The decision of the US Supreme Court (‘the Court’) in City of Grants Pass v Johnson allows cities to impose criminal penalties on homeless people for sleeping in public areas, even when there are not enough shelter beds for them. This decision, which overturns the Ninth Circuit Court of Appeals’ decisions in this case and in Martin v. City of Boise, is technically about the nature of the Eighth Amendment’s prohibition against cruel and unusual punishments. But it is also a product of our nation’s ineffective approach to housing more broadly.

US policy has long treated housing as a commodity to be determined by the market, not as a human right. There is no federal law guaranteeing shelter or housing, and only spotty localized attempts at regulating rent costs. The result is an abdication of the government’s role in correcting clear market failures, not just for the provision of emergency shelter but for housing that is affordable to low- and moderate-income people. This is not to say that governments do nothing to combat homelessness and to provide affordable housing, but rather that these efforts are too little, too late, and too reliant on private markets and charitable organizations to be anywhere near as effective as the current housing crisis requires.

The Supreme Court’s opinion describes criminal sanctions as one of many ‘tools’ that cities can use to compel recalcitrant homeless people to accept offers of shelter even as it notes a surprising fact: some cities may provide few or no shelter beds, relying instead on charitable religious organizations to perform the role. Grants Pass, for example, provided zero emergency shelter beds. The beds that were available (just 138 to serve over 600 unhoused individuals) came from Grants Pass Rescue Mission, a faith-based organization that requires residents to attend daily Christian services and to adhere to biblical gender roles. In the Martin case, nonprofit organizations provided all of the emergency shelters in Boise. The fact that some of these shelter programs had religious requirements rendered them, in the Ninth Circuit’s analysis, not ‘practically available’. (Martin, 920 F.3d 584, 609-610 (9th Cir. 2019))

In an environment where cities are already relying on faith-based groups to do much of the heavy lifting, the elimination of the Martin requirement that cities ensure they have appropriate and available shelter before enforcing criminal penalties for sleeping in public only decreases the incentives for cities to step up by providing shelter. Moreover, homeless people may be coerced into a charitable shelter system that imposes religious requirements which would be unacceptable in other contexts.

Part of the Court’s reluctance to require that cities bear the burden to provide shelter beds came from its recognition that the problem of homelessness is much bigger than a lack of emergency shelter, and that something must be done to prevent people from falling into homelessness in the first place. The bigger point, of course, is that our free-market approach to housing is failing more than just the approximately 600,000 homeless people in the US today. Most low-income people are suffering due to a lack of affordable housing. The main government intervention here is the Housing Choice Voucher (HCV) program, which relies heavily on the private market. Voucher holders must locate housing that is priced within a particular rent range (the Fair Market Area Rate set by HUD). They then must find landlords willing to rent to them, which is often an insurmountable challenge. Federal law does not require that landlords accept housing choice vouchers, and only a minority of states and localities have such protections. In locations that do, enforcement is spotty, and the law is routinely flouted. A household that cannot find a landlord willing to rent to them will lose their voucher. Getting clients under lease is a continual challenge for agencies that administer HCVs.

But these difficulties pale in comparison to an even larger problem: only 25% of those who are poor enough to qualify for vouchers actually receive them because of resource constraints. Waiting lists for vouchers often have hundreds of people on them and it may take years for an eligible family to finally receive one. This lack of access can have devastating consequences as it can result in endless eviction cycles, leave women vulnerable to sexual exploitation at the hands of predatory housing providers, force women into unsafe living situations, and eventually lead to homelessness.

The upshot of the Grants Pass case is that the court just took away another incentive for cities to play a more proactive role in providing shelter services. But the broader issue is that the government’s failure to meaningfully invest in shelter and housing, and its reliance on charities and the private market, has been failing the poor and working class for a long time. Laws criminalizing unhoused individuals are the tip of the iceberg.