Camping bans found constitutional despite lack of shelters

This article originally appeared in Oklahoma Watch, a nonprofit news organization that produces in-depth and investigative journalism as a public service.

Punishing people experiencing homelessness for sleeping outdoors is not cruel and unusual punishment, even if too few shelter beds are available, the United States Supreme Court said Friday after reviewing City of Grants Pass v. Johnson et al.

The much-anticipated decision came after Oklahoma passed a law this year criminalizing unauthorized camping on public rights-of-way and state-owned land.

Oklahoma’s law will add obstacles to survival for Oklahoma’s estimated 3,800 people experiencing homelessness, especially since the state’s largest cities, Oklahoma City and Tulsa only have enough shelter beds to accommodate about two-thirds of their homeless populations.

In Tulsa, 37% of the 1,427 people documented in the city’s Point-in-Time Count sleep unsheltered on any given night. In Oklahoma City, 26% of the city’s 1,838 population sleep under the stars. Oklahoma’s night shelters are full nearly every night and many cities have no services for people experiencing homelessness.

Previously, The Ninth Circuit Court of Appeals determined in the Grants Pass case that fining and/or imprisoning homeless people when shelters are full amounts to cruel and unusual punishment under the Constitution’s Eighth Amendment.

The Supreme Court decision in the case reverses the Ninth Circuit decision, allowing local control and ordinances in the dozens of American cities and a handful of states that have camping bans.

According to the syllabus attached to the Grants Pass Supreme Court ruling, the Cruel and Unusual Punishment Clause was adopted to ensure the nation would never resort to formerly tolerated punishments now considered cruel. Cruel punishments were those that brought terror, pain, or disgrace to the recipient.

Punishments are considered unusual when they have, since the writing of the clause, fallen out of use.

The Cruel and Unusual Punishment Clause focuses on methods of punishment, not whether a city or state may impose punishment for certain behaviors in the first place.

“The Supreme Court's decision will make life even more dangerous for our neighbors who don't have homes,” said Sen. Julia Kirt, D-Oklahoma City. “And the likely increase in law enforcement encounters may derail the real progress we are making to build trust and connect people with the resources they need to rebuild a thriving life.”

Plaintiffs in Grants Pass v. Johnson et. al. (Gloria Johnson and John Logan who began the class action suit) also pointed to a prior case, Robinson v. California, in which the court held that a person’s status, such as being addicted to a drug, is different from conduct, such as buying that drug. In the Robinson case, the Court determined that the state couldn’t criminalize status but upheld the broad power to prohibit illegal behaviors.

The syllabus states that in Grants Pass, camping bans in unauthorized areas do not criminalize status. Instead, the bans prohibit actions taken by individuals regardless of status.

“It’s really a disappointing outcome,” said Josh Sanders, director of outreach at the Tulsa Day Center. “But I can’t say I didn’t see it coming.”

Sanders referred to the direction the conservative Supreme Court took in its questioning, which veered toward extreme examples, such as whether allowing camping included allowing people to defecate in public.

“We can piece it apart all day but we have to find a solution that works,” Sanders said.

Justice Neil Gorsuch conceded in the 6-3 opinion that some believe camping bans create a revolving door, circulating people experiencing homelessness from the street to the criminal justice system and back to the street.

Gorsuch lists in the opinion some of the problems associated with homeless encampments on public property, including increases in crimes by and against homeless individuals, sexual assaults, coercion to sex work, drug distribution, diseases, and hazardous waste.

Ultimately, Gorsuch wrote, people will disagree over policy approaches and municipalities will experiment with different approaches only to find that a different tactic may work better.

“But in our democracy, that is their right,” Gorsuch said.

Camping bans, however, can effectively ban actions that are involuntary, such as sleep.

Sleep is a biological necessity, not a crime, Justice Sonia Sotomayor wrote in the dissenting opinion.

The status of being homeless is evidenced by the conduct being singled out for punishment – sleeping outside, Sotomayor wrote.

“For someone with no available shelter, the only way to comply with the Ordinances is to leave Grants Pass altogether,” Sotomayor wrote.

The dissent also includes strong words from Sotomayor about the tactics the Grants Pass City Council contemplated to alleviate its problem of homelessness, including creating do-not-serve lists and most unwanted lists, including photographs of homeless people, and handing them out to local service providers.

“The idea was deterrence, not altruism,” Sotomayor wrote.

She noted one city council member suggested the homeless people weren’t hungry enough or cold enough to change their behavior.

Many camping bans enacted this year are based on model legislation from The Cicero Institute, a conservative think tank in Austin, Texas, that promotes camping bans, punitive measures for violations, and government-sanctioned encampments.

“Many people are upset by this decision, which on its face may sound cruel,” Devon Kurtz, public safety policy director at The Cicero Institute, wrote in an email to Oklahoma Watch. “But I implore critics to consider those situations when the authority affirmed by the Supreme Court really matters: a person sleeping outside ahead of a winter storm; people living in or next to an encampment filled with toxic trash that is polluting a waterway; or someone too mentally unwell to accept the help they need.”

Preventing police from taking action in these situations is the crueler option, Kurtz wrote.

The Supreme Court ruling will make laws criminalizing homelessness more prevalent in the United States, said Meghan Mueller, CEO of The Homeless Alliance in Oklahoma City.

“Housing ends homelessness,” Mueller said. “Criminalizing people who are sleeping outside and do not have other options ultimately creates additional barriers to housing. As homeless service providers, we would like to see investments in proven solutions, such as permanent, affordable housing and robust supportive services.”

Oklahoma’s nonprofits plan to continue rallying to end homelessness, Mueller said.

“We believe that everyone deserves the dignity of a place to call home.”

Oklahoma’s camping ban will criminalize unauthorized camping on public right-of-ways and state-owned land such as highway underpasses. Offenders will first be asked to move or agree to be given a ride by a law enforcement officer to a nearby service provider. Should a person refuse, they can be fined up to $50, be charged with a misdemeanor and potentially jailed for up to 15 days.

The state’s camping ban is set to take effect Nov. 1.

This article first appeared on Oklahoma Watch and is republished here under a Creative Commons license.