Homelessness continues to disproportionately affect the most vulnerable and disadvantaged populations in the US and across the world. However, there is a discernible change in judicial opinion in the US toward homelessness, which supports the indirect criminalisation of homelessness. Justice Sotomayor’s dissenting opinion in the recent Supreme Court of the United States decision, City of Grants Pass, Oregon v Johnson et al, 603 US (2024) affirmed this.

The Court in City of Grants Pass held that the enforcement of public laws regulating camping on public property does not constitute ‘cruel and unusual punishment’ prohibited by the Eighth Amendment [15]-[35]. The city had passed ordinances that prohibited camping on public property and parking overnight in the city’s parks, imposing fines and imprisonment on violators. Johnson et al argued that the city’s laws violate the Eighth Amendment because they criminalise homelessness and punish individuals for their involuntary circumstances. They foregrounded their arguments by referencing Martin v Boise, which held that cities cannot enforce anti-camping ordinances against homeless individuals when there is no alternative shelter [21]-[24].

In his majority opinion, Justice Gorsuch reversed Martin and held that the Eighth Amendment is designed to protect against unusual or excessively severe punishments, but it does not regulate what laws a state may enact or how it may secure a conviction. It was held that the city’s laws do not criminalise homelessness but rather prohibit certain actions that are subject to regulation by the state [20]-[21]. The Court further held that Robinson v California, by preventing California from making ‘the “status” of narcotic addiction a criminal offense’, did not mean to cast doubt on the states’ ‘broad power’ to prohibit behaviour even by those who suffer from addiction [18]. The Court rejected that the city’s laws punished individuals for their involuntary circumstances [23]. The Court cited Powell v Texas, which held that an individual’s status as an alcoholic did not excuse him from criminal liability for public intoxication [25]. Similarly, the Court held that an individual’s status as homeless does not excuse him from criminal liability for his conduct.

It was further held that Martin had created uncertainty and diminished the role of elected representatives in addressing complex social problems like homelessness [29]-[30]. Federal judges are not well-equipped to dictate how homelessness should be addressed [33]-[35]. In a concurring opinion, Justice Thomas argued that the Eighth Amendment should be interpreted more narrowly. He criticised Robinson for not analysing the text or history of the Eighth Amendment, holding that Courts should adhere to the fixed meaning rather than rely on evolving standards of decency [1]-[4].

However, in her dissenting opinion, Justice Sotomayor argued that the majority’s decision would make it harder for cities to address homelessness and would further exacerbate it [24]-[25]. She noted that the majority’s approach is overly narrow and ignores the underlying social and economic factors contributing to homelessness [6]-[7]. She further explained that homelessness is a complex and interconnected issue caused by factors such as stagnant wages, lack of affordable housing, domestic violence, etc [1]. She highlighted the devastating consequences of criminalising homelessness, including the loss of personal belongings, employment opportunities, and access to services and benefits [3]-[7].

Justice Sotomayor therefore held that the city’s laws violated the Eight Amendment by punishing people for sleeping in public spaces, including in cars, with as little as a blanket or rolled-up shirt as a pillow.  She observed that sleeping outside is a biological necessity for many individuals who have no access to shelter [1]. Moreover, many people experiencing homelessness are already vulnerable individuals [30]. She further highlighted several examples of individuals who have been disproportionately affected by the city’s laws [6]-[26]. She observed that instead of addressing the root causes of homelessness, the city punishes people for their situation without providing any meaningful solutions or alternatives [10]-[16]. Justice Sotomayor concluded that the Courts must safeguard the rights of those experiencing homelessness [2].

The majority opinion is a setback for efforts to address homelessness and sends a chilling message to cities across the US, encouraging them to indirectly criminalise homelessness. However, Justice Sotomayor’s dissenting opinion serves as a powerful reminder of the need for a more humane approach to addressing homelessness, acknowledging the role of underlying systemic and structural factors.