“Poverty and immorality are not synonymous,” the Supreme Court once observed. 1 A set of laws that would restrict where “the poor and the unpopular” are allowed to exist on public property “merely at the whim of any police officer”2 is bad, the Court said. 3 Such a regime “would provide a convenient tool for ‘harsh and discriminatory enforcement by local taxing officials against particular groups deemed to deserve their displeasure.’”4 Although the Court today may superficially uphold these principles, the practical implications of a recent decision suggest otherwise. Most recently, the Supreme Court, in City of Grants Pass v. Johnson5 held that a municipal ordinance criminalizing homeless people who set up camps on public property does not violate the Eighth Amendment’s cruel and unusual punishment clause.6 The Court’s ruling dramatically weakened, and potentially eroded, the substantive boundaries of criminal laws based on the Eighth Amendment.7 In lieu of the Eighth Amendment, the Court suggested that this vulnerable population should resort to common law criminal defenses and some vague and half-hearted constitutional challenges to protect themselves.8 However, this suggestion implicitly and incorrectly confuses pre-enforcement and post-enforcement challenges. In particular, it ignores that post-enforcement challenges are much weaker practical remedies, and it avoids providing necessary clarification for alternative pre-enforcement claims. Ultimately, the Court’s formulation leaves involuntarily homeless people with less clearly defined rights, opening a path to a future of fines and incarceration that will perpetuate their time in poverty.

More than 600,000 people experience homelessness every day in the United States,9 approximately 600 of whom lived in Grants Pass, Oregon, in 2019.10 In the face of this national crisis, Grants Pass struggled to find ways to alleviate the concerns of its residents.11 Grants Pass responded with three ordinances. The “anti-sleeping ordinance”12 prohibits sleeping “on public sidewalks, streets, or alleys at any time.”13 The “anti-camping ordinance”14 prohibits “camping” on “any sidewalk, street, alley, . . . or any other publicly owned property,” and a “[c]ampsite” is defined as “any place where bedding, sleeping bag, or other material used for sleeping, or any stove or fire is placed . . . for the purpose of maintaining a temporary place of living,” including a vehicle.15 And the third applies the camping ban to Grants Pass parks.16 Fines for violating anti-camping laws start at $295.17 If a person receives two citations in one year, they can be banned from city parks for thirty days.18 A third violation would be criminal trespass,19 punishable by a $1,250 fine and a jail term limited to thirty days.20

In 2018, three longtime Grants Pass residents filed a class-action lawsuit against the city.21 Two plaintiffs, Debra Blake and John Logan, faced housing instability and had been on and off without shelter for a decade; The third, Gloria Johnson, lived full-time in her van. 22 Together, they sued to enjoin the ordinances from taking effect on behalf of herself and a class of people who had been involuntarily homeless in Grants Pass, challenging their constitutionality under the Eighth Amendment. 23

Two key cases served as the basis for their challenge. Just a month earlier, in Martin v. City of Boise, 24 the Ninth Circuit held that a pair of similar anti-camping ordinances were cruel and unusual under the Eighth Amendment when applied against people without access to alternative shelter. 25 Martin, in turn, relied on Robinson v. Martin v. California,26 a 1962 case that held that the Eighth Amendment prevents criminalizing someone based on their status (in this case, a narcotics addiction).27 Applying Robinson,28 the Martin court held that sleeping outdoors was an “inevitable consequence” of a person’s status as involuntarily homeless and struck down anti-camping laws.29 Given the factual similarity, the Grants Pass plaintiffs argued that these precedents made the city’s ordinances unconstitutional.30 A class action lawsuit was certified.31

The district court granted summary judgment in part and an injunction in favor of the plaintiffs.32 Finding Martin to be acting with restraint, the court found the ordinances to be cruel and unusual based on the unavailability of shelter beds.33 It also held that the ordinances violated the Excessive Fines Clause of the Eighth Amendment: the fees were punitive and “grossly disproportionate to the gravity of the offense”34 of “engaging in the inevitable, biological, and vital acts of sleeping and resting while also attempting to keep warm and dry.”35 The subsequent injunction struck down portions of the laws, while preserving important regulatory powers for the city.36 The court ordered that Grants Pass could establish time and place restrictions for when unsheltered people involuntarily “may use their belongings to keep themselves warm and dry”; tents could be banned as long as sleeping material was not prohibited; and the city could “enforce laws that actually promote public health and safety,” such as those related to violence, harassment, or public urination or defecation.37 The city appealed.38

The Ninth Circuit largely upheld the ruling.39 Following closely behind Martin, the appeals court agreed with the district court that criminalizing the homeless involuntarily violated the Eighth Amendment.40 It opted not to address “the potential excessiveness of the fines.”41 The court then remanded the case to the district court, requiring it “to craft a more stringent injunction that recognizes plaintiffs’ limited right to protection from the elements as well as limitations when a shelter bed is available.”42 Meanwhile, Ms. Blake died; Ms. Johnson and Mr. Logan became the sole representatives of the class.43 A contentious petition for en banc reconsideration failed.44 The city then appealed to the Supreme Court, which granted certiorari.45

