Thomas Machowicz/AP Photo
Stefon James Dewitt Livengood drinks water in his tent where he lives in Phoenix in July 2023.
Civil rights advocates and government officials have long observed that the degree of civilization in a society can be judged by considering how it treats its most vulnerable.
The United States famously has a singularly inhumane criminal justice and mass incarceration system, when compared to any fairly comparable country. Congress habitually fails to pass comprehensive gun control measures, even after children are brutally gunned down at school. And many state-level gun control measures that were enacted are now being rolled back by federal judges and rulings from the U.S. Supreme Court.
Now, maybe as soon as today, another Court decision will likely give some cities the legal means to continue a shameful war against their poorest residents: those without homes to return to at night.
The Supreme Court is currently considering whether the Eighth Amendment prohibition on “cruel and unusual punishment” bars criminalizing homelessness, via so-called public camping bans that make it illegal to rest or sleep outside, even when there isn’t shelter space available. Generally speaking, current law makes it unconstitutional to criminalize an involuntary conduct or status, like being homeless; and it’s also unlawful to ban things like sitting or sleeping if the ban applies at all times, in all public spaces, and if alternative shelter isn’t reasonably available.
Oral arguments in City of Grants Pass, Oregon v. Johnson that took place this April suggested that the Court’s right-wing majority will likely issue a ruling that does not find it unconstitutionally cruel to fine, jail, and convict poor and unhoused people for sleeping outside. The ruling will almost certainly make it easier for jurisdictions to take a draconian and ineffective criminal law enforcement approach to homelessness, even though the issue is more accurately viewed as a matter of economics, housing policy, and health. Given the Court’s remaining docket, a decision in Grants Pass can be expected within the next two weeks and it could be decided as soon as today.
At the same time, the Justice Department is negotiating with officials in Phoenix, Arizona, deciding whether to formally file a historic class-based discrimination case against the city. The DOJ announced last week that it found that Phoenix engaged in a pattern of biased law enforcement against homeless people. A yearslong investigation showed that the Phoenix Police Department regularly detains and arrests unhoused people without reasonable suspicion of any crime, while also seizing and destroying their property without notice.
“This behavior is not only unlawful, but it conveys a lack of respect for the humanity and dignity of some of the most vulnerable members of our society,” Assistant Attorney General Kristen Clarke of the DOJ’s Civil Rights Division said in a statement on June 13.
The DOJ’s report lays bare the inner workings of the aggressive law enforcement campaigns in response to a nationwide epidemic of homelessness, including deploying police to “clear out” homeless encampments. It’s a stark contrast to the picture that the conservative justices apparently imagine in Grants Pass, Oregon’s public camping ban. The report makes clear that there are multiple constitutional provisions that can apply to prohibit the kinds of broad, forceful sweeps of homeless encampments seen in some cities.
“Regardless of any future Supreme Court ruling, the law” is clear that “officers lack reasonable suspicion to stop people for merely sleeping on public property when they have nowhere else to sleep,” the Justice Department said in its report.
HOMELESSNESS IN THE U.S. REACHED A RECORD HIGH last year, jumping 12 percent from the year before. In January 2023, the Department of Housing and Urban Development’s annual count estimated that as many as 650,000 Americans were living in shelters or temporary housing or sleeping on the streets on any given night. Four out of 10 of those people were experiencing “unsheltered homelessness in places not meant for human habitation.”
More than half of people experiencing homelessness are in urban areas and the nation’s largest cities, with an outsize share in California and New York. California is in a category of its own, accounting for nearly half of the country’s entire unsheltered homeless population. Conversely, New York, which has the nation’s second-highest number of unhoused people, sheltered at least 95 percent of them in 2023.
There is a legitimate crisis here, in short. That said, the root causes are understood, and contrary to overtly cruel public narratives, they have little to do with “prior life choices or the refusal to make future life choices,” as Christian nationalist Justice Samuel Alito put it during oral arguments in April.
“This behavior is not only unlawful, but it conveys a lack of respect for the humanity and dignity of some of the most vulnerable members of our society.”
The spike in homelessness we see today is produced by gentrification and the soaring cost of housing—the “single biggest factor that distinguishes the new homelessness from previous iterations,” according to a 2020 Bloomberg report. Research by the Harvard University Joint Center for Housing Studies has also confirmed that “the most fundamental driver of the nation’s growing homelessness is the ongoing housing affordability crisis.”
