Can Homeless Individuals with Mental Illness be Arrested for Sleeping Outdoors?

In City of Grants Pass, Oregon v. Johnson (U.S. 6/28/2024), the U.S. Supreme Court held that enforcement of generally applicable laws regulating camping on public property does not constitute “cruel and unusual punishment” prohibited by the Eighth Amendment. This decision followed the City of Grants Pass’ adoption of an ordinance restricting homeless individuals from camping on public property. The ordinance allowed imposition of fines after the first citation and arrest with the possibility of imprisonment after multiple violations.

Initially, the Ninth Circuit issued an injunction prohibiting enforcement because the city did not have enough shelter beds for homeless individuals. The Ninth Circuit reasoned that the Eighth Amendment’s Cruel and Unusual Punishments Clause bars cities from enforcing public-camping ordinances like these against homeless individuals whenever the number of homeless individuals in a jurisdiction exceeds the number of “practically available” shelter beds.

Writing for the Court, Justice Gorsuch disagreed. Justice Gorsuch acknowledged that homelessness is often beyond the individual’s control and that estimates indicate 78 percent of the unsheltered suffer from mental-health issues, while 75 percent struggle with substance abuse. Justice Gorsuch found that it was immaterial that these individuals had no control over their circumstances; that their situation was involuntary. Citing Powell v. Texas, 392 U.S. 514 (1968), a case where a defendant was convicted under a Texas statute making it a crime to “`get drunk or be found in a state of intoxication in any public place,'” Justice Gorsuch reasoned that the Supreme Court’s holding in Robinson v. California, 370 U.S. 660 (1962) should not be extended to situations such as the one before the Court here “status” was allegedly being criminalized. (Justice Gorsuch did note that some might have been surprised by the outcome in Robinson because the better argument might have been that it violated the due process clause by purportedly making unlawful a “status” rather than the commission of any “volitional act.”). Gorsuch concludes stating that the Eighth Amendment does not protect homeless individuals from being subject to status crimes (which is notable because in Trump v. United States he found that status made some immune from prosecution after committing crimes).

Justice Sotomayor dissented. She wrote that over 600,000 people experience homelessness in America on any given night. 6 in 10 individuals can secure shelter beds, but the other 4 in 10 cannot. People become homeless for many reasons, including some beyond their control. Criminalizing homelessness can cause a destabilizing cascade of harm. “Rather than helping people to regain housing, obtain employment, or access needed treatment and services, criminalization creates a costly revolving door that circulates individuals experiencing homelessness from the street to the criminal justice system and back.” Id., at 6. When a homeless person is arrested or separated from their property, for example, “items frequently destroyed include personal documents needed for accessing jobs, housing, and services such as IDs, driver’s licenses, financial documents, birth certificates, and benefits cards; items required for work such as clothing and uniforms, bicycles, tools, and computers; and irreplaceable mementos.” Police acknowledged that enforcement of these ordinances does not solve any problems. It like a game of whack-a-mole.

Given the complex web of causes, it is unsurprising that the burdens of homelessness fall disproportionately on the most vulnerable in our society. People already in precarious positions with mental and physical health, trauma, or abuse may have nowhere else to go if forced to leave their homes. Veterans, victims of domestic violence, teenagers, and people with disabilities are all at an increased risk of homelessness. For veterans, “those with a history of mental health conditions, including post-traumatic stress disorder (PTSD) . . . are at greater risk of homelessness.” Sotomayor noted that Robinson reasoned “that the criminalization of the “mentally ill, or a leper, or [those] afflicted with a venereal disease” “would doubtless be universally thought to be an infliction of cruel and unusual punishment.” She reasons that criminal punishment without at least some evaluation of the reasons for homelessness is inappropriate.