The Court reversed and remanded the case.46 Writing for the majority, Justice Gorsuch first opined at length on the homeless crisis facing the United States and the predicament faced by local governments and states,47 citing several amicus briefs written by local officials to suggest the severity of the problem and the need to regulate this behavior through criminal laws.48 After exploring the practical benefits of upholding the ordinances, the Court then turned to the doctrine, specifically Robinson.49 After lengthy reflection that Robinson was a “surprising” interpretation that the Eighth Amendment could not sustain, the Court determined that Robinson was irrelevant to the ordinances at issue.50 The Court argued that while Robinson prohibited 51 Thus, Robinson was not relevant. 52

The Court then declined to apply Robinson to cases where the application effectively criminalized status,53 arguing that Powell v. Texas54 precluded such a reading. In Powell, the plurality held that Robinson did not prohibit a law criminalizing public intoxication; it was the act of being drunk in public, not the “mere status” of alcohol addiction, that was the target of the law, even if, as the plaintiffs argued, the law did indeed criminalize status. 55 For the majority, the same was true of the Grants Pass ordinances. 56 For the Court, this made political sense, too: such an application of Robinson would chill a “‘productive’ democratic dialogue” of local government innovations to address homelessness and instead place this power in the hands of unelected judges. 57 Martin illustrated this point; the Court expressed concern about the calculations judges would have to make to determine who were “involuntarily” homeless.58 Preferring “experimentation” with municipal laws to the Ninth Circuit’s “Martin experiment” and the difficult “approximate arithmetic” it required, the Court reversed Martin.59

In rejecting Robinson as moot and Martin as erroneous, the Court found no reason to consider the Grants Pass ordinances cruel or unusual. 60 Under a historical analysis of the punishment imposed, the ordinances were neither cruel, because they did not “superimpose” “terror, pain, or disgrace,” 61 nor unusual because fines are fairly common punishments. 62 Finally, the Court offered that if people do indeed unintentionally violate these ordinances, there are still “the legion of protections our society affords an individual presumed free from a criminal conviction,” citing such post-enforcement protections as necessity, “insanity, diminished capacity, and duress defenses.” 63 Still, other avenues such as “limits on state prosecutorial power, the promise of fair notice of and equal treatment under the laws, the prohibition of selective prosecutions, and much more”64 might provide opportunities to restrict these ordinances, but not the Eighth Amendment as most interpret it.

Justice Thomas agreed. 65 In a brief aside, he praised the Court’s focus on Eighth Amendment inquiry over sentencing alone. 66 He then argued that the substantive limits of Robinson, and other similar Eighth Amendment cases, injected too much “modern public opinion” into the analysis. 67 Enforcing these laws against the involuntarily homeless through civil fines and exclusion orders was not suitable for Eighth Amendment analysis in the first place, in his view. 68

Justice Sotomayor, joined by Justices Kagan and Jackson, dissented. 69 Robinson, the dissent argued, cleanly resolved this case. 70 Contrary to the majority’s political concerns, the dissent found that the Martin-based injunctions issued by the Ninth Circuit were limited; cities could use their police powers and regulate encampments while respecting the Robinson grant. 71 But the majority complicated the issue; It exaggerated the difficulties of enforcing Martin, “faced a straw man [of Powell],”72 and painted local governments as monolithically in favor of these ordinances, all of which wrongly alienated them from Robinson.73 To mitigate the impact on advocates for the involuntarily homeless, the dissent listed potentially viable pre-enforcement challenges that remained intact, including challenges under the Excessive Fines Clause (as argued below), due process, vagueness, and banishment.74 The dissent concluded by chastising the Court for “abdicating” “its role in safeguarding constitutional liberties for the most vulnerable among us” by subjecting the involuntarily homeless in Grants Pass to the enforcement of these ordinances.75

While it expressed sympathy for the plight facing the involuntarily homeless, the Court’s reasoning, both practically and doctrinally, obscured the Court’s arguments for the “unfairness” of the law. the great harm its decision imposes. After dismissing Robinson as unenforceable and finding that the Eighth Amendment does not prohibit these laws, the majority implied that homeless people should not be overly concerned by this decision since they still have access to a plethora of post-enforcement defenses. 76 But this approach contains two interconnected flaws. First, it ignores critical differences between pre-enforcement remedies and post-enforcement defenses, notably that the latter are worse for the involuntarily homeless. Second, by focusing on the post-enforcement remedies that are still available, the Court created political cover that allowed it to sidestep critical doctrinal issues for the pre-enforcement options that remain for homeless people. In essence, while the Court may express sympathy for the homeless, its approach appears to leave this population without an effective remedy before or after anti-camping laws are enforced.

