Cruelty reigns in encampments, and to an unusual degree; a more civilized society would put up with them less.
Cruelty reigns in encampments, and to an unusual degree; a more civilized society would put up with them less.
T hroughout the West Coast, homeless encampments have led to outbreaks of diseases, such as typhus, that are associated with pre-civilized times. Progressive judges, however, believe that what’s really barbaric are communities’ attempts to regulate homelessness. The Ninth Circuit Court of Appeals, headquartered in California, has ruled that laws against public camping violate the U.S. Constitution’s ban on “cruel and unusual punishments.” Those rulings have paralyzed cities’ ability to address deteriorating street conditions.
But change may be afoot. On April 22, the Supreme Court will hear oral arguments in Grants Pass v. Johnson. Under review is a 2022 Ninth Circuit decision about municipal restrictions on public camping. Many expect that ruling to be reversed, empowering state and local policy-makers to take action against homelessness.
There are multiple ways to express the awesome magnitude of West Coast homelessness. About 120,000 people live unsheltered in California, or half of all street homeless Americans. Some single encampments have been host to hundreds of people, or more than the total homeless populations of midsized cities in flyover America. Before it was cleaned up in 2018, the Santa Ana Riverbed encampment’s sprawling dimensions were captured in a six-minute-long YouTube video shot by a cyclist. Its cleanup produced over 5,000 pounds of hazardous waste and about 14,000 hypodermic needles.
The constitutional case for vagrancy, or against laws against it, was once based on the idea that street life is the good life. In 1972, the landmark Papachristou decision struck down a law in Jacksonville, Fla., that prohibited being someone known for “wandering or strolling around from place to place without any lawful purpose or object.” Justice William O. Douglas, who wrote that decision, was a great admirer of the American anti-conformist.
Progressive judges nowadays are less romantic. They claim that anti-camping regulations like Grants Pass’s are “cruel” because they thwart the unsheltered’s basic right to survive. But that argument is unpersuasive given how dangerous encampment life is. In Los Angeles County, the homeless death count has risen, of late, not only because the overall homeless population has risen but because the mortality rate is up over 50 percent since 2019, thanks to fentanyl. In San Diego County, the local homeless population is 118 times more likely to die of a drug overdose than the non-homeless.
Moreover, the right of the street homeless to, supposedly, survive through living in an encampment conflicts with the right of the non-homeless to thrive. Suzanne Barber is a Grants Pass, Ore., native and self-described “grandmother of five grandchildren that can’t take her kids to the park.” She recently got engaged in local politics, leading an attempt to recall the mayor, out of her outrage over the condition of Grants Pass’s ballfields and other public spaces. She told me, “This is a beautiful town. . . . It’s a great little sleepy town, and all you see is drug addicts walking around. And their crap just thrown out all over the place. . . . I’m paying for all these parks that I can’t use; no one in their right mind would even go to them.”
That a court case involving a small, previously obscure city may decide homelessness law for the nation is representative of how the current crisis has spread. No longer is homelessness associated only with big-city disorder zones such as L.A.’s Skid Row and San Francisco’s Tenderloin. Missoula, Mont., California’s Central Valley, and El Dorado and Nevada counties outside Sacramento all have been dealing with soaring homelessness. Neither urban nor rural communities have responded efficaciously. But all blame the courts. Government officials’ chief criticism of the Ninth Circuit’s ruling in Grants Pass, and a prior decision called Boise v. Martin, is that they are all-or-nothing propositions. Courts force communities to choose between either providing shelter beds for the entire local street population or to give that population free run of all public spaces within their borders.
Investing in shelter is a worthy undertaking but also expensive if the goal is to persuade every last encampment member to come in off the street. That goes especially for cities in California’s famously temperate climates. Grants Pass and Boise would have cities, however small or poor they might be, go about maintaining public order by scaling up a vast array of shelter programs more enticing than camping at the beach or in the park. Tent dwellers have a litany of excuses for turning down shelter offers: I want more privacy; I want shared accommodations for me and my partner; I want to bring in my pet; I don’t want to abide by curfews, sobriety rules, or any other behavioral expectations. San Francisco has estimated that full compliance with the Ninth Circuit’s dictates would force it to devote over one-third of its total budget to homelessness services.
Many officials accept the idea that providing shelter and other alternatives to the streets is the humane thing to do. But they want the authority to implement reasonable “time, place, or manner” restrictions on public camping. In a number of recent instances, lower courts, following what they take to be the Ninth Circuit’s guidelines, have denied localities that authority.
Public-opinion polls routinely show homelessness at or near the top of West Coast residents’ list of concerns. Many prominent Democrats, including Governor Gavin Newsom, are on record as critics of the Ninth Circuit’s jurisprudence. Of course, even if the Supreme Court gives politicians more authority to deal with encampments, that’s no guarantee they’ll use that authority to its fullest potential. Dismantling encampments is no one’s idea of a good time. The process entails charging cops and other city personnel with putting their hands all over the personal possessions of volatile individuals. Encampments’ many public-health hazards pose further risks to cleanup personnel. The labor-intensive nature of cleanups is a problem because California defunded the police. Over the past five years, California has experienced a 40 percent increase in street homelessness, a 50 percent increase in beds in homelessness programs, and about a 3 percent decline in patrol officers. On a per capita basis, police staffing in California is at a three-decade low point.
But make no mistake, as with Oregon’s recent rollback of drug decriminalization, and recent ballot-initiative results in San Francisco, reversing Grants Pass and Boise would represent social progress. The issue is encampment culture itself. One of the lessons that American government is thought to have learned from the old mental-asylum programs is that institutionalizing people long-term serves as poor preparation for normal life on the outside. Similarly, those who live out of tents, for too long, get too used to the encampment way of life. In his 2021 book The Least of Us, Sam Quinones explains that the appeal of encampments consists in the “camaraderie” and “warm embrace of approval for their meth use” that drug users find in them. One former addict he interviewed characterizes encampments as places where, from a user’s perspective, “nobody’s going to look at you weird.” Making meth use less socially acceptable would be a good thing; strengthening public-camping laws would further that aim. We should worry less about the harms associated with citing someone for camping in a park and more about the kinds of victimization to which the street homeless are routinely subjected, such as assault, theft, and rape. Cruelty reigns in encampments, and to an unusual degree; a more civilized society would put up with them less.