Criminalizing the unhoused: ‘Make it uncomfortable enough for them in our city so they will want to move on down the road.’ 


April 19, 2024

On Monday, April 22, the Supreme Court will hear arguments in Grants Pass v. Johnson, which observers are calling the most important case in decades involving the rights of unhoused people. 

At issue: can cities, counties, and states punish people with fines or even jail time who sleep in public places when shelter beds or affordable housing are not available? Or does such action by governments constitute a violation of the Eighth Amendment, which bans cruel and unusual punishment? 

Housing advocates say that more than 600,000 people experience homelessness on any given night in the U.S. Nearly half – 250,000 people – sleep outdoors, and the number of people without housing is on the rise. 

“Rent is too expensive, wages are too low, and we have seen decades of failed housing priorities,” according to a website built by advocates to provide resources around Grants Pass v. Johnson. “Instead of focusing on solutions like rental assistance and eviction prevention, cities and states are trying to arrest their way out of homelessness. Homelessness is caused by a lack of housing that people can afford. The solution is not court or jail; the solution is providing people with housing (and) services.” 

Grants Pass is a picturesque community of 39,000 residents in southern Oregon, about an hour north of the California border. Frustrated by hundreds of unhoused people camping out in local parks, the community’s leaders passed a series of fines and jail time for people camping in public places inside city limits. 

Grants Pass argues that these laws are necessary to enforce banning unhoused people from sleeping in public spaces. But lawyers representing homeless people filed a class action suit counter that penalizing people who have nowhere else to go constitutes cruel and unusual punishment – in clear violation of the Eighth Amendment. 

According to Oregon Public Broadcasting, way back in March 2013, the Grants Pass city council held a meeting to “identify solutions to current vagrancy problems.” At that meeting, the city council president explained, “The point is to make it uncomfortable enough for them in our city so they will want to move on down the road.” 

OPB says the city’s code is quite restrictive. It “explicitly bars anyone from sleeping in public spaces, including parks, sidewalks and in cars, or using sleeping materials for the purpose of maintaining a temporary place to live, under threat of criminal and civil penalty.” 

Across the country in recent years, efforts to criminalize homelessness have blossomed, to the dismay of affordable housing advocates, who view the actions as wholly misguided and in fact counter-productive. After all, fining people and putting them in jail does nothing to help them find affordable housing, and the likelihood of owing thousands of dollars in fines and having a criminal record will make it even harder. 

One study found that over half of the 187 cities it surveyed have laws restricting sleeping in public and almost three-fourths have laws restricting camping. Most recently, Florida enacted a statewide ban on camping in public. And even jurisdictions said to be progressive are getting into the act – recently, the city and county of San Francisco joined in signing a friend-of-the-court brief to support Grants Pass in its Supreme Court appeal. 

So what is at stake in Grants Pass v. Johnson? Groups that advocate for unhoused people explain: 

If the housing advocates in the case win and Grants Pass loses, jurisdictions across the country “will no longer be able to enforce blanket bans on basic survival activities, like sleeping or protecting oneself from the elements, in the absence of adequate shelter or housing,” say the National Low Income Housing Coalition, the National Homelessness Law Center, the National Coalition for the Homeless, and the National Alliance to End Homelessness. “Without expensive, short-sighted, and harmful criminalization options on the table, cities and states will have to focus on the true solution to homelessness: affordable housing and supportive services.” 

On the other hand, if Grants Pass prevails and the housing advocates lose, “It will give states and cities across the country permission to punish people who are forced to sleep outside, even though they have no other safe option. A ruling of this kind would make it more difficult for people to exit homelessness and punish people for existing in public in a country that has failed to ensure that everybody has a safe place to sleep. Overturning the lower court standard would exacerbate – not end – homelessness.” 

A note about the history of Grants Pass v. Johnson is in order. Housing advocates won at the federal district court level. And they won again at the Ninth Circuit Court of Appeals level. The fact that at least four members of the U.S. Supreme Court voted to review the case means, at the least, that the Court wants to take a hard look at how the Ninth Circuit ruled and why. 

Meanwhile, housing advocates are planning a week of action next week beginning Monday with a 10 a.m. rally that runs till noon in front of the Supreme Court. You can RSVP here. The rally will demonstrate widespread support for the rights of individuals without housing and highlight the urgent need for a shift from criminalization to compassionate, effective, housing-first solutions to solve homelessness. 

You can also participate in a tweetstorm from 11 a.m. to 1 p.m. Monday. To access sample media messages prepared by the National Low Income Housing Coalition, see the group’s social media toolkit.   

Finally, if you want to plan an event in your community the week of April 22, then be sure and check out NLIHC’s helpful advocacy toolkit. 

criminalizing homelessness