By Bob Needham
Michigan Law
A recent Supreme Court decision has the potential to drastically affect homelessness policy in the U.S., according to Professor Mira Edmonds.
In City of Grants Pass, Oregon, v. Johnson, the Court reversed the Ninth Circuit and upheld a local ordinance that essentially prohibits outdoor camping anywhere in the city of Grants Pass. On a 6-3 vote, the Court ruled that the ordinance does not specifically target homeless individuals and does not amount to “cruel and unusual punishment” under the Eighth Amendment.
Edmonds—a clinical assistant professor of law in the Civil-Criminal Litigation Clinic and the Pediatric Advocacy Clinic—has long been active on issues relating to housing and homelessness.
She recently answered five questions on the Grants Pass decision:
1. As a matter of law, do you agree with the majority opinion in this case?
No. Writing for the majority, Justice Neil Gorsuch does a pretty good job of putting a reasonable-seeming spin on the decision, beginning with acknowledgment of the homelessness crisis in this country. But his use of the data and social science is selective, to say the least. In terms of legal doctrine, I think the dissent has the more plausible position.
The case largely turns on interpretation of Robinson v. California, a 1962 Supreme Court case about a California statute that criminalized having a narcotics addiction. In that case, the Court said you can’t criminalize a status. The question here is whether the ordinance in Grants Pass criminalizes the status of being homeless or whether it criminalizes conduct that homeless people engage in. The dissent by Justice Sonia Sotomayor and several of the voluminous amicus briefs filed in this case argue that the city is criminalizing the status of being homeless because it prohibits sleeping or camping—defined broadly as using any bedding “for the purpose of maintaining a temporary place to live”—in any public space within city limits. You would only violate the statute if you don’t have a permanent place to live, and there is no way to avoid violating the statute if you are homeless living within Grants Pass, so it’s really criminalizing the status of being homeless.
2. What about the argument that it’s cruel and unusual punishment?
The majority opinion leans into a narrow interpretation of the Eighth Amendment. They say that the ordinance does not violate the cruel and unusual punishment clause because that clause is strictly about what punishment is permissible, not whether a certain kind of conduct can be criminalized. They also say that it is not cruel because it’s not aimed at creating “terror, pain, or disgrace”; and it’s not unusual because there are similar punishments around the country.
The dissent, and respondents and their amici, argue that the Eighth Amendment does apply here. When you have conduct that is not culpable—and they’re saying that sleeping outside when you literally have nowhere else to go is not culpable—any punishment of that conduct qualifies as cruel and unusual. That debate about what the Eighth Amendment means and how far it can be extended is an interesting one.
3. What do you expect the effects of this ruling will be? Will this prompt more of these ordinances, or more enforcement of the existing ordinances?
California Gov. Gavin Newsom has already issued an order to state officials to begin dismantling homeless encampments, so right away it’s having an effect. He can only order state officials; localities have to act on their own. But given that a number of local jurisdictions filed amicus briefs supporting the petitioners in this case, I think it’s likely that that’s going to happen as well.
Neither the Ninth Circuit opinion in Grants Pass nor the Ninth Circuit opinion in Martin v. City of Boise, which was the 2019 case that preceded this, said that localities can’t restrict camping at all. Both gave significant latitude to localities to impose certain time and place restrictions on camping, as well as to enforce prohibitions on particular conduct such as public urination, littering, illegal drug use, and so on. But the majority claims that Martin made it nearly impossible for local jurisdictions to deal with homeless encampments (while at the same time seeking to downplay localities’ overreliance on criminalization by asserting that is just one tool in the toolbox). Yet this ruling has made it easier for cities to take the harshest and, frankly, least sustainable approach to removing the most visible manifestations of our affordable housing crisis. I think this is not only wrong doctrinally but also, as a policy matter, short-sighted, ineffective, and cruel.
Some of the amicus briefs on the respondents’ side argue persuasively that ordinances like this are equivalent to banishment, which as a society we long ago discarded as a punishment. If you can’t be homeless anywhere within the city limits, you’re effectively banning people from existing in the city. And in most cases, people are homeless in the same place that they previously had homes. So you are actually saying to people for whom this is their home, “You can no longer be here.”
Finally, I think we will see further challenges to these types of ordinances by homeless individuals and their advocates. Justice Sotomayor ended her dissent by pointing the way for such challenges, specifically mentioning the possible viability of claims based on the due process clause of the Fifth and 14th Amendments or on the excessive fees clause of the Eighth Amendment (which was raised below but was not part of the Court’s cert grant).
