Supreme Court Rules Bans on Public Camping Do Not Constitute Cruel and Unusual Punishment of the Homeless

The Supreme Court on Friday ruled that barring people from camping in public parks and imposing fines on those who do does not criminalize the status of homelessness and does not amount to cruel and unusual punishment.

The 6-3 decision in Johnson v. Grants Pass authored by Justice Neil Gorsuch reverses a Ninth Circuit ruling and is a win for West Coast governments, assuring that they have the authority to enforce anti-camping laws and to clear sprawling homeless camps from their parks and sidewalks. The ruling comes as unsheltered homelessness has skyrocketed on the West Coast.

But while the ruling affirms that local governments can take action against squalid homeless camps in their communities, it does not say that they must take action. Gorsuch noted that nothing in the ruling prevents cities, counties, and states from “declining to criminalize public camping altogether.”

The court found that the Eighth Amendment’s ban on cruel and unusual punishment is a “poor foundation” for establishing a right for the homeless to sleep outdoors if they have nowhere else to go. The origins of the clause sought to prohibit “barbaric punishments like ‘disemboweling, quartering, public dissection, and burning alive,’ even though those practices had by then ‘fallen into disuse,'” Gorsuch wrote.

Barring people from camping in public parks, and imposing limited fines for first-time offenders with a threat of 30 days in jail for continued offenses does not subject violators to “terror, pain, or disgrace,” the court found. Nor is it unusual, “because similarly limited fines and jail terms have been and remain” common “for punishing criminal offenses throughout the country.”

The ruling also states that public-camping ordinances do not criminalize status. “It makes no difference whether the charged defendant is currently a person experiencing homelessness, 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 ruling states.

The Ninth Circuit’s “experiment” with prohibiting camping bans on the grounds that they subject homeless people to cruel and unusual punishment was “doubtless well intended,” the court found. But federal judges are not in a position to decide what constitutes involuntary homelessness or when a shelter is “practically available.”

“Homelessness is complex. Its causes are many. So may be the public policy responses required to address it,” the opinion states. “A handful of federal judges cannot begin to ‘match’ the collective wisdom the American people possess in deciding ‘how to best handle’ a pressing social question like homelessness.”

Timothy Sandefur, vice president for legal affairs for the conservative Goldwater Institute in Arizona, called the court’s decision “the first step toward a sensible approach to the many problems of homelessness.”

By overturning the Ninth Circuit, “the Supreme Court today enables local communities to find actual solutions for the people who are suffering—and who deserve better than to be forced by the Ninth Circuit’s fiat to live indefinitely in public parks and on sidewalks,” Sandefur said in an emailed statement.

Justice Sonia Sotamayor, in a dissent joined by the court’s two other liberal justices, wrote that the court’s majority is offering the homeless “an impossible choice: Either stay awake or be arrested.” Criminalizing homelessness, she added, “can cause a cascade of harm.”

“It is possible to acknowledge and balance the issues facing local governments, the humanity and dignity of homeless people, and our constitutional principles,” she wrote.

Ed Johnson, legal director for the Oregon Law Center, which represented the homeless plaintiffs in the case, said in an emailed statement that he and his colleagues are “disappointed that a majority of the Court has decided that our Constitution allows a city to punish its homeless residents simply for sleeping outside with a blanket to survive when there is nowhere else for them to go.”

Ultimately, he said, the solution to the nation’s homeless crisis does not rest with the courts.

“That job falls to all of us,” he said. “The solution to our homelessness crisis is more affordable housing.”

Gorsuch wrote that people experiencing homelessness “may be as diverse as the Nation itself.” Some people become homeless due to their economic conditions, rising housing costs, natural disasters, or to escape domestic violence. Some value the freedom of living outdoors. “And still others struggle with drug addiction and mental illness,” the ruling states.

“Communities of all sizes are grappling with how best to address challenges like these,” Gorsuch wrote.

Friday’s ruling in Johnson v. Grants Pass stems from a 2018 legal challenge by homeless advocates who argued that enforcing a public-camping ban and levying fines against homeless residents with nowhere to go was unconstitutional. Grants Pass, a small lower-income city in south Oregon, had hundreds of homeless residents but no secular shelter.

The lawsuit against Grants Pass was filed just weeks after a contentious Ninth Circuit Court of Appeals ruling in Martin v. Boise, which held that enforcing criminal anti-camping restrictions on people who don’t have “access to temporary shelter” violates the Eighth Amendment’s ban on cruel and unusual punishment.

In 2022, the Ninth Circuit ruled 2-1 against Grants Pass, holding that city couldn’t enforce its anti-camping ordinance “against homeless persons for the mere act of sleeping outside with rudimentary protection from the elements, or for sleeping in their car at night, when there is no other place in the City to go.”

Critics have pointed to those two rulings — and confusion over what, exactly, they required — as part of the reason for the explosion in recent years of unsheltered homelessness in the nine Western states in the Ninth’s Circuit’s jurisdiction.

In Grants Pass, homeless residents essentially have had carte blanche to set up camps in the city’s parks, littering the grounds with trash and human waste. Lawyers for the city urged the Supreme Court to act, writing that the “consequences of inaction are dire for those living both in and near encampments: crime, fires, the re-emergence of medieval diseases, environmental harm, and record levels of drug overdoses and deaths on public streets.”

But the problems have spread far beyond Grants Pass.

In San Francisco, Seattle, and Portland, families can no longer walk the streets due to massive homeless camps, a group of state attorneys general wrote in an amicus brief last fall urging the Supreme Court to overturn the Johnson v. Grants Pass ruling.

“The pungent smell of urine and human feces fills the air,” the officials wrote. “Hypodermic needles used for narcotics cover the ground. And rats carrying diseases that were once thought eradicated scurry from encampments to nearby businesses and homes.”

Homeless campers in Medford, Oregon have littered a tributary of the Rogue River with human waste, coolant, and other toxic materials. In Sacramento, homeless people in camps have threatened residents with guns, knives, garden shears, broken bottles, and even a chainsaw, according to a recent lawsuit there.

Last year, a judge in Arizona ordered the city of Phoenix to clear out a massive homeless camp known as the Zone, where the more than 1,000 people living there openly used hard drugs, engaged in prostitution, and assaulted — and even killed — one another. The judge blasted city officials for using the Martin ruling as an excuse to not clear the camp or to enforce other quality-of-life laws there.

But supporters of the Ninth Circuit rulings argued that they were narrow, and the rulings didn’t prohibit cities from regulating homeless camps. Johnson with the Oregon Law Center said politicians and others were using the rulings to deflect blame away from years of failed policies.

“The U.S. Constitution does not allow cities to punish people for having an involuntary status, including the status of being involuntarily homeless,” Johnson said in a January email to National Review.

During oral arguments in April, the court’s liberal judges blasted Grants Pass’s anti-camping law. Justice Elena Kagan called sleeping a “biological necessity,” and said that for the homeless “sleeping in public is kind of like breathing in public.” Justice Sonya Sotomayor said the intent of the law was to remove every homeless person from the city.

“Where are they supposed to sleep?” she said of Grants Pass’s homeless. “Are they supposed to kill themselves not sleeping?

But the court’s conservative justices generally seemed sympathetic to the struggles that city leaders are having with homeless camps in their parks and on their sidewalks. They questioned where the lines should be drawn — if homeless people must be allowed to sleep in public, must they also be allowed to cook and relieve themselves in public, too?

“Why do you think these nine people are the best people to judge and weigh these policy judgments?” Chief Justice John Roberts asked at one point.