In 2013, Grants Pass, Ore., came up with a strategy to deal with a growing homeless population in the city of roughly 40,000, one that might best be described as kicking the can down the road.
Through a series of ordinances, the city essentially made it illegal to sleep outside in public. In particular, anyone sleeping anywhere in public with bedding, a blanket or a sleeping bag would be breaking the law.
“The point,” the City Council president explained at the time, “is to make it uncomfortable enough for them in our city so they will want to move on down the road.”
Unhoused individuals wouldn’t have much choice. There are no homeless shelters in Grants Pass. At least 600 people in the city were unhoused in 2018 and 2019, according to counts by a local nonprofit that serves the unhoused.
Now the United States Supreme Court is being asked whether the enforcement of the city’s camping regulations, which apply to all in the city’s residents but affect them in vastly different ways, violate the Eighth Amendment’s prohibition against cruel and unusual punishment. Oral arguments are scheduled for Monday.
Of course, weighing the legality of camping obscures the real issue, which is how, in a nation of roughly 650,000 unhoused people, the federal, state and local governments can make sure there are enough beds for people to sleep in. Forcing unhoused people to the next town does not create housing that is affordable or available.
The case is an appeal to a ruling by the United States Court of Appeals for the Ninth Circuit that prohibited Grants Pass from using citations to enforce its public camping ordinance. The Ninth Circuit had earlier prohibited cities from enforcing criminal restrictions on public camping unless there was access to adequate temporary shelter.
In the decision being challenged by Grants Pass, the Ninth Circuit concluded that the city “cannot, consistent with the Eighth Amendment, enforce its anti-camping ordinances against homeless persons for the mere act of sleeping outside with rudimentary protection from the elements, or for sleeping in their car at night, when there is no other place in the city for them to go.”
Which there rarely is, in Grants Pass or elsewhere, and which is why people often have no choice but to sleep outside.
In a friend of the court brief, the National Homelessness Law Center argued that Grants Pass had “rejected” its obligation to care for unhoused residents and that vulnerable groups would continue to be marginalized unless the court decides once and for all that those ordinances are cruel. In its brief to the court, the Disability Rights Education and Defense Fund noted that the laws disproportionately affect people with disabilities and don’t serve any rehabilitative or deterrent interest.
If nothing else, one thing this case has done is unite many officials on the left and the right of the political spectrum, from San Francisco to Arizona. They have complained in briefs to the court that the Ninth Circuit has hamstrung their communities in dealing with homeless encampments.
But homelessness arises from policy decisions, not from a ruling by an appellate court. The Supreme Court should uphold the Ninth Circuit’s ruling. Otherwise it will open the door for communities to pass local laws that effectively punish unhoused people for existing within their borders, making what is clearly cruel permissible.
It would not be unexpected for the Supreme Court’s conservative majority to give the green light for the kind of camping bans at issue. Unhoused people would be pushed further to the margins, increasingly out of sight and mind. They will still be out there, parked in cars in rural areas or subsisting on urban streets, perhaps after being fined or jailed for the crime of trying to survive without a roof over their heads.
This case shines a light on the abdication of responsibility by governments at all levels to their unhoused residents. Instead of arguing about the legality of bans on sleeping in public, we should be asking: Why move people down the road to another community, one that is likely also short on shelter beds?
There is no doubt that the path to creating permanent housing (and more temporary shelter) is politically challenging and expensive. But there are many solutions along this path that go beyond what lawyers and the courts, even our highest one, can accomplish, and that the public should be demanding.
Governments at all levels should invest in homelessness prevention programs and strategies. Those include providing housing subsidies to people who otherwise could lose their housing and supportive transitional services for those leaving mental health treatment and correctional centers.
People on the brink of homelessness should have a right to counsel in eviction proceedings and should be offered the possibility of mediation in housing courts to give them a chance to remain in their houses or apartments.
Businesses should be increasing employment opportunities by not requiring a permanent address in job applications. Lawmakers should create more pathways for people to clear their criminal records, some that arise from targeted enforcement of low-level, nonviolent offenses, because those records can make it much more difficult to get a job.
For populations with unique needs, such as young people and veterans, social service agencies should pursue particularized interventions that address the underlying reasons that pushed individuals into homelessness.
And, of course, we should be building more housing, plain and simple, and we should be providing affordable housing incentives in areas with grocery stores and medical care nearby.
The Supreme Court should not further criminalize homelessness. But whether it does or not, this case should put governments at all levels on notice that humane policies can help to reduce homelessness. We don’t have to let this crisis continue.