By Mia Bracco

Abstract

This Article examines the Supreme Court’s landmark decision in City of Grants Pass v. Johnson1, which fundamentally altered the constitutional framework for municipal regulation of homelessness. Through analysis of the majority and dissenting opinions, this Article explores how the Court’s narrow interpretation of the Eighth Amendment’s Cruel and Unusual Punishments Clause affects local governments’ authority to criminalize sleeping in public spaces.

I. Introduction and Background

The Supreme Court’s recent decision in City of Grants Pass v. Johnson2fundamentally altered the future of policies regarding unhoused people. The city of Grants Pass, Oregon, with an overall population of roughly 38,000 citizens and 600 unhoused,3 has included in its municipal code anti-sleeping ordinances, park exclusion ordinances, and anti-camping ordinances, among others.4 The Ninth Circuit, which oversees nine U.S. states (including California), several territories, and a population of over sixty million people,5 ruled that Grants Pass’ ordinances violated the Eighth Amendment, which prohibits “cruel and unusual punishments.”6

II. The Ninth Circuit’s Initial Ruling

In its three-judge panel decision, the 9th Circuit wrote, “[t]he Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.”7 The municipal code imposed fines on those found in violation, and imprisonment with enough outstanding fines or repeat offenses.8

III. The Supreme Court’s Response

Upon reviewing the case in the 2023-2024 season, SCOTUS overturned the Ninth Circuit ruling in a 6-3 decision.9

A. The Majority Opinion

The majority opinion, written by Justice Neil Gorsuch, opines that “[t]he Constitution’s Eighth Amendment serves many important functions, but it does not authorize federal judges to wrest those rights and responsibilities from the American people and in their place dictate this Nation’s homelessness policy.”10 The Court’s reasoning in this decision emphasized the limited scope of Eighth Amendment protections, focusing specifically on the nature of punishment rather than the criminalization of conduct itself.11

Gorsuch writes that “[t]he Cruel and Unusual Punishments Clause focuses on the question what ‘method or kind of punishment’ a government may impose after a criminal conviction, not on the question whether a government may criminalize particular behavior in the first place or how it may go about securing a conviction for that offense.”12 This interpretation markedly narrows the Eighth Amendment’s application to homelessness cases, focusing solely on the punishment phase rather than the criminalization itself.13

B. The Robinson Precedent and Its Application

Citing Robinson v. California14 as precedent, in which plaintiff Robinson challenged a California law that criminalized the status of being addicted to narcotics, SCOTUS ruled the law as a violation of the Eighth Amendment. Despite this, Gorsuch argues that Grants Pass’ ordinance does not criminalize the status of being homeless, only the act of sleeping on public property.15

In elaborating on this distinction, Gorsuch writes, “[r]ather than criminalize mere status, Grants Pass forbids actions like ‘occupy[ing] a campsite’ on public property ‘for the purpose of maintaining a temporary place to live[.]’ Under the city’s laws, it makes no difference whether the charged defendant is homeless, a backpacker on vacation passing through town, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building.”16 This interpretation effectively grants states and municipalities broader authority in regulating public spaces, even when such regulations disproportionately affect unhoused populations.17

C. The Textualist Approach

Justice Clarence Thomas wrote a concurring opinion, stating, “[s]uffice it to say, we have never endorsed such a broad view of the Cruel and Unusual Punishments Clause. Both this Court and lower courts should be wary of expanding the Clause beyond its text and original meaning.”18

IV. Competing Interpretative Frameworks

Both Justice Thomas and Gorsuch apply the Textualist approach to decision-making in Grants Pass v. Johnson, which analyzes the Constitution verbatim.19 If it is not explicitly mentioned in the original document, they argue, lawmakers are responsible for drafting an amendment or the issue can simply be left to the states.20 Liberal justices, on the other hand, interpret the Constitution loosely to apply its meaning to modern times.21

V. The Dissenting Opinion

The latter framework played into Justice Sotomayor’s dissent, where she argues that this SCOTUS decision would effectively give way for states to create a policy that punishes people for being unhoused.22 Even though Justice Gorsuch explicitly mentioned that the law was not specifically applicable to homeless people, Sotomayor correctly argues that they would ultimately be the most affected group because the premise allows for states to create policies specific to targeting people who live outdoors in public places.23

Sotomayor writes that while it is important to acknowledge the struggles local governments face with such important issues as homelessness, “[t]he majority focuses almost exclusively on the needs of local governments and leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested.”24

VI. Historical Context and Precedent

Citing Furman v. Georgia,25 a case in which the court determined instances where the death penalty constituted “cruel and unusual punishment” under the Eighth Amendment, Sotomayor writes that “[i]t is cruel and unusual to apply any penalty ‘selectively to minorities whose numbers are few, who are outcasts of society, and who are unpopular, but whom society is willing to see suffer though it would not countenance general application of the same penalty across the board.’”26

VII. Implications and Conclusions

The issue of homelessness is nuanced, both Sotomayor and Gorsuch can agree, but ultimately the solution to the problem is unanswerable.27 While Gorsuch’s majority opinion emphasizes governmental autonomy in addressing homelessness, it simultaneously raises concerns about the practical impact on unhoused populations.28

The ruling can be classified as “fair” in an objective sense where the “Cruel and Unusual Punishment” clause only considers the “method of punishment” rather than the existence of a general law.29 However, from a humanitarian lens, it is impossible to ignore the consequences of a rule that will certainly target a specific group of people with unfortunate circumstances.30 A law’s “fairness” does not always imply justice.31

SCOTUS’ ruling only allows state and local governments to impose a penalty for sleeping outdoors.32 The Court’s interpretation clarifies that the Eighth Amendment’s scope is limited to the nature of punishment rather than the criminalization itself.33 Unfortunately, the result is that, while it is not a crime to be homeless, it is a crime to exist without a home.34