The problem is compounded by various developments that have been ongoing since the 1980s, including mass incarceration, the AIDS crisis, lack of access to medical care, and a series of rolling drug addiction epidemics, Bloomberg reported.
Grants Pass, with a population of about 38,000, hasn’t been spared. The number of unhoused people in the city has been growing, and is now up to roughly 600 homeless residents, according to court documents. There, too, the central problems are the same: Grants Pass suffers from a lack of housing following years of under-building, and median monthly rent is roughly $1,000, while the rental vacancy rate is less than 1 percent. To make matters more dire, Grants Pass has no public, low-barrier homeless shelters, Reuters reported in April.
City ordinances prohibit sleeping in any public space while using a blanket or any other “material used for bedding” in order to maintain a “temporary place to live.” The city began aggressively enforcing the laws after holding a community roundtable in 2013 to “identify solutions to current vagrancy problems,” according to meeting minutes, case documents, and NPR affiliate Oregon Public Broadcasting,
During the meeting, city council members and other participants openly discussed a literal exile or banishment option—“driving repeat offenders out of town and leaving them there.” Grants Pass’s public safety director pointed out that police officers had actually bought unhoused people bus tickets out of town, only to have the person returned from the other location. A city councilor made clear that the city's goal should be “to make it uncomfortable enough for [homeless persons] in our city so they will want to move on down the road.”
A group of unhoused people who were later cited and faced prosecution repeatedly for alleged violations of the anti-camping ordinances filed suit and won at every level. Grants Pass ultimately appealed to the Supreme Court. The central question remaining in the case is whether barring people from sleeping in public, even if they don’t have shelter access, amounts to unlawful “cruel and unusual” punishment.
The unhoused individuals argued that by “punishing the acts of resting, sleeping or seeking shelter in public, without providing any legal place for most homeless people to conduct such activities, Grants Pass effectively punishes the status of homelessness,” according to their lawyers at the Oregon Law Center. Police don’t enforce the law against non-homeless people who fall asleep while picnicking or at the beach, Justice Sonia Sotomayor noted during oral arguments.
Jenny Kane/AP Photo
Laura Gutowski, a homeless resident in Grants Pass, Oregon, in March
The city, for its part, conceded that sleeping might indeed be involuntary conduct, but argued—in all seriousness—“that homeless persons can choose to sleep without bedding materials and therefore can be prosecuted for sleeping with bedding,” according to a lower court’s opinion in the case.
In California v. Robinson (1962), the Supreme Court ruled that criminalizing pure status, like being “addicted to the use of narcotics” or having a disease or being homeless, violates the cruel and unusual punishment clause because it subjects people to conviction and jail even without any wrongful conduct on their part. It later expanded that ruling to cover involuntary conduct.
The district court that heard the Grants Pass case in 2020 applied those precedents and concluded that the city’s ordinances and enforcement are unconstitutional because they punish people for conduct that’s an unavoidable consequence of their status—being homeless. The Ninth Circuit Court of Appeals later upheld the decision twice, before the city went to the justices.
Incidentally, Phoenix has also been ordered by a federal district court to stop enforcing anti-camping laws that penalized sitting, standing, or sleeping on public property, based on the same precedents, the Justice Department noted in its recent report.
Unlike the lower courts, the conservative justices were all skeptical of the notion that it would be disproportionate punishment to jail people, or run them out of town, because the city lacks adequate or affordable housing. Several justices were much more focused on a series of hypotheticals meant to illustrate the “line-drawing problem,” to figure out just which necessary human activities a city may or may not be able to regulate as conduct, versus things more akin to status.
Justice Neil Gorsuch asked whether it might violate the Eighth Amendment to ban people from lighting fires and cooking outside, for example. Justice Amy Coney Barrett wondered whether laws against public urination and defecation, or against stealing food, would then be unconstitutional. And Alito asked how the law might apply if a person declines an available bed at a shelter because “they won’t take my dog,” or refuses to sleep in the home of a family member because “they really hate me and they’re really nasty to me.”
But those issues are all beside the point—either outside the scope of the case and the lower-court rulings, or simply unrealistic. And, current law still allows Grants Pass and other municipalities to impose reasonable restrictions on the timing and other circumstances in which homeless people sleep, as even the lawyers for the plaintiffs acknowledged during oral arguments. They can still enforce ordinances against people who decline available shelter; and they can still ban tents, and enforce laws against littering, public urination, drug use, and, of course, shoplifting, theft, or any other normal criminal offense.
