Comment: Supreme Court may soon allow arrests for homelessness

By Erwin Chemerinsky / Los Angeles Times

Is homelessness a crime? The answer should obviously be no. Unfortunately, the Supreme Court agreed Friday to review a case that poses that question, and there is every reason to fear that the conservative justices will allow governments to criminalize sleeping in public spaces even if people have nowhere else to go.

The case, Johnson v. City of Grants Pass, involves a local ordinance for the Oregon city that says: “No person may sleep on public sidewalks, streets, or alleyways at any time as a matter of individual and public safety.” The law also prohibits homeless people from using blankets, pillows or cardboard boxes for protection from the elements.

A panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit declared this unconstitutional, concluding that the government can’t punish people criminally or civilly for being unhoused or for having bedding materials. The court relied on its consequential 2018 ruling in Martin v. Boise, which held that the 8th Amendment protection against cruel and unusual punishment “prohibits the imposition of criminal penalties for sitting, sleeping or lying outside on public property for homeless individuals who cannot obtain shelter.”

The Supreme Court declined to review Martin v. Boise but was expected to take the Grants Pass case. When the entire 9th Circuit Court of Appeals narrowly declined to review its panel’s decision in the latter case, the court’s Republican-appointed judges vehemently dissented and could not have been more emphatic in urging Supreme Court review.

Moreover, even Democratic officials such as California Gov. Gavin Newsom and the city attorneys of Los Angeles and San Francisco urged the Supreme Court to reverse the 9th Circuit.

It’s understandable that these officials want more power to deal with the problem of homelessness. But the solution can’t be punishing or criminalizing homeless people.

The 9th Circuit got it exactly right. Every human being must sleep. If there isn’t enough housing or shelter for the people who live in a city — as is the case throughout California — people have no choice but to sleep on sidewalks and in parks and use blankets and cardboard for warmth.

It is cruel and unusual to punish people for conduct they can’t avoid. As 9th Circuit Judge Marsha Berzon explained, it’s unconstitutional to punish “simply sleeping somewhere in public if one has nowhere else to do so.”

In the 1962 case Robinson v. California, the Supreme Court held that the 8th Amendment does not allow the government to punish a person for a status that he or she can’t change. Specifically, the court ruled that a person could not be criminally punished for being a narcotics addict, which would be like making it a crime “to be mentally ill, or a leper, or to be afflicted with a venereal disease.”

In both the Boise and Grants Pass cases, the 9th Circuit found that laws that make it a crime to sleep in public impermissibly punish the status of being homeless. Criminal law exists to punish people who choose to break the law, not for conduct that is not a choice.

None of this is to deny the challenges that cities face in dealing with homelessness. But as Los Angeles is demonstrating in reducing its unhoused population under Mayor Karen Bass, governments can address this problem without using the penal code. It’s worth noting that the 9th Circuit explicitly recognized the right of cities to clear encampments and prevent the use of tents on public property. Most important, states, counties and cities must find ways to provide enough housing and shelter.

I worry, however, that the conservative justices will choose to empower governments to use criminal laws against their unhoused people and narrow the protections of the 8th Amendment in doing so. It won’t reduce homelessness or make it go away, but it will diminish everyone’s constitutional rights.

Erwin Chemerinsky is a contributing writer to Opinion and the dean of the UC Berkeley School of Law. His latest book is ” Worse Than Nothing: The Dangerous Fallacy of Originalism.” ©2024 Los Angeles Times, latimes.com. Distributed by Tribune Content Agency, LLC.