The Supreme Court wrestled Monday for more than two and a half hours with the question of whether ticketing homeless people is a “cruel and unusual” punishment that violates the Eighth Amendment.
Several of the justices appeared concerned about the prospect of criminalizing homelessness but they also worried about limiting a city’s ability to regulate public health or fire hazards in homeless encampments across the country.
“Sleeping is a biological necessity. It’s sort of like breathing,” said Justice Elena Kagan. “You can say breathing is conduct, too, but presumably you would not think that it’s OK to criminalize breathing in public. And for a homeless person who has no place to go, sleeping in public is kind of like breathing in public.”
Much of the argument focused on whether the “anti-camping” ordinances in Grants Pass, Oregon, prohibited conduct, such as sleeping with bedding in a public space, or the status of being homeless. The city of 38,000 argues that the rules are focused narrowly on conduct but the plaintiffs have argued that enforcement has been targeted at people who are unhoused.
Police regularly ticketed people who were sleeping in parks and other public spaces under those ordinances. Each violation carries a $295 fine, which increases to more than $500 if not paid.
The case is the most significant appeal involving unhoused Americans to reach the Supreme Court in decades, and it’s being closely watched by cities and states across the nation that are wrestling with a sharp increase in homelessness.
On any given night, more than 650,000 people in the United States are experiencing homelessness, according to the US Department of Housing and Urban Development. That number increased 12% from 2022 to 2023.
Chief Justice John Roberts and other members of the court’s conservative majority raised a series of questions that noted the ordinance doesn’t explicitly say anything about prohibiting homelessness – and that defining someone’s status as “homeless” can be tricky because it can change nightly.
“Eating is a basic human function as well that people have to do – just like sleeping,” Roberts said. “If someone is hungry and no one is giving him food, can you prosecute him if he breaks into a store to get something to eat?”
Edwin Kneedler, representing the Biden administration in the case, said that the government could “absolutely” prosecute someone in that situation.
Several members of the court – both conservative and liberal – seemed to wrestle with how to draw the line between status and conduct. That distinction is especially important because a 1962 Supreme Court decision found that a California law that criminalized drug addiction – as opposed to drug possession – amounted to a “cruel and unusual” punishment under the Eighth Amendment because the law was attempting to punish someone’s status.
Several city residents experiencing homelessness sued Grants Pass. The 9th US Circuit Court of Appeals sided with them, holding that it could not “enforce its anticamping ordinances 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 was no other place in the city for them to go.”
Grants Pass officials said the Eighth Amendment’s prohibition on “cruel and unusual” punishment was aimed at torture or hard labor sentences, not tickets.
A decision in the case, City of Grants Pass v. Johnson, is expected by the end of June.
This story has been updated with additional developments.
