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SCOTUS Ignores Housing Crisis in Hearing on Laws Criminalizing Unhoused People

As the court hearing took place, unhoused people and their allies rallied outside, demanding “housing, not handcuffs.”

Advocates with lived homelessness experience demonstrate in front of the U.S. Supreme Court.

Grants Pass, Oregon, population 39,000, has passed three ordinances since 2017 to prohibit “sleeping on public sidewalks, streets, or alleyways,” and prohibit camping on “sidewalks, streets, alleys, lanes, public rights of way, parks, benches, or other publicly-owned property or under bridges or viaducts.” According to University of Mississippi law professor William W. Berry III, violation of these mandates can lead to a fine of $295 for the first offense; this escalates to $537.60 if unpaid. The law further allows the city to ban “offenders” from local parks for 30 days and arrest or incarcerate repeat offenders.

Not surprisingly, unhoused people in Grants Pass were appalled by these policies and, in October 2018, three impacted individuals — Gloria Johnson, Debra Lee Blake (who died in 2021) and John Logan — filed suit, charging that the policies were a violation of Eighth Amendment protections against cruel and unusual punishment. For the next six years, the case wound its way through lower courts before ending up before the U.S. Supreme Court earlier this week.

According to official government estimates, there are approximately 600 unhoused people in Grants Pass, with another 1,000 individuals living so precariously that they are at risk of imminent eviction. What’s more, the city’s indoor shelter options are few and far between. The largest, the Grants Pass Gospel Rescue Mission, runs the Fikso Family Center which can accommodate fewer than 100 people and requires residents to obey 29 rules, including abstaining from alcohol and drugs, and “dressing and behaving according to birth gender.” Attendance at religious services is mandatory.

A 13-bed “safe house” for female survivors of interpersonal violence and a four-bed shelter for adolescents between the ages of 18 and 21 are the only other shelter options.

The right-wing Cicero Institute is behind policies like those promulgated in Grants Pass as well as a recent spate of laws criminalizing the unhoused. According to the group, when unhoused people create encampments, sleep on the streets or lie down in public parks or on sidewalks, they pose an enormous danger to the health and safety of communities. But that “danger,” the institute says, can be mitigated through legislation, and its staff have created model bills for states and cities to use in crafting policies to criminalize these activities.

The proposed statutes offer a prototype for directing money away from Housing First programs that provide shelter to the unhoused without requiring them to stop drinking or using drugs, get medical or psychiatric treatment, or apply for welfare or other public benefits. In addition, the model bills provide language to enable lawmakers to amend civil commitment laws to make it easier to hospitalize or incarcerate someone deemed by law enforcers to be mentally ill or dangerous. Lastly, the model legislation sets up funding streams to establish short-term shelters and policed encampments that are located in remote, little-trafficked areas.

Although the Cicero Institute is a largely behind-the-scenes outfit, it has had remarkable success since its founding by Silicon Valley venture capitalist Joe Lonsdale. Lonsdale is best known as the developer of software giant Palantir Technologies Inc, which he created with CIA support in 2004. Since opening Cicero, he has worked closely with other deep-pocketed conservatives to impact policy on health care, education, housing and public safety. That said, criminalizing homelessness has been a top priority for the organization since its founding.

This focus has already had an appreciable impact.

In fact, the National Coalition for the Homeless reports that between 2006 and 2019, statewide bans on “public camping” have increased by 92 percent; arrests for panhandling, loitering and sleeping in vehicles overnight have also skyrocketed. All told, the National Homelessness Law Center reports that 48 of the 50 states have at least one law that restricts where unhoused people can rest.

“We know that communities are stronger when there is enough available and affordable housing for everyone,” Ann Oliva, CEO of the National Alliance to End Homelessness, told Truthout. “Punishing people, criminalizing resting, lying down, or sleeping in public is a political response rather than a strategic response. It does nothing to actually help unhoused people.”

Demonstrators from across the country listen to speakers in front of the U.S. Supreme Court as the debate on criminalizing homelessness unfolded inside.
Demonstrators from across the country listen to speakers in front of the U.S. Supreme Court as the debate on criminalizing homelessness unfolds inside.

The Case Before the Supreme Court

When City of Grants Pass v. Johnson went before the Supreme Court, the justices concentrated on whether the laws punished conduct or were, instead, a way to criminalize status — that is, punish people because they are unhoused. Justice Elena Kagan saw the distinction as negligible: “Sleeping is a biological necessity and for a homeless person who has no place to go, sleeping in public is kind of like breathing in public.” Justices Ketanji Brown Jackson and Sonia Sotomayor agreed.

But the conservative majority rebuffed this assertion. “If the Constitution protects the right to sleep outside,” Neil Gorsuch asked, “would the right then need to be extended to cooking or building a fire since eating is a human necessity?” He — along with Samuel Alito, Amy Coney Barrett, Brett Kavanaugh and Clarence Thomas — further rejected the idea that courts have a role to play in resolving this issue, calling rules that criminalize the homeless “micromanaging homeless policy.” As the justices probed this idea, they implied that the matter is best left to the discretion of local lawmakers.

The conservative majority also seemed unaffected by the 50-plus amicus briefs submitted to oppose criminalization, and seemed oblivious to the more than 500 people who were demonstrating in front of the courthouse, many of whom were, or had been, unhoused.

