The Supreme Court’s Majority Decision in Johnson vs. Grants Pass Is Unacceptable and Unconsionable

We Need Compassionate and Effective Solutions to Address Homelessness and Housing Instability, Not Criminalization – the Supreme Court’s Majority Decision in Grants Pass is Unacceptable and Unconscionable

Bay Area Legal Aid strongly disagrees with the Supreme Court’s majority decision in City of Grants Pass, Oregon vs. Johnson. The decision is destructive to efforts to address homelessness and poverty. Poverty, the homelessness crisis, and housing instability should be addressed by creating more affordable housing, contending with barriers to equitable economic opportunities, and supporting a stronger public safety net — not by criminalizing basic human needs and liberties. Our growing homelessness crisis results from a lack of investment in affordable housing and basic safety net services, and a collective failure to address growing socio-economic stratification. The Supreme Court’s Grants Pass decision will further exacerbate a growing crisis and fails to acknowledge our constitutional obligations and interconnected well-being as a society.

We agree with Justice Sotomayor, who powerfully discusses in her dissent the devastating impact of criminalizing people who are homeless:

Sleep is a biological necessity, not a crime. For some people, sleeping outside is their only option. The City of Grants Pass jails and fines those people for sleeping anywhere in public at any time, including in their cars, if they use as little as a blanket to keep warm or a rolled-up shirt as a pillow. For people with no access to shelter, that punishes them for being homeless. That is unconscionable and unconstitutional. Punishing people for their status is “cruel and unusual” under the Eighth Amendment.

The Supreme Court’s majority decision effectively allows Grants Pass and other jurisdictions to criminalize the “conduct” of sleeping outside or camping with fines or even jail time. In doing so the majority overturned important precedents set by cases like Martin vs. Boise, in which the 9^th Circuit held that criminalizing this type of conduct was unconstitutional where someone was involuntarily homeless, meaning they did not have anywhere else to go. In Grants Pass, the evidence showed that there was no public shelter in the city, leaving people who were unhoused no choice but to sleep and live outside.

Homelessness Is a Growing Crisis Affecting the Most Marginalized Members of Our Communities.

Homelessness and housing instability are crises whose impact and scope continue to grow and increasingly affect families with children, veterans, survivors of abuse and violence, and seniors.

Many tenants—especially older adults and tenants with disabilities who are on a fixed or low income—live under constant threat that they will become homeless if they are not able to pay increasing rent costs or if they are evicted for other reasons. In the Bay Area, tenants face extreme rent burdens due to the high cost of living, putting them at risk of eviction:

• “A Tool Kit to Close California’s Housing Gap: 3.5 Million Homes by 2015” (2016). McKinsey Global Institute.

As was recognized in the dissent, homelessness disproportionately impacts survivors of intimate partner violence.  Domestic violence is a leading cause of homelessness for women and children:

• “Domestic Violence, Housing, and Homelessness”. National Network to End Domestic Violence.
• “Toward Safety: Understanding Intimate Partner Violence and Homelessness” (January, 2024). Benioff Homelessness and Housing Initiative, University of California San Francisco.

Homelessness disproportionately impacts Black, Indigenous, and other People of Color as a result of a long and ongoing history of racial injustice and discrimination. Black residents in the San Francisco Bay Area have faced a history of redlining and discrimination that has pushed them out and made it more difficult for them to find and keep housing:

• “The Legacy of Redlining in the Bay Area: Explained” (October, 4, 2021). NBC Bay Area.
• “Black renters in San Francisco more likely to face discrimination, new research finds” (December 21, 2021). ABC 7 News.

Criminalization of Homelessness Is Costly and Does Not Create Long-Term Sustainable Results.

Criminalization is not the answer to solving homelessness and is more costly than investing in sustainable solutions such as access to affordable housing, coordinated basic healthcare, and supportive services.  Criminalization not only ignores the fact that homelessness is not a choice, as was acknowledged in both the majority and dissent opinions, but it is an expensive short-term reaction rather than a long-term preventive and strategic approach.  Criminalization increases the work of law enforcement, court systems, and jails; creates increasing barriers to stability, including loss of property and documents that must be replaced; increases the debt burden on low-income individuals by diverting limited funds from basic needs, including shelter; and further entrenches individuals and families in cycles of poverty and homelessness with higher utilization of more costly emergency healthcare and services. Unhoused people will be at increased risk of arrest and fines and fees they can’t pay.  Unless we address the underlying causes, encampments might temporarily be cleared, but people will return, given they may have no other option.

• Howard, Joshua; Tran, David; and Rankin, Sara, “At What Cost: the Minimum Cost of Criminalizing Homelessness in Seattle and Spokane” (2015). Homeless Rights Advocacy Project.
• Gillespie, Sarah; Ballard, Katrina; Batko, Samantha; and Peiffer, Emily, “Addressing Chronic Homelessness through Policing Isn’t Working. Housing First Strategies Are a Better Way” (2020). Urban Wire.
• Gillespie, Sarah; Chartoff, Benjamin; Hanson, Devlin; and Cunningham, Mary K., “The first step toward breaking the homelessness-jail cycle” (2016). Urban Wire.
• “The Cost of Long-Term Homelessness in Central Florida: The Current Crisis and the Economic Impact of Providing Sustainable Housing Solutions” (2014). Rethink Homelessness.

While we disagree with the majority’s opinion that criminalizing people for seeking shelter and sleep is not cruel and unusual punishment,  beyond the 8^th Amendment there are other Constitutional arguments and legal protections for individuals and families facing homelessness.  The opinions in fact pointed out that other legal theories can be pursued, such as claims under the due process clauses of the 5^th and 14^th Amendments.  As Justice Sotomayor wrote in the closing of her dissent: “It is quite possible, indeed likely, that these and similar ordinances will face more days in court.”

Much work lies ahead.  We need to work together to:

• Ensure individuals and families experiencing homelessness are not criminalized for the status of being unhoused
• Follow evidence-based research and practices and pursue effective and compassionate solutions that address the root causes of homelessness and housing instability;
• Invest in more affordable housing;
• Acknowledge and address the racial disparities in the housing and homelessness crisis;
• Fund and support targeted homelessness assistance programs; and
• Expand access to crucial safety net and health care services, as well as programs for domestic violence survivors

Homelessness prevention and intervention is at the core of BayLegal’s work. We believe it is possible and critical that we address and solve homelessness and economic stratification. Doing so benefits everyone.  BayLegal remains always committed to working alongside our clients and advocating for solutions to the multitude of barriers marginalized communities face, so that everyone has the basic human right to food, safety, healthcare, and housing.

This statement was developed by Hadley Rood, Sasha Ellis, Raegan Joern, Ariella Hyman, Genevieve Richardson, and Taylor Brady.