THE JUSTICE DEPARTMENT’S RECENT PHOENIX INVESTIGATION shows that the conservative justices’ analysis in oral arguments totally misses the mark in terms of the real issues in the case.
The historic case shows that Phoenix, which is facing a similar housing and homelessness crisis as much of the rest of the country, took a law enforcement approach to the problem like Grants Pass and many other cities. What resulted was a pattern of unlawful and abusive policing, and routine violations of human dignity.
The unsheltered homeless population in the broader Phoenix area tripled between 2012 and 2022. At the same time, the city made over-policing of unhoused people a central pillar of its enforcement strategy, according to the Justice Department’s report.
Indeed, the practice of stopping, citing, and arresting unhoused people became so widespread that “people who were homeless accounted for over one-third—37%—of all PhxPD misdemeanor arrests and citations” between January 2016 and March 2022, the report indicates. And prior to 2023, the Phoenix police had no policy whatsoever about unhoused people’s property; the city simply seized people’s belongings, without providing any related information, and destroyed them.
The police department would deploy special units, sometimes starting at 5 a.m., and drive block by block through certain areas, warning residents with sirens and loudspeakers that they had to move, and that anything left behind will be considered abandoned. “If you’re looking to downsize, now’s a good time to do it,” officers would announce, according to the DOJ report.
“People who were homeless accounted for over one-third—37%—of all [Phoenix Police Department] misdemeanor arrests and citations” between January 2016 and March 2022.
Officers arrested people waiting outside shelters, and often disbelieved people who said space wasn’t available for them. They threw away birth certificates, insulin, medical paperwork, identification, cellphones, and court documents.
“Many of these stops, citations and arrests were unconstitutional,” the Justice Department wrote. A federal court order has been insufficient to compel the police department to stop those practices, according to the report.
One man whom investigators spoke to said officers threw out his belongings while saying, “You guys are trash, and this is trash.” Another person said that police threw away an urn containing the ashes of a family member.
This also happened in Grants Pass, where an urn containing the remains of a woman’s son was discarded. When asked about the urn, Grants Pass police chief Warren Hensman further maligned the homeless, saying that his officers would not have discarded the urn if they noticed it, but that it could have been missed “if it was mixed with soiled clothes, hazardous materials, drug paraphernalia etc,” according to a Reuters report in April.
THE ON-THE-GROUND REALITY IN PHOENIX probably looks a lot like what’s happening in other cities around the country. At the very least, the investigation and its findings demonstrate even more clearly the obvious risks of rights violations that go along with policing homelessness and the widespread practice of using law enforcement to clear out encampments.
Yet, in the Grants Pass case that Phoenix officials could use to substantiate their own practices, the justices were apparently more concerned with fanciful hypotheticals that perpetuate the notion that homeless people are a criminal element, and that policing and punishment are a necessary or helpful response.
At some points, though, we got a glimpse of how the justices actually think about the big-picture issues at hand, and about practical enforcement.
Late in the oral arguments, Chief Justice John Roberts interrupted one of the plaintiffs’ lawyers, suddenly blurting out a half-question and half-declaration. “Violating this ordinance means upon being asked to leave you don’t leave,” Roberts said.
That might be how Roberts imagines the ordinance is enforced, or would like it to be. But that view is divorced from the reality in Grants Pass and in Phoenix, not to mention that it simply isn’t what the statute says on its face. Most of us certainly know that a nice middle-class couple having a picnic can probably violate the ordinance by sleeping on bedding in public, and refuse to leave without racking up fines or having their property destroyed.
At a different point, Roberts also commented that “banishment” is “a strange word when you’re talking about something 10 minutes away,” suggesting that he doesn’t think it would be a rights violation to ship homeless people off to a different municipality, so long as it’s nearby (no questions about “line-drawing” there).
Lawyers for the plaintiffs responded that the question is about “whether you could realistically be part of the community where you grew up.” But those kinds of concerns seemed far from the conservative justices’ minds.
The Phoenix report makes clear that choosing law enforcement as the primary response to a homelessness epidemic will almost certainly produce an epidemic of constitutional violations, whether or not the Court decides to uphold the Eight Amendment’s existing prohibitions against criminalizing homelessness and poverty.
