The Supreme Court cannot allow homelessness to be a crime

If you are homeless and have nowhere to go — neither a temporary shelter bed nor a permanent home — can you be fined or, worse, jailed for sleeping on a sidewalk? Or is that cruel and unusual punishment?

That’s the question that the Supreme Court wrestled with Monday when it heard oral arguments in the case of Grants Pass vs. Johnson regarding the Oregon city’s ordinance allowing police to fine or jail homeless people for sleeping outside. A federal district court ruled that the law violated the 8th Amendment prohibition on cruel and unusual punishment and blocked it from being enforced. The 9th Circuit upheld the ruling. The city petitioned the Supreme Court to weigh in and it agreed.

Most of the justices seemed troubled by the idea of fining and jailing homeless people as a way to deal with homelessness. How could they not be disturbed by that? Grants Pass even criminalizes using a blanket while sleeping outdoors. Liberal or conservative, under what value system does jailing people for trying to stay warm constitute a crime?

“And for a homeless person who has no place to go, sleeping in public is kind of like breathing in public,” said Justice Elena Kagan.

Theane Evangelis, an L.A. attorney who is representing Grants Pass, argued that the inability to enforce the law has “tied cities’ hands” and “fueled the spread of encampments.”

Under the Grants Pass’ ordinance, fines for sleeping outside started at $295 and increased from there for people caught being homeless again, eventually leading to arrest and jail for 30 days. According to the 2019 homeless count, there were about 600 homeless people and one shelter in the city; the Gospel Rescue Mission has about 130 beds and requires attendance at a Christian chapel service twice daily and working, if physically able, for the mission for no pay.

This is not Los Angeles, where the city and county offer services and a variety of temporary housing options with the goal of helping people move into permanent housing. The goal in Grants Pass, as discussed in a public city council meeting in 2013, was to figure out how to make life uncomfortable enough for homeless people that they would leave. The ordinance was never about solving homelessness. (Officials of Josephine County, where Grants Pass is located, turned down an invitation to apply for a grant from a $200-million pool of state funding for housing, shelter and services.)

The justices seemed to get that.

“Where do we put them if every city, every village, every town lacks compassion … and passes a law identical to this? “ asked Justice Sonia Sotomayor. “Where are they supposed to sleep? Are they supposed to kill themselves, not sleeping?”

“You end up in jail for 30 days, then you get out, I mean, you’re not going to be any better off than you were before in finding a bed if there aren’t … beds available in the jurisdiction, unless you’re removed from the jurisdiction or you decide to leave somehow,” said Justice Brett M. Kavanaugh.

Evangelis insisted there are services available for homeless people in Grants Pass.

“So you’re saying there are services available, there’s treatment available, so people would ultimately move off the street? “ asked Justice Amy Coney Barrett. “Are you saying that if your law is enforced, there is a way for everyone to be cared for?”

“No,” said Evangelis. “I’m saying that’s a policy question that is quite difficult, but these laws are an important part of the puzzle. They’re not the only solution.”

In fact, they are no part of the solution, not for Grants Pass nor any city. And if the court allows Grants Pass to enforce the ordinance, it will allow any city tired of doing the heavy lifting of providing housing and services to resume fining or jailing homeless people in an effort — whether they say it out loud like Grants Pass officials did — to, once again, shoo homeless people from one block to another, one neighborhood to another, one city to another.

Kelsi Corkran, the attorney for the homeless individuals in the Grants Pass lawsuit, argued that the 9th Circuit decision left plenty of room for municipalities to manage street homelessness. They can restrict when and where homeless people can sleep or camp. They can ban tents, clear encampments, and “enforce a sleeping ban against homeless people who decline shelter, “ said Corkran. We don’t think homeless people reluctant to go into a shelter should be fined. Those fees just accumulate and leave them with a debt they can’t pay.

We hope the Supreme Court justices grasp the profound difficulty of truly solving homelessness and that they don’t let cities fall back on criminalizing people who are so desperately poor they have no homes.

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