Involuntary Homelessness

On April 22, the Supreme Court will hear oral arguments for Johnson v. Grants Pass. The basic question is whether laws designed to punish people for being homeless are a violation of the Eighth Amendment’s protection against cruel and unusual punishment.

The plaintiffs’ case is built on precedent set by a similar case in 2018, Martin v. Boise, which established that it was unconstitutional to prevent people from sleeping on public property when there are no other shelter options available to them.

In the original Johnson v. Grants Pass decision, a class of “involuntary homeless” was established and certified to have legal standing to sue the city. Throughout the appeals process, the city has argued (and found support in dissenting opinions from the Ninth Circuit) that establishing such a class is an example of judicial activism, and that upholding Eighth Amendment protections requires individual inquiry to determine whether a person is actually involuntarily homeless or if they are choosing to live on the street.

Essentially, the city would like the ability to arrest or fine people first, after which those punishments can be challenged in court on a case-by-case basis. In addition to violating the presumption of innocence, this vision of justice absurdly relies on the implausible notion that people who don’t even have access to shelter can secure legal representation to challenge their arrests and fines.

There’s another problem with the city’s argument about the need to investigate potential voluntary homelessness before applying Eighth Amendment protections: Grants Pass has extremely limited options available for its unhoused population. Its provisions are so nonexistent that all people experiencing homelessness in the city are doing so involuntarily.

Jesse Rabinowitz, who works for the National Homelessness Law Center, a homeless advocacy group that is representing the plaintiffs in the case, spoke to Jacobin about the state of housing in Grants Pass. “The population has doubled in the past few decades, but the housing supply has not kept pace,” Rabinowitz said. “There’s only a 1 percent vacancy rate, and 50 percent of renter households pay more than they can reasonably afford to pay on rent.”

A point-in-time (PIT) count conducted by the United Community Action Network (UCAN) on January 30, 2019, identified 602 people living without housing in Grants Pass. An additional 1,045 people were identified as “precariously housed.” Notably PIT counts are commonly understood to be undercounts of the actual number of unhoused people.

Options for temporary shelter in Grants Pass are virtually nonexistent. A youth shelter provides seventeen beds for unhoused minors, but only for seventy-two hours. UCAN at one point operated a warming center on cold nights that could accommodate forty people but did not provide beds and only offered this service for sixteen nights between February and March of 2021. The city itself opened a “sobering center,” essentially a drunk tank with twelve locked rooms which had toilets but no beds.

Grants Pass only has one operation offering meaningful shelter for unhoused people: the Gospel Rescue Mission (GRM), which provides sixty beds for women and women with children and seventy-five beds for men without children — drastically less than what would be required to meet the needs of the city’s homeless.

At the time Johnson v. Grants Pass was being litigated in 2019, GRM’s executive director, Brian Bouteller, claimed that they had thirty open beds the previous year. Bouteller believes that vacancies at his shelter indicate the existence of voluntary homeless people, as he noted in an interview with the local news station KTVL:

The issue has less to do with how many beds we have, versus who wants to leave homelessness behind. A lot of homeless people are comfortable sleeping in the bushes. They want to be left alone and do things their own way, and not fall into societal norms and not live according to any kind of standards.

In that quote, Bouteller doesn’t elaborate on the specific nature of the standards and societal norms that the unhoused in Grants Pass are refusing as a condition of housing. However, GRM has a list of twenty-nine rules that residents must abide by in order to get a bed. These include a prohibition on nicotine consumption, a requirement to perform labor at the shelter for six hours a day/six days a week in return for a thirty-day stay (during which they are not allowed to look for work outside the shelter), and dressing in a manner that conforms with their sex at birth. Meanwhile, disabled persons with chronic medical and mental health issues are prohibited from seeking shelter. Also ineligible for shelter are unaccompanied minors or adult men with children. Residents are allowed to stay longer than thirty days; however, they must pay $100 a month per adult and $50 a month per child for food.

Whether GRM’s restrictions on things like cigarettes or gender expression constitute a reasonable barrier for people seeking shelter is a bit of a moot point. GRM requires residents to attend shelter-approved religious services that deliver “traditional Christian teachings such as the Apostles Creed,” and avoids taking state funds in order to maintain their strict Christian societal norms. On that basis alone, the only real option for homeless residents in Grants Pass does not meet Department of Housing and Urban Development (HUD) standards for a certified emergency shelter.

The Cruelty Is the Point

The notion that there is some unknown but significant number of unhoused people who are actively deciding to be without a home is a fig leaf for failed policy. Nonetheless it has many true believers and is pervasive enough to poison the discourse around America’s housing crisis. As Bouteller told Oregon Public Radio:

Getting them off the streets would be one goal. Getting them into independence is our goal. . . . And for them to become independent requires something different than what it might be just to simply get them off the streets.

Despite the growing body of evidence showing that getting someone off the streets and independence are not mutually exclusive goals — and, as successful “housing-first” policies show, are often one and the same — this conception of homelessness as a product of personal failure is still widely held. Viewing homelessness as a choice allows cities like Grants Pass to justify a punitive approach.