In addition to those protesting at the court, activists in 14 West Coast cities held simultaneous rallies to demand housing justice. The diverse demonstrators in D.C. included the Homeless Memorial Blanket Project, a three-year-old organization that distributes handmade quilts to people living on the street. Project founder Pat LaMarche, a longtime advocate for the homeless, attended the rally because she is appalled by the persecution of the poor. “Cruelty is the point of criminalizing unhoused people,” she told Truthout. “Arresting folks for sleeping in a park or doorway with a blanket or pillow is heartless. The blankets we distribute are made with love. They are a way of showing people a little kindness and support.”

Others at the rally stressed the importance of such gestures and made clear that criminalization exacerbates the trauma of being unhoused.

Molly, age 52, told Truthout that she was at the rally because she has been unhoused for most of her life. Now staying in San Antonio, Texas, she reported being routinely threatened with arrest and intimidated by police in a number of different cities. “The police never actually took me in, but I’ve been repeatedly told to move, to get the fuck out of the spot where I was resting,” she said. “It’s as if harassing me was entertainment for them.”

Like Molly, protester Maggie has never been ticketed or arrested, but she says that a friend in Port Townsend, Washington, has been given dozens of trespassing citations for sleeping in a park. “He gets a public defender each time he’s ticketed,” she said. “They always tell him to plead guilty, but what is he guilty of?”

That’s the same question Justin, a 37-year-old low-wage worker from New York City, asked. He told Truthout that the police have ticketed him numerous times for sleeping on the subways. “I have a room in Brooklyn but I work in Queens as a security guard. My usual shift is from 4:00 pm to midnight but I sometimes work a double, 16 hours. When I get on the train, I can’t help falling asleep. The police wake me up and sometimes make me get off the train. For what? All I was doing was sleeping. Sometimes I’m given a ticket, a fine of $100 and change. It’s ridiculous.”

As he speaks, Justin waves the sign he’s holding: “House Keys not Handcuffs.” “Why they gotta arrest folks who have nothing?” he said.

Demonstrators opposing the criminalization of homelessness rally in front of the U.S. Supreme Court.
Demonstrators opposing the criminalization of homelessness rally in front of the U.S. Supreme Court.

That question did not seem to interest the justices, nor did they correlate criminalization with the larger issue of housing affordability. Instead, they repeatedly zeroed in on the right of localities to control how public spaces are used — and by whom. Moreover, at no point did they address the fact that the Center on Budget and Policy Priorities estimates that while 5.3 million low-income households receive rental assistance — typically Section 8 vouchers — another 16 million people who are financially eligible for assistance do not receive it because of funding shortfalls.

This leaves them at the mercy of a rental market in which the national average rent for a one-bedroom apartment is currently $1,411, up from $1,274 in 2023.

Some cities, of course, are far more expensive: The average rent for a one-bedroom in New York City is $3,648, while in Los Angeles it is $2,069. In Chicago, the average is $1,752.

The upshot is that folks in every region of the country often have to scramble to stay housed. As the Harvard Joint Center for Housing Studies reports, half of all renters in 2022 — 22.4 million households — spent more than 30 percent of their income on rent and utilities. Needless to say, one unanticipated crisis can upend their ability to remain housed.

Advocates Know What Is Needed

Housing activists are calling for policy changes that can turn the tide and move housing from a commodity for profiteering to a human right.

According to Oliva, “the current affordable housing crisis has been building for decades. The human cost is enormous.”

It’s a daunting problem, she told Truthout. Nonetheless, advocates say they know how to fix it. “Back in 2008, policies were put into place to reduce homelessness among veterans. At that point, between 80,000 and 90,000 veterans were unhoused. That number has since been halved,” Oliva said. “Yes, we still have a way to go and vets are a unique population because they have access to programs and services like health care and case management.”

It’s also true, she continued, that some landlords seek out homeless veterans as people they deem “worthy” of help, as if they are different from other unhoused individuals. At the same time, Oliva says, “giving them housing vouchers has put roofs over tens of thousands of heads.”

Oliva also has strategies to assist nonveterans.

Short-term, “we need housing-focused shelters with services that are embedded, not programs that are only open from 7:00 pm to 7:00 am. The idea of a shelter should not just be to get people out of the cold or rain.”

Oliva also recommends giving people private spaces, rather than cots in congregate shelters — something that was done at the height of the COVID-19 pandemic. “During the public health emergency, there was also an eviction moratorium, but when the emergency ended, rents started to spike and evictions soared. In 2023, there was a 12 percent increase in the number of people experiencing homelessness. We have to increase the supply of affordable housing. Right now, one of every four households that are eligible for assistance get it; 75 percent do not. Even though rental assistance subsidizes private owners, we have to utilize all the tools we have, including vouchers.”

Oliva then zeroed in on the Faircloth Amendment, a 1990s-era rule that prevents the construction of new public housing and places limits on the number of public housing units a local housing authority can operate. Until it is repealed — a move championed by New York Congresswoman Alexandria Ocasio-Cortez — Oliva said that the federal government will be unable to scale up its development of publicly owned dwellings.

The Supreme Court is expected to issue its decision in June.

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