4. In the majority opinion, Justice Gorsuch said we need a national policy on homelessness. What would you include in such a policy?
The housing issue is incredibly complex and is affected by market forces and our patchwork of federal, state, and local laws, as well as the patchwork of supports and protections. Many of the laws intended to protect tenants are not very effectively enforced, and some, like rent control and rent stabilization, have been weakened over the past several decades. On the support side, we have the Section 8 program of federally subsidized housing, but it’s vastly underfunded. So having a more national approach to at least parts of what is contributing to the homelessness crisis would be beneficial.
I would start by fully funding the Section 8 program. Only one in four households that are eligible for subsidized housing actually get it. There are so many people waiting for Section 8 housing that the waiting lists themselves are only occasionally open. Then once a household gets on a waiting list, they can wait years to get a voucher or get into public housing.
So we have this federal program, and it’s not perfect, but it works. Yet it is so underfunded that it really is not able to meet anywhere close to the needs of low-income families. And then there are the families who have too much income to qualify for Section 8 but are just one unanticipated medical bill or one smaller paycheck away from falling behind on their rent.
5. What could be done on a state or local level?
The government used to build public housing, and we have really moved away from that model, by and large. We switched to this voucher model, which isn’t perfect because you have to find private landlords willing to accept the vouchers, and there is absolutely discrimination against Section 8 voucher holders. In Michigan, we just passed new legislation that prohibits source-of-income discrimination in recognition that such discrimination can pose a significant barrier for low-income families.
In addition, we just don’t have enough decent-quality, affordable housing stock. We haven’t done enough construction nationally over the past several decades, and a lot of the construction that has been done is luxury units. I think the government should be building subsidized housing. We moved away from that model because of the sense that public housing projects concentrate poverty, and that’s not good for anyone. There is some truth to that, although we have such residential segregation in this country that the voucher program has not done a whole lot to deconcentrate poverty. In addition, a lot of the public housing fell into serious disrepair because, again, we just didn’t invest in maintaining it.
So we also should put more money into maintenance of public housing so that people who live there can have a decent quality of life.
Finally, wages have not kept pace with rent. Having living-wage ordinances in more jurisdictions, or raising the federal minimum wage to a living wage, could help people actually afford the rents. Then you would have fewer people who are spending 50 percent or more of their wages on rent. That’s just not tenable for anyone.
Michigan Law
A recent Supreme Court decision has the potential to drastically affect homelessness policy in the U.S., according to Professor Mira Edmonds.
In City of Grants Pass, Oregon, v. Johnson, the Court reversed the Ninth Circuit and upheld a local ordinance that essentially prohibits outdoor camping anywhere in the city of Grants Pass. On a 6-3 vote, the Court ruled that the ordinance does not specifically target homeless individuals and does not amount to “cruel and unusual punishment” under the Eighth Amendment.
Edmonds—a clinical assistant professor of law in the Civil-Criminal Litigation Clinic and the Pediatric Advocacy Clinic—has long been active on issues relating to housing and homelessness.
She recently answered five questions on the Grants Pass decision:
1. As a matter of law, do you agree with the majority opinion in this case?
No. Writing for the majority, Justice Neil Gorsuch does a pretty good job of putting a reasonable-seeming spin on the decision, beginning with acknowledgment of the homelessness crisis in this country. But his use of the data and social science is selective, to say the least. In terms of legal doctrine, I think the dissent has the more plausible position.
The case largely turns on interpretation of Robinson v. California, a 1962 Supreme Court case about a California statute that criminalized having a narcotics addiction. In that case, the Court said you can’t criminalize a status. The question here is whether the ordinance in Grants Pass criminalizes the status of being homeless or whether it criminalizes conduct that homeless people engage in. The dissent by Justice Sonia Sotomayor and several of the voluminous amicus briefs filed in this case argue that the city is criminalizing the status of being homeless because it prohibits sleeping or camping—defined broadly as using any bedding “for the purpose of maintaining a temporary place to live”—in any public space within city limits. You would only violate the statute if you don’t have a permanent place to live, and there is no way to avoid violating the statute if you are homeless living within Grants Pass, so it’s really criminalizing the status of being homeless.
2. What about the argument that it’s cruel and unusual punishment?
The majority opinion leans into a narrow interpretation of the Eighth Amendment. They say that the ordinance does not violate the cruel and unusual punishment clause because that clause is strictly about what punishment is permissible, not whether a certain kind of conduct can be criminalized. They also say that it is not cruel because it’s not aimed at creating “terror, pain, or disgrace”; and it’s not unusual because there are similar punishments around the country.
