If you have no shelter and are arrested for sleeping outside, are you being punished for something you did – or for being homeless?
On June 28, 2024, the U.S. Supreme Court decided 6-3 that the Oregon city of Grants Pass may prohibit camping, even if there are no free shelter beds in the area. Critics have argued that this policy was a form of “cruel and unusual punishment,” in violation of the Eighth Amendment to the U.S. Constitution. A lower court agreed, saying it is unconstitutional to arrest people for a normal and necessary human behavior – sleeping – if there is nowhere else to go.
But Friday’s decision reversed that ruling. Such laws do not qualify as cruel, the court found, because they are not designed to inflict “terror, pain, or disgrace.” Nor are they uncommon. And they criminalize an action, the majority note, not the status of experiencing homelessness.
As a professor of philosophy who studies homelessness , I believe it is important to understand camping bans as part of wider efforts to displace unhoused people. Cities do many things to assist people experiencing homelessness, providing everything from shelters to food pantries . Yet cities also use a variety of tactics to push unhoused people out of public view.
Perhaps the most revealing is “ hostile architecture ,” a focus of my research. This term is often used for public spaces designed in ways that discriminate against specific vulnerable populations. The most common examples are objects that present a physical barrier to everyday activities for people without housing.
Hostile design
One common example are spikes added to ledges to deter people from leaning or sitting. Since spikes are often quite noticeable, however, and their purpose is obvious, they occasionally elicit controversy .
Spikes on a ledge in San Francisco. Robert Rosenberger
Another pervasive but less attention-grabbing form of hostile architecture are benches that have been redesigned to make them difficult or impossible to use as sleeping spaces. This is accomplished through a variety of design schemes that prevent people from lying down, from bucket seating or seat dividers to armrests.
Any number of other hostile physical obstructions can be found. Garbage cans are often fitted with hood designs, as well as external cases with built-in locks, to deter trash-picking.
A fenced-off underpass in Charlotte, S.C. Robert Rosenberger
Hostile design isn’t always about objects; sometimes it involves actions, too.
Businesses and churches have been accused of regularly spraying water on potential sleeping spaces, sometimes via automatic sprinkler systems . Noise pollution can be another strategy, blasting loud music or annoying sounds to clear potential loitering places. Such was the case of a park in West Palm Beach, Florida, where the cloying children’s song “Baby Shark” was played along with other kids tunes each night.
Legal scholar Sarah Schindler argues that these kinds of hostile designs should be recognized as a form of regulation. As she puts it , “Regulation through architecture is just as powerful as law, but it is less explicit, less identifiable, and less familiar to courts, legislators, and the general public.”
Like the law, hostile architecture can have the effect of regulating people’s behaviors. But unlike the law, instances of hostile architecture are not subject to any kind of official oversight and often go unnoticed.
What’s there – and what’s not
Once you learn about hostile architecture, you start to see examples everywhere. But perhaps even more importantly, you also begin to notice the absence of certain items and services in public spaces.
A sidewalk bench with armrests in New York City. Robert Rosenberger
Hostile architecture, however, is only the tip of the iceberg. Just below the surface are the variety of laws that target particular behaviors: storing personal items in public space , loitering, panhandling and vagrancy. There are laws against sitting or lying down in public – so-called sit/lie laws. Anti-camping laws often apply not just to tents but to using any kind of covering at all, such as a blanket.
Trash and recycle cans with rain hoods and padlocked casings in Philadelphia. Robert Rosenberger
The National Homelessness Law Center has been charting the increase in these kinds of laws across the United States. In a review of 187 cities from 2006-2019, the center found a 78% increase in sit/lie laws and a 103% increase in laws against vagrancy, loafing and loitering. There was also a 92% increase in camping bans.
Many shelters, where they exist, are not open during daytime hours, leaving people without housing no choice but to loiter or continue moving throughout the day.
At times, shelters themselves present roadblocks that discourage people from using their services, such as patterns of discrimination against LGBTQ+ patrons or policies that ban pets.
Stakes at SCOTUS
On their own, many of these laws or objects may seem unobjectionable, or at least not a big deal. How much should we care about a bench with armrests, or a park with rules prohibiting sleeping?
When taken in the aggregate, however, these things can function together to exclude the unhoused from public space entirely. None of them literally make homelessness a crime – but in critics’ eyes, these laws and patterns of design have the same effect.
Justice Sonia Sotomayor, one of three to dissent from the majority’s decision in Grants Pass v. Johnson , raised a similar idea. The city’s camping ban punishes people for experiencing homelessness, she argued, leaving “the most vulnerable in our society with an impossible choice: Either stay awake or be arrested.”
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