncomfortable that those people would move to another community. And now, after policy decisions have triggered a nationwide housing crisis, cities have successfully petitioned the Supreme Court to allow them to ignore a problem of their own making. If they aren’t willing to create more housing, they are certainly willing to house the needy in prison.
Grants Pass has a population of about 40,000 and a median family income of $54,000, 30 percent below the national average. The only homeless shelter there, run by a Christian nonprofit, has space for 138 people. It requires its residents to abstain from alcohol and drugs (including nicotine), attend chapel twice a day, and “abstain from intimate relationships.” It also requires residents to separate from their partner or spouse to maintain gender segregation. For many people, this is a difficult way of life. Everyone agrees that there are not enough beds in the shelters for the number of homeless people. But they disagree about what should be done about it.
Tent encampments are a symptom of a dysfunctional housing market for low-income renters. Yet over the decades, cities have not only banned the construction of shelters, but also restricted the construction of housing for middle- and high-income renters. People’s options are thus reduced to zero when a medical emergency occurs, a divorce occurs, or a family dispute results in someone being evicted — resulting in many people living outside.
As tent encampments have spread across the country, communities have routinely treated the problem of homelessness as a matter of maintaining order rather than reducing the number of homeless. This is not irrational; many residents find these encampments to be breeding grounds for disorder. Many tent encampments not only occupy public parks and common areas, but also accumulate trash and other signs of chaos.
Still, fining and jailing people for their poverty is fundamentally unfair. Homelessness alone should not be punished as a crime. And, as a practical matter, you can’t fine or jail people out of their homelessness. When cities resort to punitive measures without offering more suitable alternatives than camping outside, at best they are simply shuffling homeless people around in an endless dystopian game. At worst, they are imposing fines and other legal costs on people already marked by their lack of resources, increasing the likelihood that they will remain untraceable and homeless.
Writing for the three liberal justices who dissented, Sonia Sotomayor focused on a core issue: Does criminalization even work? “For people who have nowhere else to go, fines and jail time don’t change behavior, don’t reduce homelessness, and don’t increase public safety… Police officers in these cities are aware of this: ‘Look, we’re really not solving anyone’s problems. This is a big game of whack-a-mole.'” The ruling will empower cities and states to push criminalization without addressing the root causes of homelessness. But to what end?
In 2023, the National Park Service evicted about 74 people from McPherson Square in Washington. City officials later admitted that, as the Washington Post put it, “about two-thirds of the people evicted from the park were probably still sleeping on the streets.” The newspaper reported that only two people had been moved to permanent housing shortly after the eviction.
Elected officials want an easy way out of this disaster, and when the only tool you have is a cop, everyone looks like a prisoner. Mayors and governors are desperate for a quick fix to this problem, frustrated that even valiant efforts to increase the supply of affordable housing are unlikely to win them any brownie points with voters. Such attempts to solve the problem of homelessness are unlikely to be politically convincing unless they lead to the clearing of the tent encampments. This frustration was perhaps best summed up by Los Angeles Mayor Karen Bass: Los Angeles residents “want the tents gone.” She continued, “I could build half a million housing units, and if there are still tents there, people won’t believe you’ve done anything other than steal their money.” But there is no quick fix, and mayors like Bass have done little to seriously confront the entrenched political interests that oppose new housing.
Yes, the encampments will have to be cleared at some point. But only when cities have invested in the necessary shelter and housing to care for these people will evictions have a meaningful effect on combating homelessness – and the disorder that comes with it.
