California can’t keep criminalizing homelessness

In the courts and on the ground, a lot is at stake. 

In 2018, relying on a 1962 Supreme Court case from California holding that the government cannot punish people for their involuntary status, the Ninth Circuit Court of Appeals ruled in Martin v. Boise that punishing homeless people for sleeping outside in the absence of available shelter beds constituted cruel and unusual punishment. Last year, the Ninth Circuit barred enforcement of anti-camping ordinances in Grants Pass that punished people for having basic bedding, such as a blanket, pillow or even cardboard.

Though often mischaracterized, the Ninth Circuit cases neither prohibit enforcement of public health and safety laws, nor do they prevent local officials from addressing issues like encampments.

The Supreme Court declined to hear Boise’s appeal of the Martin case, but last week it took the Grants Pass case after Republican appointees on the Ninth Circuit issued a scathing dissent to the full circuit court’s decision last year not to review the ruling. Homelessness policy creates strange bedfellows, and Gov. Gavin Newsom and city attorneys across California filed briefs asking the nation’s highest court to weigh in.

The Supreme Court has gone out of its way to take Grants Pass, which does not bode well for the protections afforded by the Eighth Amendment or the basic rights and wellbeing of homeless people.

For more than a century, the court has held that the Eighth Amendment “may acquire wider meaning as public opinion becomes enlightened by humane justice.” In 1958, the court said the amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,” which became settled doctrine.

This Supreme Court, however, seems determined to set the clock back by prioritizing history and tradition over evolving standards of decency. In this revisionist reading, articulated most recently in the dissent last week by a Ninth Circuit Trump appointee in a San Francisco case, the “history” of the Eighth Amendment and the long “tradition” of anti-vagrancy laws suggest an original meaning of the Constitution that imposes little or no judicial constraint on laws like those at issue in Martin and Grants Pass.

Newsom and others have sided with this cramped view of the Constitution because they say the courts have tied their hands, but this is disingenuous. The governor and city attorneys are explicitly asking the Supreme Court to permit them to use criminal and civil penalties to punish people because of a collective government failure to provide affordable housing and adequate shelter across the state. 

Critiques of Martin and Grants Pass are also shortsighted. Studies are clear that enforcing these kinds of laws perpetuate homelessness and impose substantial health and material harms on unhoused people.

Overturning Martin and Grants Pass would be a mistake. Since 2018, lower court decisions have actually spurred cities to invest in solutions. Three years ago, Chico officials complained bitterly when a federal court said that providing homeless people access to an asphalt tarmac without a roof, walls, water or electricity was inadequate.

Barely a year later, the city relented and built 177 tiny homes.

Of course, the Supreme Court could affirm the Ninth Circuit’s holding in Grants Pass, sending a message that homeless people are protected by the Constitution like everyone else. The justices could also reverse the circuit court on narrow grounds without undermining many decades of Eighth Amendment cases.

Whatever the outcome, officials across California should not return to criminalizing homelessness or use inhumane shelter options like sweltering asphalt as a cover for failed policies.

Jeffrey Selbin is a law professor at UC Berkeley and co-director of the Policy Advocacy Clinic at the UC Berkeley School of Law. He wrote this for CalMatters.org, a nonprofit, nonpartisan media venture explaining California policies and politics.