On April 22, the Supreme Court will hear oral argument in Johnson v. City of Grants Pass, which presents the question whether the enforcement of generally applicable laws regulating camping on public property constitutes “cruel and unusual punishment” prohibited by the Eighth Amendment. In its ruling below, a divided Ninth Circuit panel held that the district court properly certified a plaintiff class of involuntary homeless persons and that the City of Grants Pass violated the Eighth Amendment when it enforced its anti-camping ordinances against the plaintiffs.
The Solicitor General has just filed an amicus brief that is nominally in support of neither party but that sides in a critical way against cities like Grants Pass. In particular, the SG’s brief maintains that a law that bans sleeping in public “effectively criminalizes the status of homelessness” (emphasis added) when it is “applied to an individual who lacks another place to sleep.” In such instances, it argues, the law contravenes the Court’s precedent in Robinson v. California (1962), which held that the Eighth Amendment’s ban on “cruel and unusual punishments” prohibits the government from punishing individuals based on the status of drug addiction.
The SG’s position strikes me as badly confused. Whatever the merits of the ruling in Robinson, the law at issue in that case actually made it a crime to “be addicted to the use of narcotics.” By contrast, the Grants Pass ordinance makes it unlawful to engage in the conduct of sleeping in public. It prohibits all persons from engaging in such conduct. It does not criminalize the “status of homelessness”; that’s why the SG has to smuggle in the word “effectively.”
The SG’s brief acknowledges that the Grants Pass ordinance is “formally targeted at conduct such as sleeping outdoors.” (Emphasis added.) But it claims that because Robinson would not allow the city to “make it a crime to be homeless,” it “cannot accomplish the same result indirectly through laws that … in practice prohibit residing in the city while homeless.” (Emphasis added.)
If the SG’s claim were correct, that would mean that Robinson would also prohibit applying against drug addicts a general law that forbids the use of drugs. But the SG disclaims that radical extension of Robinson: Robinson “does not bar the imposition of punishment for acts simply because they may be linked to, or caused by, a person’s status.”
The SG’s brief makes various efforts to try to reconcile its position with the extension of Robinson that it rejects. But all of those efforts fail. For example, it argues:
Here, the status is defined by the very behavior being singled out for punishment: As applied to an individual who has nowhere else to sleep, a city ordinance prohibiting sleeping anywhere in public is equivalent to a law making it a crime for homeless individuals to reside in the jurisdiction.
But one could equally well argue with respect to the extension of Robinson:
Here, the status is defined by the very behavior being singled out for punishment: As applied to an individual who is addicted to drugs, a city ordinance prohibiting the use of drugs is equivalent to a law making it a crime to be a drug addict.
The SG’s brief would have you think that it is advancing a consensus position that the United States has consistently adopted across administrations:
For nearly three decades, the United States has taken the position that laws prohibiting sleeping in public at all times and in all places violate the Robinson principle as applied to individuals who have no access to shelter.
But it turns out—surprise, surprise—that the three previous government briefs that it cites are only from the Clinton and Obama administrations.