The Fight Continues Against Criminalization of Homelessness

This article is republished from Shelterforce Magazine.

The Supreme Court’s momentous ruling last month in the Grants Pass v. Johnson case removed a key protection for unhoused people, allowing criminalization even when there is no available shelter. While some Democrats condemned the decision, several leaders on the West Coast, where unsheltered homeless encampments are more pronounced, quickly moved to embrace it.

California Gov. Gavin Newsom has issued an order for “hazardous” encampments to be dismantled, and San Francisco Mayor London Breed has declared that she will launch “aggressive” homeless sweeps that could include criminal penalties.

Other local governments across the U.S. have also introduced or passed camping bans that seem to have been motivated by the court’s decision. In Minnesota, several towns have introduced camping bans that can now be enacted without significant legal challenge. Portland, Oregon, began a long-planned sweeping citywide camping ban on July 22. And Des Moines, Iowa, passed a camping ban that includes a $50 fine.

Some cities and states had already passed anti-camping measures before the Supreme Court made its decision. For instance, Escondido, California, passed a new ban shortly before the ruling. And in Kentucky, lawmakers took it a step further by authorizing the use of deadly force on people camping on private property.

This alarming acceleration of threats to unhoused people has pushed homeless advocacy groups to craft a menu of strategies to protect unsheltered residents. This includes developing new model legislation to prevent criminalization and calling for more federal funding to provide affordable housing.

Some advocates believe the ruling may open possibilities to further push governments to revitalize the social safety net whose fraying created the modern homeless crisis. “It may serve as a catalyst for the kind of organizing that has been absent from the sector for the better part of 30 years,” says Donald Whitehead Jr., executive director of the National Coalition for the Homeless, who was once homeless himself. “I see a new level of excitement about grassroots organizing, elevating the voices of people with lived experience and real, real action in the community.”

Advocates also point out that the status quo before June’s momentous Supreme Court decision already offered few protections and coincided with constant criminalization. “Martin v. Boise and the Grants Pass decisions [were] never going to end homelessness on [their] own,” says Eric Tars, senior policy director at the National Homelessness Law Center, though they “provided a way for the smart elected official to get out of the trap that criminalization puts them in.”

Planning ahead

In 2018, the Ninth Circuit Court of Appeals — the federal court covering most of the West Coast states — ruled in Martin v. Boise that jurisdictions could not enforce camping bans if there was insufficient shelter space. The ruling was based on prior Supreme Court interpretations of the Eighth Amendment’s “cruel and unusual punishment” clause; it built on older precedent that held that people could not be punished for involuntary conditions like addiction. Then came a 2018 class action lawsuit against the town of Grants Pass, Oregon, over a law that barred unhoused people from using cardboard boxes, blankets or rudimentary forms of shelter. That case led to a 2022 decision by the Ninth Circuit that only strengthened the Martin ruling.

The Supreme Court’s ruling in Grants Pass v. Johnson allows cities to criminalize those who are homeless. Photo by Mark Horvath, Invisible People. Used with permission

The city of Grants Pass appealed the decision, and the case was taken up by the Supreme Court at the behest of both Republican and Democratic politicians this year. Homeless advocacy groups knew it was possible and even likely that both decisions could be overturned due to the lopsided nature of the conservative court.

Those concerns turned out to be well-founded: The court ruled on June 28 that previous interpretations of the “cruel and unusual punishment” clause don’t apply to homeless people who sleep outdoors. The law was applied evenly to “a backpacker on vacation, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building,” the court ruled. (Neither would need to use a cardboard box as rudimentary shelter, the basis of the Grants Pass case.)

In theory, the Ninth Circuit rulings that were overturned by the Supreme Court offered strong constitutional protections when they were in place. In practice, the status quo before the Supreme Court decision was still one of rampant homeless sweeps and criminalization regardless of available shelter space. Several cities were flouting injunctions intended to keep them from performing homeless sweeps, though leaders in Oregon and California may have resented spending legal resources fighting litigation.

Those jurisdictions are now unshackled from lawsuits and can freely clear homeless encampments, which means some of the most vulnerable residents of society will face fines and arrest. (In Grants Pass, the penalty is up to 30 days of jail time for repeat offenders.) Homeless populations consist of some of the most marginalized members of society: They disproportionately consist of Black, LGBT and elderly populations, and more than half of women experiencing homelessness cite domestic violence as the cause.

Some advocacy organizations prepared for the ruling in advance. The National Homeless Law Center drafted the Gloria Johnson Act, state-level model legislation released shortly after the ruling came down. The model bill eliminates civil and criminal penalties against homeless persons “in the absence of adequate alternative housing and shelter.” It places the burden on the state to prove that there was adequate indoor space if it cites or arrests someone.

