Supreme Court opens door for punitive anti-homeless policies

July 19 (UPI) -- The U.S. Supreme Court 's ruling an Oregon city can jail and fine the homeless has set a low floor for recognizing human rights but local governments have the opportunity to guarantee greater protections.

The high court released its opinion in the case of Grants Pass, Ore., vs. Johnson late last month, ruling that the city's punishments for camping on public property, namely public parks, do not violate the Eighth Amendment's cruel and unusual punishment clause. Justice Neil Gorsuch , writing the majority opinion, said it is not up to the federal circuit courts to decide how municipalities address homelessness.

"Homelessness is complex. So may be the public policy responses required to address it," Gorsuch wrote. "Yes, people will disagree over which policy responses are best; they may experiment with one set of approaches only to find later another set works better. But in our democracy, that is their right."

"Nor can a handful of federal judges begin to 'match' the collective wisdom the American people possess in deciding 'how best to handle' a pressing social question like homelessness," he continued.

Grants Pass ordinance

The Oregon Law Center filed a lawsuit against Grants Pass in 2018 to stop the ordinance, leading to a federal injunction in 2020, stopping the city from enforcing anti-camping ordinances when the homeless have nowhere else to go.

The state of Oregon adopted a law in 2021 requiring that city and county ordinances that restrict people from "acts of sitting, lying, sleeping or keeping warm and dry outside on public property" must be "objectively reasonable." Again this relates to the availability of shelters.

Grants Pass Mayor Sara Bristol was elected in 2020. Though she did not run for office on a platform including policies to address homelessness, it has become a defining issue. She faced and withstood a recall election last year, driven by a "Take Back Our Parks" campaign.

Grants Pass has a population of about 39,000, with about 600 who are homeless.

Bristol told UPI that many in the community have grown frustrated by the number of tents in their roughly 20 city parks, pocket parks and similar public spaces. However, as Gorsuch alluded to, the causes and solutions are not so simple.

"It's hard to get people to hear sometimes that we can do both things simultaneously," Bristol said. "I don't think cleaning up the park and helping the homeless are mutually exclusive concepts."

At a glance, some may view the Supreme Court's decision as a win for Grants Pass. Bristol does not see it that way. There are still unhoused people in the community, few shelter options and limited services.

Grants Pass is the only city in the mostly rural Josephine County, Ore. The nearest towns of similar size are about 25 miles away, surrounded by heavily forested countryside.

Neighboring Jackson County received about $9 million in emergency funding from a $130 million homelessness relief package passed by the state legislature last year. Bristol said the Josephine County Board of Commissioners did not apply for any of the funds.

Next steps

It is not yet clear what direction the city will go to address the problem either. Bristol does not expect it to simply adopt the ordinances that it passed years ago. Most of the city council has changed and it is not a policy she has endorsed.

"In the coming days here, the council is going to be looking at a new set of ordinances going forward that will help define some places where people cannot set up tents and potentially some places where they can," Bristol said. "I don't like the way my community has dealt with this in the past and I hope we can do better in the future."

Bristol acknowledged that pushing the homeless out of view, while satisfying some members of the community, can have an adverse effect as well. It is likely to disconnect them from points of care.

Community organizations like the Mobile Integrative Navigation Team visit the parks to deliver medical care to those who are camping there. There is also the St. Vincent De Paul Soup Kitchen that brings food to the unhoused.

Bobby Watts, CEO of National Health Care for the Homeless Council, told UPI that displacing the unhoused greatly increases the likelihood of negative outcomes, including an increase in drug-related morbidity.

"The idea that we can fine people, threaten them with jail time for sleeping outside a home when they don't have one seems to be counterintuitive," Watts said. "It will make it harder to engage people with health services. It will lead to more people who are experiencing homelessness dying."

Watts spoke at a rally outside of the Supreme Court on the day its decision was handed down. During his speech he emphasized the impact that homelessness has on health, including an increase in chronic health issues.

"It wasn't surprising but no less tragic. No less cruel. No less inhumane," Watts told UPI. "It seems as though the majority were saying, 'We can't decide homeless policy.' That was not the question."

The bar Gorsuch set for cruel and unusual punishment was based on 18th century English law. At the time, he said, the law "formally tolerated" punishments like disembowelment, quartering, public dissection and burning people alive.

By that standard, Gorsuch finds that the Eighth Amendment provides a "poor foundation" to argue against Grants Pass' ordinances.

'Disappointing' decision

The National Homelessness Law Center was among those to file amicus briefs with the Supreme Court against the Grants Pass ordinances. It described the history of vagrancy laws in America as a way to "target poor outsiders" and use fear and harmful characterizations to rationalize restricting the rights of others.

Bristol described the temperament toward the unhoused in her community similarly.

"A couple of things I've noticed about how people feel about the homeless and how they feel about this situation depends on whether or not you believe the homeless are from here," she said.

Ed Johnson , an attorney with the Oregon Law Center in Portland, Ore., told UPI that while the court's decision is disappointing, there are other avenues available to protect the rights of the unhoused.

"The decision is really disappointing because it is legally and morally wrong," Johnson said. "But the court only ruled on the cruel and unusual punishments clause. There are many other arguments to protect people who have to live outside with no choice. The excessive fines clause was not reached. Due process, equal protection, discriminatory enforcement, state-created danger, disability-related arguments."

Gorsuch alluded to other legal protections outlined in the Constitution as well, writing that, "many substantive legal protections and provisions of the Constitution may have important roles to play when states and cities seek to enforce their laws against the homeless."

"Even if the Supreme Court case went the other way we'd still have more than a quarter million Americans living outside in the richest country in the world," Johnson said. "The question we face is how we end that."

National implications

The implications of the Supreme Court decision reach far beyond the city limits of Grants Pass. The court did not rule that city, county or state governments must enact such penalties against the homeless, only that they can.

But setting the bar so low has raised the concern of those working to end homelessness in the United States.

Eric Tars, senior policy director for the National Homelessness Law Center, told UPI allowing governments to fine and jail the homeless will only worsen the problem. Ordinances like these will create more dangerous interactions between the unhoused and law enforcement and will require law enforcement resources to be diverted from policing more serious crimes.

Bristol said the same about police resources.

"By giving permission to police, the official authority to punish people, it also gives the tacit permission to private people to act as vigilantes," Tars said. "It makes homeless people less safe. It makes the entire community less safe when you take this kind of approach."

Grants Pass is far from the only community that has adopted punitive anti-homeless ordinances. Portland and Boulder, Colo., are among the cities with laws that prohibit people from sleeping outside or using items like blankets and boxes to protect themselves from the elements. Kansas City, Mo., and Anchorage, Alaska, having bans against camping on public property.

Other cities, such as Los Angeles are reviewing past ordinances that if implemented would create stricter rules against the homeless.

Missoula, Mont., is one of the latest cities to adopt a camping ban, doing so days before the Supreme Court decision came down. It will go into effect next Thursday.

"Despite this widespread understanding that everybody needs a safe place to sleep, the Supreme Court, in a shameful but unsurprising ruling, said that homeless people are not included in the Constitutional protections against cruel and unusual punishment when trying to sleep and shelter themselves from the elements," Tars said. "It does not address affordable housing. Fining them for sleeping outside and throwing them in jail only creates further barriers."