The dissent, and respondents and their amici, argue that the Eighth Amendment does apply here. When you have conduct that is not culpable—and they’re saying that sleeping outside when you literally have nowhere else to go is not culpable—any punishment of that conduct qualifies as cruel and unusual. That debate about what the Eighth Amendment means and how far it can be extended is an interesting one.
3. What do you expect the effects of this ruling will be? Will this prompt more of these ordinances, or more enforcement of the existing ordinances?
California Gov. Gavin Newsom has already issued an order to state officials to begin dismantling homeless encampments, so right away it’s having an effect. He can only order state officials; localities have to act on their own. But given that a number of local jurisdictions filed amicus briefs supporting the petitioners in this case, I think it’s likely that that’s going to happen as well.
Neither the Ninth Circuit opinion in Grants Pass nor the Ninth Circuit opinion in Martin v. City of Boise, which was the 2019 case that preceded this, said that localities can’t restrict camping at all. Both gave significant latitude to localities to impose certain time and place restrictions on camping, as well as to enforce prohibitions on particular conduct such as public urination, littering, illegal drug use, and so on. But the majority claims that Martin made it nearly impossible for local jurisdictions to deal with homeless encampments (while at the same time seeking to downplay localities’ overreliance on criminalization by asserting that is just one tool in the toolbox). Yet this ruling has made it easier for cities to take the harshest and, frankly, least sustainable approach to removing the most visible manifestations of our affordable housing crisis. I think this is not only wrong doctrinally but also, as a policy matter, short-sighted, ineffective, and cruel.
Some of the amicus briefs on the respondents’ side argue persuasively that ordinances like this are equivalent to banishment, which as a society we long ago discarded as a punishment. If you can’t be homeless anywhere within the city limits, you’re effectively banning people from existing in the city. And in most cases, people are homeless in the same place that they previously had homes. So you are actually saying to people for whom this is their home, “You can no longer be here.”
Finally, I think we will see further challenges to these types of ordinances by homeless individuals and their advocates. Justice Sotomayor ended her dissent by pointing the way for such challenges, specifically mentioning the possible viability of claims based on the due process clause of the Fifth and 14th Amendments or on the excessive fees clause of the Eighth Amendment (which was raised below but was not part of the Court’s cert grant).
4. In the majority opinion, Justice Gorsuch said we need a national policy on homelessness. What would you include in such a policy?
The housing issue is incredibly complex and is affected by market forces and our patchwork of federal, state, and local laws, as well as the patchwork of supports and protections. Many of the laws intended to protect tenants are not very effectively enforced, and some, like rent control and rent stabilization, have been weakened over the past several decades. On the support side, we have the Section 8 program of federally subsidized housing, but it’s vastly underfunded. So having a more national approach to at least parts of what is contributing to the homelessness crisis would be beneficial.
I would start by fully funding the Section 8 program. Only one in four households that are eligible for subsidized housing actually get it. There are so many people waiting for Section 8 housing that the waiting lists themselves are only occasionally open. Then once a household gets on a waiting list, they can wait years to get a voucher or get into public housing.
So we have this federal program, and it’s not perfect, but it works. Yet it is so underfunded that it really is not able to meet anywhere close to the needs of low-income families. And then there are the families who have too much income to qualify for Section 8 but are just one unanticipated medical bill or one smaller paycheck away from falling behind on their rent.
5. What could be done on a state or local level?
The government used to build public housing, and we have really moved away from that model, by and large. We switched to this voucher model, which isn’t perfect because you have to find private landlords willing to accept the vouchers, and there is absolutely discrimination against Section 8 voucher holders. In Michigan, we just passed new legislation that prohibits source-of-income discrimination in recognition that such discrimination can pose a significant barrier for low-income families.
In addition, we just don’t have enough decent-quality, affordable housing stock. We haven’t done enough construction nationally over the past several decades, and a lot of the construction that has been done is luxury units. I think the government should be building subsidized housing. We moved away from that model because of the sense that public housing projects concentrate poverty, and that’s not good for anyone. There is some truth to that, although we have such residential segregation in this country that the voucher program has not done a whole lot to deconcentrate poverty. In addition, a lot of the public housing fell into serious disrepair because, again, we just didn’t invest in maintaining it.
So we also should put more money into maintenance of public housing so that people who live there can have a decent quality of life.
Finally, wages have not kept pace with rent. Having living-wage ordinances in more jurisdictions, or raising the federal minimum wage to a living wage, could help people actually afford the rents. Then you would have fewer people who are spending 50 percent or more of their wages on rent. That’s just not tenable for anyone.