The state-level legislation would provide a right to “conduct life sustaining behaviors” on public land, provided it does not “obstruct the normal movement of pedestrian or vehicular traffic in such a manner that creates a hazard to others.” As written, it would supersede any municipal laws that attempt to criminalize homelessness.

Tars, at the National Homelessness Law Center, frames the model legislation as a challenge to Newsom, Breed, and San Francisco attorneys, who all claimed they were opposed to the criminalization of unhoused people but says that the Ninth Circuit’s rulings did not offer “clarity” on when sweeps could happen or what adequate shelter space is.

 “They got some clarity from the Supreme Court saying it didn’t apply at all,” Tars says. “But if they didn’t disagree with the actual premise of [Martin and Grants Pass], the legislation that we’ve provided actually has clarified some of the points that they claim were unclear.”

Tars adds, “I’m not pretending it’s not going to be an uphill battle, but if they agreed with the principle that you shouldn’t be punishing homeless people when there’s literally nowhere else for them to go for doing basic life sustaining activities like sleeping or sheltering themselves, then we’ve got a bill for you.”

Pennsylvania lawmakers prepare

Some lawmakers have already announced their intent to write legislation in line with the law center’s model bill. In early July, a group of Pennsylvania legislators including state Sens. Tim Kearney, Nikil Saval, Vincent Hughes and Amanda Cappelletti declared their intent to soon introduce legislation that would enshrine the protections of the Ninth Circuit rulings that the Supreme Court overturned. A press release from Kearney’s office said the legislation will “seek to guarantee the right to be outside, to incentivize inclusive public space management, and to support local governments in the production of sufficient, appropriate low-barrier housing to accommodate people experiencing homelessness.”

In an interview with Next City/Shelterforce, Saval, who represents parts of Philadelphia County, said that the legislation may rely on the Pennsylvania state constitution’s own “cruel and unusual” clause. “We might be in a position to argue that this contravenes our state constitution,” he said. “You can’t criminalize what would be a life-sustaining behavior.”

Saval elaborated that he wants a bill that expands the rights of homeless people to use public spaces, conduct activities on public land and to solicit money in public, similar to the law center’s model legislation.

As for long-term solutions, he says the state has funds that could be used to address the affordable housing crisis. In a July 2 press conference, Saval also proposed the expansion of eviction prevention funding to provide attorneys to people in legal proceedings.

“We have a huge surplus in the Pennsylvania legislature and we ought to be able to find resources to make significant investments in affordable housing, much more than we have,” Saval told Next City/Shelterforce.

But at least one city in the state, Philadelphia, has regularly been conducting its own encampment clearances, including a sweep of an infamous encampment in the Kensington neighborhood in May. That encampment has been an open-air drug market since at least the 1960s and a reminder that repeated sweeps do little to deter encampments.

Philadelphia Mayor Cherelle Parker hosted a town hall ahead of the May sweep in which she characterized the action in terms of eliminating visual drug use and syringes. The city claimed that four people had accepted drug and alcohol treatment and 55 accepted housing services, but provided no details to ABC News about where that treatment was occurring, and volunteer service providers expressed confusion about where encampment residents had been displaced to.

“Frankly, there’s still a lot of outstanding questions about it, there were reports that behavioral health folks were not at the scene,” Saval says. He says he is opposed to homeless sweeps in general and prefers a “housing first” approach. “It’s not like people just disappear. People tend to lose their belongings. They end up losing their community that they would have found.”

Despite the Kensington sweep, the city’s Office of Homeless Services released a public statement condemning the June 28 Supreme Court decision, declaring, “We firmly believe that a person who is experiencing homelessness and does not have any place but outdoors to sleep should not be classified as a criminal. They are human beings who do not deserve to be criminally punished with fines simply for existing.”

San Francisco

The Supreme Court ruling had an immediate impact in San Francisco, where the Coalition on Homelessness had been party to an ongoing lawsuit resulting in an injunction. The basis for the lawsuit was Martin v. Boise and Grants Pass decisions before they were vacated as well as the Fourth Amendment’s prohibition on unreasonable search and seizure.

The plaintiffs had presented evidence that the city was throwing out peoples’ belongings without bagging or tagging them and that it was performing homeless sweeps when there was no available shelter, contrary to its own rules. In December 2022, the Ninth Circuit ruled that San Francisco could not conduct homeless sweeps until it had adequate shelter. Despite this, the city issued 3,000 citations or arrests during homeless sweeps while it was trying to get the injunction vacated.