U.S. Supreme Court

Chemerinsky: Will SCOTUS consider it cruel and unusual punishment to prosecute homeless people for sleeping in public?

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Erwin Chemerinsky. (Photo by Jim Block. Adjacent photo by Richard Vogel/The Associated Press)

Can a city make it a crime for unhoused people to sleep in public if there are no other places for them to go? On April 22, the U.S. Supreme Court will hear oral arguments on this issue in City of Grants Pass, Oregon v. Johnson, a case of enormous interest to the many cities that are struggling with burgeoning populations of unhoused people.

Martin v. City of Boise

A September 2022 decision by the 9th U.S. Circuit Court of Appeals at San Francisco in Johnson v. City of Grants Pass was based on its earlier ruling in Martin v. City of Boise in 2018.

Boise, Idaho, enacted an ordinance that made it a misdemeanor to use “any of the streets, sidewalks, parks or public places as a camping place at any time.” The camping ordinance defined “camping” as “the use of public property as a temporary or permanent place of dwelling, lodging or residence.”

The 9th Circuit, in an opinion by Senior Judge Marsha Berzon, found that it was cruel and unusual punishment to impose criminal penalties on homeless people for sleeping in public if there were not adequate shelter beds.

The court relied on the Supreme Court’s decision in 1962 in Robinson v. California, which declared unconstitutional a California statute that made “the ‘status’ of narcotic addiction a criminal offense.”

The Supreme Court explained that the California law was “not one which punishe[d] a person for the use of narcotics, for their purchase, sale or possession or for antisocial or disorderly behavior resulting from their administration.” It punished addiction itself. The court explained that the Eighth Amendment limits the conduct that the government may punish: “Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.”

The 9th Circuit explained that everyone must sleep and concluded that it violates the Eighth Amendment to punish sleeping in public when a person has no place else to sleep.

The court explained: “We hold only that ‘so long as there is a greater number of homeless individuals in [a jurisdiction] than the number of available beds [in shelters],’ the jurisdiction cannot prosecute homeless individuals for ‘involuntarily sitting, lying and sleeping in public.’ … That is, as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”

Johnson v. City of Grants Pass

Grants Pass is a city in Oregon with a population of about 39,000 and a homeless population that may be as many as 600. As the 9th Circuit explained, “the number of homeless persons outnumber the available shelter beds. In other words, homeless persons have nowhere to shelter and sleep in the city other than on the streets or in parks.”

Grants Pass adopted a series of ordinances meant to keep unhoused people from sleeping on public property. One ordinance provides that “No person may sleep on public sidewalks, streets or alleyways at any time as a matter of individual and public safety. No person may sleep in any pedestrian or vehicular entrance to public or private property abutting a public sidewalk.”

Another ordinance prohibited people from occupying a “campsite” on all public property, such as parks, benches or rights of way. The term “campsite” was defined as any location “where bedding, sleeping bag, or other material used for bedding purposes” is placed for temporary living.

As the 9th Circuit observed, “City ordinances preclude homeless persons from using a blanket, a pillow or a cardboard box for protection from the elements while sleeping within the city’s limits.” The ordinances provide for civil fines, exclusion orders from city property for repeat violations, and criminal penalties for violating exclusion orders.

The 9th Circuit, in an opinion by Senior Judge Roslyn O. Silver, concluded: The “city of Grants Pass cannot, consistent with the Eighth Amendment, enforce its anti-camping ordinances against homeless persons for the mere act of sleeping outside with rudimentary protection from the elements or for sleeping in their car at night, when there is no other place in the city for them to go.”

By a vote of 14-13, the 9th Circuit, denied en banc review. Every court of appeals judge appointed by a Democratic president voted against en banc review, while every judge appointed by a Republican president voted in favor of en banc review.

The issues before the Supreme Court

The two sides and the large number of amicus briefs see the issue differently. Grants Pass, in its petition for certiorari and its brief to the court, sees the issue as “whether the enforcement of generally applicable laws regulating camping on public property constitutes ‘cruel and unusual punishment’ prohibited by the Eighth Amendment,” according to SCOTUSblog.

But Gloria Johnson, the respondent in the Supreme Court case, presents the issue to the court whether Grants Pass has violated the Eighth Amendment “by effectively punishing the city’s involuntarily homeless residents for their existence within city limits.”

Grants Pass, in its brief to the Supreme Court, asks it to narrowly construe the cruel and unusual punishment clause and says the Eighth Amendment does not “prescribe which conduct governments may deem unlawful in the first place.” This would be a significant change in the law, as the court said in Ingraham v. Wright that the Eighth Amendment “imposes substantive limits on what can be made criminal and punished as such.”

Although the city’s brief does not expressly ask the court to overrule Robinson v. California, that would certainly be the effect of saying there is no Eighth Amendment limit on what conduct can be punished. Indeed, the city clearly indicates that it wants the court to overrule Robinson when it declares: “The Eighth Amendment does not address whether and when ‘involuntary’ conduct related to status can be punished.”

The city also argues in its brief that it is not punishing a status but rather the conduct of sleeping in public. It says: “this case concerns generally applicable prohibitions against the act of camping on public property—not any status crime.” But as the 9th Circuit concluded, the effect of the Grants Pass ordinance is to make it a crime to be homeless because an unhoused person has no choice but to sleep in public if there are not adequate shelter beds.

Not surprisingly, the city urges that the high court defer to local governments in deciding how to deal with the unhoused. It says: “The 9th Circuit has taken contested questions of social policy away from elected officials and created a paralysis that harms both those living in encampments and the general public.” Many local governments have filed amicus briefs urging deference to their policies.

But Johnson argues that the 9th Circuit’s ruling was narrow. It explains that the court of appeals’ decisions do not “ban the use of tents in public parks,” “limit the amount of bedding type materials allowed per individual,” and pursue other options “to prevent the erection of encampments that cause public health and safety concerns.” The 9th Circuit simply said a city cannot make it a crime to sleep in public if there is nowhere else for the person to sleep.


The city’s decision will be important in determining the meaning of the Eighth Amendment but also in terms of what cities can do about homelessness and for the lives of those who are unhoused.

It is impossible to contemplate this case without thinking of the words of French poet and journalist Anatole France: “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets and to steal their bread.”

See also:

“Supreme Court will consider whether criminalizing homelessness violates Eighth Amendment”

“Does banning camping by homeless people violate Eighth Amendment? Supreme Court agrees to decide”

Erwin Chemerinsky is dean of the University of California at Berkeley School of Law and author of the newly published book A Momentous Year in the Supreme Court. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of The Case Against the Supreme Court; The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman; and Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.

This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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