Can local governments make it a crime to sleep outside if no inside space is available?

by Clare Pastore

The Conversation

A small city in Oregon with one homeless shelter is enforcing a local anti-camping law. Enforcing it against people sleeping in public using a blanket or any other rudimentary protection against the weather. Enforcing it even if there was nowhere else to go.

By taking up City of Grants Pass v. Johnson, SCOTUS will decide whether it is unconstitutional to punish homeless people for doing in public the things necessary to survive. Things such as sleeping outside, when there is no option to do them in private.

Some Background “Oyez

Grants Pass, Oregon has a population of approximately 38,000. Of the population, somewhere between 50 and 600 persons are unhoused. Whatever the exact number of unhoused persons, it exceeds the number of available shelter beds. Some of those not taken in, sleep on the streets or in parks. Several provisions of the Grants Pass Municipal Code prohibit them from doing so. This includes an “anti-sleeping” ordinance, two “anti-camping” ordinances, a “park exclusion” ordinance, and a “park exclusion appeals” ordinance.

September 2018, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit decided Martin v. City of Boise. Finding “the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.” While the Grants Pass Municipal Code provisions impose only civil penalties, they still can mature into criminal penalties.

A district court certified a class of plaintiffs of involuntarily unhoused persons living in Grants Pass. The court concluded; based on the unavailability of shelter beds, the City’s enforcement of its anti-camping and anti-sleeping ordinances violated the Cruel and Unusual Punishment Clause. A panel of the Ninth Circuit affirmed, and the Ninth Circuit denied rehearing en banc.

Some History

The federal government’s annual “Point-in-Time” homeless count found 653,000 people homeless across the U.S. on a single night in 2023. This being a 12% increase from 2022 and the highest number reported since the counts began in 2007. Of the 653,000 counted, nearly 300,000 were living on the street or in parks, rather than indoors in temporary shelters or safe havens.

The survey also shows that all homelessness is not the same. About 22% of homeless people are deemed chronically homeless, meaning they are without shelter for a year or more. Most experience a temporary or episodic lack of shelter. A 2021 study found that 53% of homeless shelter residents and nearly half of unsheltered people were employed.

Homelessness and Poverty in the U.S. is also not race-neutral. Black Americans represent 13% of the population, comprise 21% of people living in poverty, and 37% of people homelessness.

However, the largest percentage increase in homelessness for any racial group in 2023 was 40% among Asians and Asian-Americans. The largest numerical increase was among people identifying as what the Department of Housing and Urban Development calls “Latin(a)(o)(x),” with nearly 40,000 more homeless in 2023 than in 2022.

Disproportionality this means criminalizing homelessness likewise also has a disparate racial effect. A 2020 study in Austin, Texas, showed Black homeless people were 10 times more likely than white homeless people to be cited by police for camping on public property.

Supreme Court is extremely sympathetic to law enforcement. Even its more conservative members may balk at allowing a city to criminalize inevitable acts by homeless people. Doing so could spark competition among cities to create the most punitive regime in hopes of effectively banishing homeless residents causing them to move to other cities or areas.

The homeless argue broad anti-camping laws inflict overly harsh punishments for “wholly innocent, universally unavoidable behavior.” Punishing people for “simply existing outside without access to shelter” will not reduce this activity.

Supreme Court to hear Grants Pass homeless case Monday: What’s at stake,, Maxine Bernstein