Supreme Court Rejects Ridiculous Eighth Amendment Claim Against Public-Camping Ordinance

In a 6-to-3 decision that should have been slam-bang unanimous, the Supreme Court ruled today in City of Grants Pass v. Johnson that a city does not violate the Eighth Amendment’s ban on cruel and unusual punishments when it enforces against homeless individuals its ordinance that bars encampments on public property. Justice Gorsuch wrote the majority opinion. In addition to joining Gorsuch’s opinion, Justice Thomas wrote a concurring opinion. Justice Sotomayor, joined by Justices Kagan and Jackson, dissented.

Here’s my quick effort to present and summarize the key parts of Justice Gorsuch’s excellent opinion:

1. Background: The Ninth Circuit’s 2019 opinion in Martin v. Boise ruled that the Eighth Amendment barred a city from enforcing its public-camping ordinance against homeless individuals who lacked “access to alternative shelter.” After Martin, similar suits proliferated against Western cities within the Ninth Circuit. The mayor of San Francisco tells us that the ruling has severely constrained San Francisco’s ability to address the homelessness crisis. An exceptionally large number of cities and States have filed briefs in this Court reporting experiences like San Francisco’s.

Like many cities, the city of Grants Pass has laws restricting camping in public spaces. An initial offense may trigger a civil fine. Repeat offenses may trigger an order temporarily barring an individual from camping in a public park. Only those who later violate an order like that may face a criminal punishment of up to 30 days in jail and a larger fine.

The district court certified a class action and enjoined the city from enforcing its public-camping laws against the homeless.

2. The Eighth Amendment’s prohibition against “cruel and unusual punishments” has always been considered to be directed at the method or kind of punishment a government may impose for the violation of criminal statutes. The city’s punishments do not qualify as cruel and unusual.

Plaintiffs invoke the Court’s 1962 ruling in Robinson v. California, which held that the Eighth Amendment barred California from enforcing its law making “the ‘status’ of narcotic addiction a criminal offense.” The Court read the Cruel and Unusual Punishments Clause to impose a limit not just on what punishments may follow a criminal conviction but what a State may criminalize to begin with. It was a view unprecedented in the history of the Court before 1962. Nor, in the 62 years since Robinson, has this Court once invoked it as authority to decline the enforcement of any criminal law.

We see no need to reconsider Robinson. Whatever its persuasive force as an interpretation of the Eighth Amendment, it cannot sustain the Ninth Circuit’s course since Martin. Public camping ordinances like those before us are nothing like the law at issue in Robinson. Rather 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.

Plaintiffs invite us to extend Robinson to prohibit the enforcement of laws that don’t proscribe status as such but that proscribe acts, even acts undertaken with some required mental state, the defendant cannot help but undertake. The Court rejected that extension in Powell v. Texas (1968). A Texas statute made it a crime to “get drunk or be found in a state of intoxication in any public place.” Powell argued that his drunkenness was an “involuntary” byproduct of his status as an alcoholic and that Texas’s law effectively criminalized his status as an alcoholic because he could not help but doing as he did. The Court did not agree. This case is no different from Powell.

Justice Thurgood Marshall warned in Powell about the dangers of extending Robinson—in particular, that doing so would effectively compel the Court to define something akin to a new “insanity test in constitutional terms.” Nothing, he said, “could be less fruitful than for this Court” to try to resolve for the Nation profound questions like that under a provision of the Constitution that does not speak to them. Such matters, he reasoned, are generally left to be resolved through “productive” democratic “dialogue” and “experimentation,” not by “freez[ing]” any particular, judicially preferred approach “into a rigid constitutional mold.” The Ninth Circuit’s Martin experiment defied these lessons.