Earlier this year, public officials in San Francisco and across California invited the U.S. Supreme Court to give them greater flexibility to crack down on people experiencing homelessness. On Friday, the right-wing supermajority on the court obliged. In City of Grants Pass v. Johnson, the court overturned the San Francisco-based Ninth Circuit Court of Appeals, saying that the Constitution does not prohibit cities from punishing homeless people for sleeping outside, even when there are no shelter beds or anywhere else for them to go.
The Constitution, according to the court, permits public banishment for some of the most vulnerable people in our communities.
Despite the 6-3 majority opinion and assertions in briefs by Mayor London Breed, Governor Gavin Newsom and others, the lower court’s decision and another similar case from Boise, Idaho, had nothing to do with cities’ ability to enforce health and safety laws or to manage homeless encampments.
The legal question was actually quite narrow: In the absence of adequate shelter, does imposing civil and criminal sanctions on people for sleeping outside violate the Eighth Amendment’s prohibition on cruel and unusual punishment?
A faithful reading of the facts and well-established case law that prohibits punishing people solely for their status—in this case, the status of being unhoused—should have been an easy call. Instead, encouraged by cities to review the lower court decisions that had offered homeless people the barest of Constitutional protections, an activist court bent over backward to take the case and on Friday set back the clock on the cruel and unusual punishment clause itself.
In an exasperated dissent by Justice Sonia Sotomayor, the court’s three progressive justices decried the majority for greenlighting “unconscionable and unconstitutional” laws that criminalize people for sleeping outside when there is nowhere else to go.
The original “purpose, text and enforcement” of the ordinances that allow people to be moved for sleeping outside “confirm that they target status, not conduct. For someone with no available shelter, the only way to comply with the ordinances is to leave Grants Pass altogether,” Sotomayor wrote.
Now, homeless people will again be subjected to the enormous power of the state to punish them simply for being unhoused, particularly in western states where lower court rulings had until today provided some measure of protection. This additional punishment will only compound the misery experienced by homeless people, who are already harassed, cited, fined and jailed under dozens of other state and local laws that either target them directly or are disproportionately enforced against them.
Key incentive is gone
By striking down the Ninth Circuit decisions that barred these inhumane practices, the court has also removed a key incentive for state and local governments to provide more temporary shelter beds and build more permanent supportive housing. Data from the Department of Housing and Urban Development show that the western states blocked by lower courts from criminalizing homelessness have been adding shelter beds at three times the rate of other states. Elected officials have also launched tiny home initiatives and other affordable housing efforts to address various aspects of the problem.
What will happen now?
The majority and dissent agreed on one thing: Just because the court says the Constitution allows such draconian laws doesn’t mean that lawmakers have to embrace them, so cities and states are responsible for what comes next. When California public officials asked the Supreme Court to take the case, many went out of their way to say that they did not want to “criminalize homeless individuals,” they just wanted more “tools” to deal with local challenges.
Cities would be wise not to go back on their word. We know from medical and social science research, including in San Francisco and across California, that criminalizing homelessness is bad public policy. Driving homeless people further into the justice system does not reduce homelessness. On the contrary, enforcing laws like those the court upheld Friday deepens the problem by destabilizing individuals and families, driving unsheltered people into more desperate and unhealthy conditions to avoid punishment.
California’s elected officials got what they wanted from the Supreme Court, but if they are serious about ending homelessness, they will recommit to a housing-first strategy. They must address the affordability crisis by developing low-income housing. In the short term, cities large and small must offer their residents safe and accessible shelter, free of onerous restrictions, including tiny homes, safe parking and non-congregate shelters, each with supportive services and a pathway to stable housing.
Until the shelter and housing crises are fully addressed, state lawmakers should reject the punishment-first model by passing legislation that codifies basic protections for homeless people to exist in public. In 2021, Oregon passed a law restricting local governments from punishing people for sleeping in public. California legislators have considered bills in the past that would create a “right to rest” in public.
Cities and states, however, can not do this alone. The federal government also has a critical role to play. Advocates have called on the Biden administration and Congress to invest in safe, decent and affordable housing by funding universal rental assistance for people in the lowest-income households, preserving and repairing public housing, and offering legal defense for people facing eviction.
Our whole society benefits when all of us are housed. The solution to homelessness is housing, not banishment.
Jeffrey Selbin is the Chancellor’s Clinical Professor of Law at UC Berkeley. He has studied the growing enactment and enforcement of anti-homeless laws in California. Jamie Suki Chang is an Associate Professor of Social Welfare at UC Berkeley. She has studied local homeless trends for 20 years.