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Cruel & Unusual

The Supreme Court Is on the Verge of Criminalizing Homelessness

As the high court deliberates, policymakers are preparing for the possibility that they might solve a problem they created in the most punitive way.

People walk past a homeless encampment near a Target store in Los Angeles, California.
Mario Tama/Getty Images
People walk past a homeless encampment near a Target store in Los Angeles, California.

Since the onset of the Covid-19 pandemic, advocates and policy analysts have warned of a homelessness “tsunami.” It’s the worst-case scenario where the combination of lost income, backlogs of owed rent, and a lack of local government foresight contribute to a surge of people losing housing and ending up on the street. Well, it has arrived—and it’s poised to get much worse as the Supreme Court is set to decide whether to make homelessness a de facto crime.

This past month, many cities and counties conducted their annual point-in-time homelessness counts. The results of January’s counts won’t be known for several more months, but they’re likely to be dire. The end-of-2023 results found that approximately 653,000 people were experiencing homelessness. That’s up more than 70,000 over 2022, or a 12 percent increase. In the 12 months since that data was collected, those numbers have likely gone up.

But the raw numbers are just the tip of the iceberg. As more people end up experiencing homelessness, they’re also facing increasingly punitive and reactionary responses from local governments and their neighbors. Such policies could become legally codified in short order, with the high court having agreed to hear arguments in Grants Pass v. Johnson.

Originally brought in 2018, the case challenged the city of Grants Pass, Oregon, over an ordinance banning camping. Both a federal judge and, later, a panel from the Ninth Circuit Court of Appeals struck the law down, saying that Grants Pass did not have enough available shelter to offer homeless people. As such, the law was deemed to be a violation of the Eighth Amendment.

The ruling backed up the Ninth Circuit’s earlier ruling on the Martin v. City of Boise case, which said that punishing or arresting people for camping in public when there are no available shelter beds to take them to instead constituted a violation of the “cruel and unusual punishment” clause in the Eighth Amendment. That applied to localities in the Ninth Circuit’s area of concern and has led to greater legal scrutiny even as cities and counties push for more punitive and restrictive anti-camping laws. In fact, Grants Pass pushed to get the Supreme Court to hear the case, and several nominally liberal cities and states on the West Coast are backing its argument. If the Supreme Court overturns the previous Grants Pass and Boise rulings, it would open the door for cities, states, and counties to essentially criminalize being unhoused on a massive scale.

If it does so, that will have ramifications for all unhoused people, from those who have been chronically homeless for some time to those currently falling into homelessness. And that last category is a large one: In the time since the January 2023 homeless count, there have been at least 1,076,396 evictions across 10 states and 34 cities, according to Princeton University’s Eviction Lab project, which has tracked data related to evictions through the end of 2023. In December alone, there were more than 69,000 evictions in those monitored areas. According to the data, evictions have almost fully returned to pre-Covid pandemic levels, after federal moratoriums and protections expired.

It’s also becoming harder to pay for housing. The housing market remains tight for anyone looking to buy, and renters are losing options. Inflation has eaten into people’s available income, pandemic-era protections have ended, rents are rising, and data from the Harvard Joint Center for Housing Studies that came out last month showed that renters are spending more—even as the amount of affordable housing available is decreasing.

Nearly 22.4 million households—or half of all renters—can’t afford their rent, according to an accepted standard that paying more than 30 percent of one’s income on rent renders it unaffordable. Without immediate assistance to renters, it’s a situation that will only worsen. Back rent due, as well as new rent increases, is likely to magnify the financial strain that’s already being keenly felt by renters, forcing more people out of their homes, either to depend on friends and family or end up on the streets.

If the Supreme Court sides with Grants Pass, it will effectively undo all of the protections created by the Boise case, which means that the thousands of people currently experiencing homelessness as well as those likely to fall into homelessness in 2024 will face additional challenges in an already traumatic situation. Added legal and financial burdens will only make it harder for them to become rehoused, creating a vicious cycle of escalating misery that will do nothing to actually solve the underlying causes of homelessness.

Grants Pass v. Johnson hasn’t received the same fanfare as many of the other cases before the Supreme Court this term, but perhaps no other case has as much at stake for some of the most vulnerable Americans, who now face the prospect of both additional financial burdens and the possibility of being transformed into a new class of criminal, solely because so many states and municipalities have chosen to wash their hands of a crisis their own policies have created.

Jesse Rabinowitz, the campaign and communications director with the National Homelessness Law Center’s “Housing Not Handcuffs” program (which plans to file an amicus brief in the case prior to oral arguments but has not as of press time) told The New Republic that an arrest record only makes it harder to get a job or find a new apartment to rent—and unpaid fines can lower a credit score, causing more financial hardship.

If the highest court sides with lawmakers that have abandoned the homeless to face more punitive measures for their misfortune, anyone left on the streets could be subject to arrest or other criminal penalties simply for having nowhere else to go, even in instances where local government has fallen through on the provision of adequate shelters. They will either be left to rot in jail or be forced out of the communities they call home.

