City of Grants Pass v. Johnson

An Oregon city called Grants Pass enacted “public camping” laws that banned people who are homeless from using blankets, sleeping bags, or any “material used for bedding purposes” to sleep anywhere in public in the city, under penalty of hefty fines and potential jail time. A class of involuntarily homeless residents of the city challenged the laws, and in support of the class, the MacArthur Justice Center represented four criminal law and punishment scholars as amici curiae. Our brief argued that these ordinances violated the Eighth Amendment because it is not lawful to punish someone who has done nothing wrong, like the people in Grants Pass who must sleep outside because they have nowhere else to go.  

In Grants Pass, Oregon, city ordinances were enacted prohibiting “camping” (defined to include having blankets or bedding in a public area with the intent to temporarily live there), under penalty of hefty fines with the possibility of jail time. Two residents of Grants Pass, Gloria Johnson and John Logan, challenged the ordinances on behalf of a class of involuntarily homeless people living in the city. They argued that the ordinances violated the Eighth Amendment’s prohibition on cruel and unusual punishment because it punished them for the status of being involuntarily homeless, contrary to Robinson v. California, 370 U.S. 660 (1962). In that case, the Supreme Court invalidated a similar ordinance that criminalized the status of being addicted to narcotics. Such punishment was inherently unconstitutional, the Court explained, just as “[e]ven one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.”

In a careful decision, the Ninth Circuit ruled in favor of the plaintiff class, holding that it is cruel and unusual to punish taking minimal measures to stay warm and dry while sleeping in a public space. The Ninth Circuit made clear that the city was free to regulate a variety of other safety and public health issues, including fires, tents, and sanitation. It simply could not punish people for using “bedding” to stay warm while sleeping outside when no alternative forms of shelter are available. The city petitioned that ruling to the Supreme Court and the petition was granted.

The MacArthur Justice Center wrote an amicus brief on behalf of four criminal law and punishment scholars—Professors William Berry (Ole Miss), Sharon Dolovich (UCLA), Christopher Lewis (HLS), and Aaron Littman (UCLA)—arguing that the ordinances violate the Eighth Amendment’s basic prohibition on disproportionate punishment, because punishing something that is not culpable at all—like sleeping outside or using a blanket to stay warm when there is no alternative shelter available—is inherently disproportionate. No punishment would be proportional for the “crime” of having nowhere to go at night.

Unfortunately, a majority of the Supreme Court ruled for the city. In a disappointing and concerning decision, the Court held that the “limited” fines and jail terms are not cruel and unusual because they bear no resemblance to the kind of “barbaric punishments” that had fallen out of use by the 18th century, such as “disemboweling, quartering, public dissection, and burning alive.” Unlike those punishments, the Court determined that the Grants Pass ordinance did not aim to “superad[d]” “terror, pain, or disgrace.” As for Robinson, the Court called it an “anomaly,” and concluded that it did not apply because the Grants Pass ordinances criminalized an act—i.e., “occupy[ing] a campsite on public property for the purpose of maintaining a temporary place to live”—not a status. Even if “occupying a campsite” meant as little as using a blanket to stay warm. Ultimately, the Court insisted that states should be able to dictate their own policies with regard to homelessness.

As Justice Sotomayor, joined by Justice Kagan and Justice Jackson, explained in her dissent, the majority is wrong: “Sleep is a biological necessity, not a crime,” and the Eighth Amendment forbids punishing people who sleep outside because it “is their only option.” Justice Sotomayor cited the amicus curiae brief filed by our clients in explaining how the Grants Pass ordinances “single out for punishment the activities that define the status of being homeless”:

The Ordinances by their terms single out homeless people. They define “campsite” as “any place where bedding, sleeping bag, or other material used for bedding purposes” is placed “for the purpose of maintaining a temporary place to live.” §5.61.010. The majority claims that it “makes no difference whether the charged defendant is homeless.” Ante, at 20. Yet the Ordinances do not apply unless bedding is placed to maintain a temporary place to live. Thus, “what separates prohibited conduct from permissible conduct is a person’s intent to ‘live’ in public spaces. Infants napping in strollers, Sunday afternoon picnickers, and nighttime stargazers may all engage in the same conduct of bringing blankets to public spaces [and sleeping], but they are exempt from punishment because they have a separate ‘place to live’ to which they presumably intend to return.” Brief for Criminal Law and Punishment Scholars as Amici Curiae 12.

The majority’s refusal to recognize that the Eighth Amendment prohibits such punishment will have significant consequences for those affected by the city’s harmful policy, and for those working to protect civil rights across the country. Still, as Justice Sotomayor explained, there are other legal tools available to challenge these laws.

The MacArthur Justice Center stands in solidarity with those fighting to ensure that everyone has a safe place to live.