The Supreme Court will soon decide a case that could influence how communities across the country treat people experiencing homelessness.
The highest court in the land is being asked to determine whether a local government can make it a crime for people to involuntarily live outside when adequate shelter is not available.
The case originates in Grants Pass, Oregon, a small community that has taken a hard stance on homelessness, ticketing and fining people for sleeping outdoors. Lower courts have ruled that criminally punishing unhoused people under the town’s laws violates the Eighth Amendment if there are no other appropriate places for people to sleep.
“These precedents are based on the prohibition in the Eighth Amendment of the U.S. Constitution, against ‘cruel and unusual punishment,’” explains Steve Berg, chief policy officer at the National Alliance to End Homelessness. “The local officials in Grants Pass and elsewhere seek the ability to arrest and jail unsheltered people. In Grants Pass, the specific charge was ‘camping,’ which police interpreted as sleeping with a blanket, pillow, or even a sheet of cardboard to lie on.”
Now, the Supreme Court is reviewing the earlier decisions and will make its determination in what is considered to be the most important legal case about homelessness in decades. A ruling is expected in the next two months, according to reports.
“The main thrust of the case is whether or not jurisdictions should be allowed to cite or arrest people for sleeping outside,” says Samantha Batko, senior fellow in the Metropolitan Housing and Communities Policy Center at the Urban Institute, noting that the central cause of homelessness is a lack of affordable housing. “We would not be in the position of needing to arrest people for experiencing homelessness if people were not experiencing homelessness. The cause of homelessness is that lack of affordable housing.”
The National Low Income Housing Coalition estimates the United States has a shortage of 7.3 million homes that are affordable and available to renters with extremely low incomes. Oregon lacks more than 138,000 units for these renters.
“The case itself is determining whether communities can make it a crime to sleep outside if no shelter is available,” Berg says. “But what it is telling us, more broadly, is this country is suffering from decades of underproduction and preserving of affordable housing and the demand for housing cannot keep up with the need. As incomes are not keeping up with the cost of living, more people are falling into homelessness for the first time in their lives.”
The fear is that if the Supreme Court sides with Grants Pass, it could trigger more municipalities to criminalize homelessness. If that happens, where would people who are unhoused go?
Housing advocates stress that fining or arresting people fails to solve homelessness and only makes the situation worse for people who are unhoused. Instead, studies have shown that providing housing saves taxpayers’ money by reducing jail, court, and emergency room expenses.
While the case says a lot about the lack of affordable housing in the country, could it also affect affordable housing development going forward? If the court stands with Grants Pass, there could be at least a temporary increase in the use of citations and arrests to try to manage homelessness.
“That diversion of resources locally into an ineffective solution may result in less investment in other areas in a community, which could indirectly affect affordable housing,” Batko says. “However, regardless of how the Supreme Court rules, there is no requirement that jurisdictions go the route of criminalization.”
The Grants Pass v. Johnson case itself won’t have a direct impact on development, but the hope is communities will focus on the evidence-based strategies and solutions to end homelessness instead of ticketing and arresting for sleeping outside, according to Berg.
“And what the evidence shows us is housing and services are what ends homelessness,” he says. “To do that, communities will need to invest in short-term strategies to keep people safe in the immediate, while long-term solutions, like housing, are being built.”