The biggest obstacle to solving homelessness is the lack of affordable housing. That’s it. Either people are being priced out of homes or those on the streets can’t afford to obtain a permanent home. Thousands of units are either in the approval process or being built, but at the moment there is a nationwide deficit in housing, and construction is not matching pace with the growth of the unhoused population.

“Homelessness is increasing in many communities because rents are sky high and there is a severe shortage of affordable rental homes. More people are just one financial shock away from falling behind on rent and facing evictions and, in worst cases, homelessness,” Sarah Saadian, senior vice president of public policy at the National Low Income Housing Coalition, told The New Republic. “As homelessness has increased, elected officials are under a lot of pressure to take action, but too many of them are turning to misguided, ineffective, and costly approaches, like criminalization, rather than investing in proven solutions.”

This is not some abstract conundrum. In Los Angeles this past month, before and during dangerous storms that found officials urging sheltering in place for safety, police and city agencies were out dismantling encampments. Efforts by local advocates and organizations to help get unhoused people into promised shelters were met with confusion by local government and a lack of actual help, as documented by the group Ktown for All. Prior high-level sweeps, such as at Echo Park Lake in 2020, cleared the park of tents, but despite initial claims by Los Angeles City Council members, only a handful of the nearly 200 people cleared by the lake found temporary shelter, let alone permanent housing. Additionally, representatives with the Los Angeles Homeless Services Authority said such clearances disrupted outreach attempts intended to get people to shelter and temporary housing, undoing trust-building efforts that took time to develop.

And real solutions to homelessness are up against long timelines and limited political will. There are major efforts to build new housing and fund services—the Department of Housing and Urban Development announced $3.16 billion last month for those very issues—but these resources take time to spin up, and they face political challenges along the way. An ambitious plan by New York City Mayor Eric Adams, announced in 2022, shriveled over a year, with several cuts to social services. It’s an initiative that joins other community programs in facing financing and budget issues, all while the mayor pushes increasing money to the already massively funded NYPD. Los Angeles elected a slew of progressive officials in 2022 and passed a mansion tax to fund housing and services, however it will still be some time before any new housing funded by it opens.

Meanwhile the city’s wealthy interests and corporate donors are funding the campaigns of conservative challengers to several progressives this year. If the Grants Pass case ends up allowing widespread criminalization of homelessness, it could lead to major setbacks that could render these projects far less effective.

Even large cities that have committed significant resources to helping unhoused people can’t adequately shelter people. New York, with a right-to-shelter law, still falls short of helping all of the people in need. Los Angeles has initiated several measures—several very good ones, as a matter of fact—to fund housing and services, but new units take time to actually be built, and more reactionary elements in the city government are pushing anti-homeless ordinances of their own.

And shelter, although helpful, is not housing. People in transitional or bridge housing still struggle to find permanent solutions, mainly because there simply isn’t enough affordable housing available. And it’s worth remembering that tens of thousands of people fall into and out of homelessness a year, including many who might experience homelessness for just a brief period of time before safety programs, family, or good fortune help them regain housing stability. Those who fit into this category could find themselves caught up in the criminal justice system for just a few days’ misfortune.

If the Supreme Court does side with criminalizing homelessness, local and state governments could start punishing people very quickly, according to Rabinowitz. “A lot of states have carve-outs that say this policy of criminalization can’t be enacted unless there is adequate shelter,” Rabinowitz said. “I imagine the ‘adequate shelter’ part will go away very quickly if the court rules that way.”

There are even more hostile proposals being dreamt up. In Florida, the state legislature—with the endorsement of Governor Ron DeSantis, fresh off his failed presidential run—is proposing criminalizing homelessness and putting unhoused Floridians in camps. Donald Trump is running on a nationwide version of this same policy. Under his proposal, unhoused people would be sent to “tent cities” on “inexpensive land” (exactly what that means is unclear, but it’s implied to be outside of cities).

Notably, the proposal is missing any real details on getting people out of those camps into actual permanent supportive housing. Trump hasn’t provided any idea of what his indefinite internment plan will cost or how he will pay for it; it goes without saying that it’s impossible to determine whether it would be more cost-effective than simply building more housing. But the former president appears to have retribution, not solutions, on his mind. In his 2023 video, he accused cities of focusing on “the whims of a deeply unwell few,” outright ignoring the root causes of homelessness and the factors that keep people unhoused.

When one considers the draconian ideas being conceived behind closed doors, the implications of any decision in Grants Pass are very real. The mechanisms and political desire to criminalize the homeless already exists, and lawmakers seem to be racing toward drastic and punitive approaches, instead of solutions that might actually ease the crisis. Should the Supreme Court contribute to the momentum of criminalization, it will likely exacerbate the crisis—it certainly will neither contribute to rehousing the homeless nor alleviate the economic conditions that force people out onto the streets. It’s a recipe for shortsighted, “out of sight” policies that will enable officials to pursue the cruelest possible approaches to a problem they helped create.