Is homelessness a crime? The answer should clearly be no. Unfortunately, the Supreme Court agreed Friday to reconsider the case that raised that question. Conservative justices have good reason to fear that the government will allow the government to criminalize sleeping in public even when people have nowhere else to go.
The case, Johnson v. City of Grants Pass, involves a local ordinance that says, “As a matter of personal and public safety, no one may sleep on public sidewalks, streets, or alleys at any time.” The law also prohibits homeless people from using blankets, pillows, or cardboard boxes to protect themselves from the elements.
A panel of the U.S. Ninth Circuit Court of Appeals based in San Francisco declared this unconstitutional, concluded that the government could not punish people criminally or civilly for not having a home or bedding. The court relied on a significant 2018 judgment. Martin vs BoiseThe Eighth Amendment provides protections against cruel and unusual punishment and “imposes criminal penalties for homeless persons who cannot afford shelter to sit, sleep, or lie on public property outdoors. “It is prohibited to impose penalties.”
The Supreme Court declined to hear Martin v. Boise but was expected to adopt the grant path case. When the entire Ninth Circuit narrowly refused to review the panel's decision in the latter case, the court's Republican-appointed justices vehemently disagreed, saying that the Supreme Court's review could not be more emphatically There wasn't.
Furthermore, even Democratic Party officials such as Governor Gavin Newsom And the city attorney Los Angeles The city of San Francisco then asked the Supreme Court to reverse the Ninth Circuit's decision.
It is understandable that these officials want more powers to deal with homelessness. But the solution cannot be to punish or criminalize the homeless.
The Ninth Circuit got exactly that right. All humans must sleep. When people living in cities don't have enough housing or shelter, as they do throughout California, they have no choice but to sleep on sidewalks and parks and use blankets and cardboard to keep warm.
It is cruel and unusual to punish people for unavoidable acts. As Ninth Circuit Judge Marcia Berzon explained, it is unconstitutional to punish someone for “just sleeping.” where In public if there is no other place to do so. ”
In the 1962 incident Robinson vs. California, the Supreme Court ruled that the Eighth Amendment does not allow the government to punish individuals because of a status that cannot be changed. Specifically, the court ruled that being a drug addict cannot be criminalized. This is the same as criminalizing “suffering from a mental illness, Hansen's disease, or a sexually transmitted disease.''
In both Boise and Grants Pass, the Ninth Circuit found that laws criminalizing sleeping in public places were impermissible penalties for homelessness. Criminal law exists to punish people who choose to violate the law, not to punish people who have no choice.
None of this negates the challenges cities face in addressing homelessness. But the government can address this problem without criminal law, as Los Angeles has demonstrated in reducing its unhoused population under Mayor Karen Bass. It is noteworthy that the Ninth Circuit specifically recognized the city's right to remove encampments and prevent the use of tents on public lands. Most importantly, states, counties, and cities must find ways to provide adequate housing and shelter.
But I am concerned that conservative justices will choose to give the government the power to enforce criminal laws against people who are unhoused, narrowing Eighth Amendment protections in doing so. are doing. Homelessness cannot be reduced or eliminated, but it will reduce everyone's constitutional rights.
Erwin Chemerinsky is a contributor to Opinion and dean of the University of California, Berkeley School of Law. His latest book is “worse than nothing: The dangerous fallacy of originalism. ”
