In City of Grants Pass, Oregon v. Johnson, the Supreme Court recently held that a municipality may impose civil penalties, exclusion orders, and criminal fines against persons who sleep or camp on public property, even though those people otherwise have no place to sleep. The case originated as a class action alleging that the city of Grants Pass, Oregon’s restrictions on encampment on public property violated the Eighth Amendment of the federal Constitution. Specifically, Grants Pass adopted three ordinances that in effect made it unlawful to sleep anywhere in public. The first violations result in fines, then an exclusion order, and then potential jail time for violation of the exclusion order.
Supreme Court precedent holds that it is unconstitutional to criminalize a person’s status, such as one’s status as a drug addict. Yet a later Supreme Court held by plurality that one could be criminally charged for public drunkenness, as that was based on a person’s conduct rather than their status. The question in City of Grant Pass thus turned on whether the ordinances criminalized a person’s status as homeless/housing insecure or their conduct of sleeping on public property. In a 6-3 decision, the Court held that the ordinances regulated conduct and as such did not violate the Eighth Amendment.
Both the majority and dissent discussed in depth the intractable and growing problem of homelessness, emphasizing its impact on municipal budgets and crime, but also its impact on individuals who have no options and are homeless or housing insecure for reasons wholly out of their control. Both also acknowledged that municipalities must be granted flexibility in their efforts to mitigate the problem. In this case, however, the majority recognized that under the City’s laws, it makes “no difference whether the charged defendant is homeless, a backpacker on vacation passing through town, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building.” As such, the ordinances do not criminalize mere status, but conduct of an individual.
The Court limited its decision to addressing whether the ordinances constituted cruel and unusual punishment under the Eighth Amendment. It did not address whether the ordinances violated the excessive fines clause of that same amendment, nor whether they violated the due process clause of the Fifth and Fourteenth Amendment. Further, municipalities in Massachusetts should be mindful that Article 26 of the Massachusetts Declaration of Rights, similar to the Eighth Amendment, prevents cruel and unusual punishment. Thus, cities and towns should consult with counsel before adopting a similar ordinance or bylaw, as the Massachusetts Supreme Judicial Court could interpret Article 26 as prohibiting punishment of the homeless for sleeping outside, even if one clause of the Eighth Amendment does not.
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