At the time of the initial lawsuit, Blake had amassed over $5,000 in fines and court fees from tickets and arrests for violating Grants Pass laws against camping and sleeping in public. The fines range in amount from $75 for sleeping to $295 for camping and can go even higher with penalties for unpaid fines. The city’s laws are very broad in how they define camping, criminalizing the possession of items like blankets, pillows, and even cardboard that would allow someone a small measure of protection from the elements when sleeping outdoors.

Court filings document that in 2013, the city council hosted a roundtable meeting to “identify solutions to current vagrancy problems.” The minutes from this meeting are particularly damning to the city’s defense against violating the Eighth Amendment. The city council president at the time, Lily Morgan, was quoted as saying, “The point is to make it uncomfortable enough for them in our city so they will want to move on down the road.”

Potential solutions from that meeting included increasing police presence in the downtown area, exclusion zones in collaboration with private property owners that would facilitate indiscriminate trespassing rules, deciding how many misdemeanors would lead to prosecution, and banning food assistance to unhoused people in public parks, among other actions that would serve to ostracize and remove unhoused people. The targeted enforcement of illegal camping was one particular action item that made its way to codified law.

It would seem particularly clear that the city intended to, at the very least, skirt the bounds of Eighth Amendment protections in order to clear the streets of its homeless population. The dissenting opinion in the Ninth Circuit decision attempts to justify this by asserting that court’s ruling has the effect of “paralyzing local communities from addressing the pressing issue of homelessness, and seizing policymaking authority that the federal system of government leaves to the democratic process.”

Addressing the Pressing Issue of Homelessness

Homelessness has increased sharply over the last few years due to the end of pandemic relief measures and rising rents. This is a national problem affecting both dense urban cities and rural areas. President Joe Biden has made several promises to address the affordable housing crisis and launched several initiatives to that effect, but advocates for people experiencing homelessness say that these measures do not go far enough.

Most people agree that homelessness is a problem in America. The disconnect comes when attempting to identify the specific nature of that problem. For cities like Grants Pass, the problem is primarily an issue for the interests of property owners. A visible homeless population drives down property values while scaring away investment and tourism. This conception is dehumanizing, treating people looking for a place to sleep at night like an infestation to be managed and removed.

This capital-centering view doesn’t only justify the punitive approach that Grants Pass has taken in hopes of driving homeless people away from the city — it also severely restricts the ability to imagine solutions outside of force. This lack of imagination becomes apparent in the Ninth Circuit dissenting opinion:

Local governments are hard-pressed to find any way to regulate the adverse health and safety effects of homeless encampments without running afoul of this court’s case law — or, at a minimum, being saddled with litigation costs.

“Hard-pressed” is a bit of an overstatement here, as there are other ways to mitigate the environmental, sanitary, health, and safety concerns that arise with homeless encampments that don’t involve violently removing them and arresting and fining them to keep them out. Several cities have experimented with providing trash pickup and portable bathrooms to encampments. These services are often combined with medical help, addiction counseling, and social services outreach that meets homeless people where they are, building trust and ultimately helping them transition from camps to stable housing.

Policies oriented toward making life easier for homeless people often meet reactionary pushback from those who say that providing services would only attract more homeless people. This again is a subtle way of likening people experiencing homelessness to an issue of pest control, a warning to not leave crumbs of dignity on the counter lest they attract unwanted visitors.

Cities around the country are beginning to look for methods beyond criminalization and civil penalties to address the problem of homelessness, precisely because strategies like what Grants Pass wants to implement only serve to exacerbate the real problem of homelessness. Unpayable fines affect credit scores and the ability to get an apartment (when affordable apartments are available), and criminal records make it harder for people to gain employment.

Rabinowitz summed up this paradox by telling Jacobin, “These cities are not having a homelessness crisis because they don’t have enough ways to punish. They’re having a homelessness crisis because there’s not enough housing.”

He went on to talk about a situation similar to Grants Pass where courts forced a city to address homelessness with nonpunitive means, and a positive outcome followed:

I actually think there’s a really strong example in Miami of what a different approach would look like. Miami was under a consent decree which basically said, If there’s not enough shelter and there’s enough housing, you can’t use criminalization. So the criminalization tool was taken out of the toolbox and Miami responded to homelessness with shelters and housing, and they reduced homelessness by half.

A Supreme Court decision in favor of Johnson could force Grants Pass and other cities to take similar housing-first measures. In the long term, limiting cities’ ability to clear away the human externalities caused by the profit seeking of developers and landlords could potentially push the federal government toward increasing and revitalizing public housing.

Rabinowitz believes that Johnson and Logan can win their case against the city of Grants Pass. No matter the consequences of a decision in favor of the plaintiffs, he believes this particular case comes down to a matter of equal protection under the Constitution:

Does the Constitution protect people experiencing homelessness or not? And the fact that that is even a question is a damning indictment on the way we think about homelessness in the country. But that’s where we are.