The U.S. Supreme Court Friday ruled that local jurisdictions may ticket and arrest unhoused people for sleeping outside in public places, even when adequate shelter or housing is not available. 

The 6-3 decision in City of Grants Pass, Oregon v. Johnson, with Justices Sonia Sotomayor, Ketanji Brown Jackson, and Elena Kagan dissenting, immediately drew scathing criticism from advocates for the unhoused. 

“This cruel, misguided ruling will only worsen homelessness,” said Diane Yentel, President and CEO of the National Low Income Housing Coalition. “It gives cover to elected officials who choose political expedience over real solutions by merely moving unhoused people out of public view rather than working to solve their homelessness. These ineffective and inhumane tactics exacerbate homelessness by saddling unhoused people with debt they can’t pay, while further isolating them from the services and support they need to become stably housed.” 

Donald H. Whitehead, Jr., Executive Director of the National Coalition for the Homeless, stated, “How a society treats its most vulnerable members reflects its values, priorities, and commitment to social justice. Criminalization has consequences. This decision will result in higher costs, more suffering, and death. We are deeply saddened by the Supreme Court’s supreme injustice.” 

The majority opinion by Justice Neil M. Gorsuch said the public camping bans do not violate the Eighth Amendment prohibition on cruel and unusual punishment, even when a community has no access to indoor shelter for unhoused people. Gorsuch wrote that although the problem of homelessness is complex, 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.” 

That opinion drew a stinging dissent – read from the bench – from Sotomayor. She argued that laws like the one in Grants Pass punish people who do not have access to shelter for being homeless. 

“It is possible to acknowledge and balance the issues facing local governments, the humanity and dignity of homeless people, and our constitutional principles,” she wrote. “Instead, the majority focuses almost exclusively on the needs of local governments and leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested.” 

Sotomayor noted that “Sleep is a biological necessity” and closed by writing, “I remain hopeful that someday in the near future, this Court will play its role in safeguarding constitutional liberties for the most vulnerable among us. Because the Court today abdicates that role, I respectfully dissent.” 

Housing advocates say that more than 600,000 people experience homelessness on any given night in the U.S. Nearly half – 250,000 – 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 policies,” 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 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. 

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 case. 

In its statement, the National Low Income Housing Coalition reports that the primary causes of homelessness are the inability to afford housing and the severe shortage of affordable homes. 

“Nationally, there is a shortage of 7.3 million homes affordable and available to people with the lowest incomes,” the group wrote. “Without affordable options, more than 10 million of these households pay more than half of their limited incomes on rent, leaving them with few resources to make ends meet. They are always one financial shock away from falling behind on rent and facing eviction and, in the worst cases, homelessness. Despite the clear need, only one in four people eligible for housing assistance receives any help due to chronic underfunding by Congress.”