The Court’s errors began with its neglect of the differences between post-enforcement defenses (substantive criminal law defenses raised in the context of a criminal proceeding) and pre-enforcement challenges (constitutional challenges to a statute). Specifically, it ignored that post-enforcement defenses are often far worse for vulnerable populations; This is because much of the harm is in the enforcement itself. 77 Laws like Grants Pass force people with no other shelter available to them into more dangerous environments, such as highways and railroad tracks or abandoned and dangerous industrial sites, which increase the risk of physical harm. 78 Fines and fees further impoverish the involuntarily homeless, which can perversely impede their ability to escape homelessness. 79 Receiving a criminal charge also affects their ability to obtain employment, housing, social services, and bail. 80 And even to claim these post-enforcement rights, homeless people need to secure legal representation, which in itself poses logistical hurdles. 81

Post-enforcement defenses also have a low likelihood of success. The Court foreshadowed that “legions of protections” would be available to people who became involuntarily homeless. 82 But even its earlier language betrayed this promise, with the Court acknowledging that only “some jurisdictions” have necessity defenses for “certain criminal charges.”83 However, necessity does not generally extend to these cases; in fact, several states reject the defense in cases of economic necessity, such as homelessness. 84 Even more troubling is the defense’s success rate: “The history of the necessity defense in American criminal law indicates that whatever the scenario…and whatever the context…the answer of the law has generally been the same: no.”85 The same rings true for other enumerated defenses. The insanity defense is notoriously fact-intensive, difficult to prove, and rarely successful. 86 The same is true for duress: “[T]he defense traditionally requires that the offender’s coercive circumstance be another person’s unlawful threats,” making it difficult to adapt to homeless individuals. 87 There is also a dearth of cases representing involuntarily homeless individuals that could act as benchmarks for applying these defenses. 88 Finally, even if a post-execution defense were viable, the costs of representation, record acquisition, and effective expert testimony may be prohibitive for homeless and impoverished individuals. 89 In short: the Court’s implication that the rights of involuntarily homeless individuals would be well protected post-execution is overstated.

Given these difficulties, understanding the landscape of pre-execution challenges outside of the now-unenforceable Eighth Amendment is all the more important for involuntarily homeless individuals. However, the majority’s focus on post-execution defenses makes it easier for the Court to avoid commenting clearly on the other pre-execution challenges analyzed in its opinion. Two specific pre-execution challenges analyzed by the Court—cruel and unusual punishments under the Eighth Amendment and due process claims—exemplify the Court’s vagueness about the path forward.

In many respects, the Eighth Amendment’s cruel and unusual punishment test is uncertain from here on out. Traditionally, the clause has had three possible modes of analysis: (1) whether the sentence imposed by the government itself is cruel and unusual; (2) a proportionality analysis: whether a punishment is “grossly disproportionate to the gravity of the crime”; and (3) Robinson’s substantive limit on criminal statutes.90 The majority’s tirade against Robinson, though dictum, sent a strong signal that the third mode of analysis might be on its way out.91 But there is also a second, more subtle point of uncertainty: the majority reviewed the Grants Pass ordinances under only the first mode of analysis, but not the second.92 This is especially notable given that the Court was presented with an argument, both in Ms. Johnson’s brief and by amici, that the Grants Pass ordinances were cruel and unusual because they were grossly disproportionate.93 While the Court may not have intended this ambiguity, its decision creates uncertainty for proportionality analysis going forward. To be sure, the Court stopped short of accepting Justice Thomas’s view that the Eighth Amendment should apply only to sentencing.94 Nor has the Court recently shown a desire to undo the proportionality analysis.95 But as the dissent implicitly acknowledged, the majority’s lack of a clear statement about the Court’s “firmly entrenched” proportionality analysis leaves room for interpretation.96 For lower courts that share Justice Thomas’s perspective, the majority’s lack of clarity about the proportionality analysis leaves it in a potentially subvertible state.

The majority was also unclear about the due process challenges prior to the application of the post-Grants Pass anti-camping laws. True, no due process issue was raised before the Court;97 but it interestingly spoke at length about the potential success of this lawsuit. Both the majority and the dissent noted that Robinson’s understanding that “[a] day in prison would be… The majority’s argument, which concerns the Robinson ordinance’s lack of historical roots, was popular with the Roberts Court.100 Both the majority and the dissent made inroads into the Robinson ordinance’s lack of historical roots, implying that the same might be true of the Grants Pass ordinances.101 But the Court stopped short of vindicating the right in its entirety.102 This raises the question of why the Court engaged in the analysis at all. If the Court sees itself as “safeguarding constitutional liberties for the most vulnerable,”103 it is unclear why the Court identified a threat to a constitutional liberty and yet chose to leave its safeguard for another day.

Although the Court referenced all of the rights that people who have become involuntarily homeless may have (whether rights to protection before enforcement or rights to relief after enforcement), it neglected to examine the practical and doctrinal remnants of those rights. Advocates may still have some pre-enforcement tools at their disposal to try to keep harm at bay.104 But for now, the Court’s decision leaves this vulnerable population exposed to real harm today.