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More SCOTUS sanity, this time on the 8^th Amendment in Grants Pass:
For background, the 9th Circuit has embarked on what the Court calls a 5 year experiment in decreeing that certain offenses are effectively criminalizations of status (which the 8th still does prohibit, much more narrowly now) because committing those offenses are "involuntary".
The decision is likewise pretty sweeping, it goes all the way back to Martin and clears the entire are of law flat.
City of Grants Pass v. Johnson
6-3. Gorsuch gives the opinion, joined by the other conservatives. Thomas concurs. Sotomayor dissents, joined by the other liberals.
The question is whether enforcing prohibitions against things like camping within a city is a violation of the Eighth amendment—cruel and unusual punishment. The answer is that it is not.
Gorsuch opens with the backdrop: cities needing to tackle homelessness, especially in the West. The Ninth Circuit in 2019 ruled in Martin v. Boise that an ordinance against camping in public violated the 8th amendment. Since then, throughout the Ninth circuit, cities have been unable to enforce laws barring things like sleeping in public, which has significantly restricted their ability to address homelessness. Homelessness has increased throughout the ninth circuit.
The city of Grants Pass prohibits sleeping on public sidewalks or streets, prohibits camping on public property, and prohibits camping or overnight parking in the city's parks. Initially, these laws trigger a fine; if they receive multiple citations, may be barred from city parks for a month, and violation of that may constitute criminal trespass, punishable by a fine, or up to a month in prison. The ninth circuit ruled that this is unconstitutional.
Gorsuch turns to analysis. The Eighth amendment's prohibition on cruel and unusual punishments has to do with methods and kinds of punishments. At the 18th century, English law still allowed punishments like disemboweling or burning alive, though they were no longer used. The Eighth amendment exists to make sure that such punishments would not be turned to. And so it is odd to turn to this when the question is not what sort of punishment, but whether the government may criminalize behavior at all. In this context, the punishments are normal—fines, an order temporarily barring access to the park, and only later a fine and a short prison sentence. These are not intended to "superadd" "terror, pain, or disgrace." And such punishments are commonly used.
The plaintiffs and dissent argue that there is an exception, due to Robinson v. California, which in 1962 struck down a law against being addicted to narcotics, under the 8th amendment, holding that California, as when punishing "status," "even one day in prison would be cruel and unusual." The court there stressed that it was limited. It clarified that it would be fine to criminalize things like the use of narcotics. The problem was the turn to status. Gorsuch considers it surprising that this was done under the 8th amendments. It was asked mostly under the 14th amendment's due process clause, arguing that a mens rea—that is, criminal intent—was needed. Robinson had only briefly argued that going cold turkey in imprisonment (a punishment) would fall under the 8th amendment, because withdrawal sucks. But SCOTUS ruled on different grounds, limiting, by the 8th amendment, not just punishments, but what the state may criminalize. This was unprecedented. But, "no one has asked us to reconsider Robinson. Nor do we see any need to do so today." It held only that courts may not criminalize status. But prohibitions on public camping forbid actions, not status.
Gorsuch presents the dissent as arguing that Robinson should be extended to extend to all acts which a person can't help doing. But the court, he argues, already rejected that in Powell v. Texas, where it rejected the argument that laws against intoxication should be struck down, as drinking is involuntary to alcoholics. In that case, the Court ruled that Robinson only prevented enforcement of laws criminalizing a mere status, not about acts. And so, Robinson should not be extended and applied here. That said, that does not prevent other possible protections. Oregon (where Grants Pass is), for example, recognizes a "necessity" defense, and so, perhaps, that could extend. There are other such defenses, and states and cities can otherwise extend protections, and there are Constitutional limitations and due process requirements. But the Eighth amendment does not address this. Powell actually stresses that ruling otherwise could lead to the court judging the standards of criminal responsibility throughout the country, interfering with federalism. Questions like whether people violating the law had the requisite mental state should be left to the people, not the courts.
Martin also has problems. What exactly does it mean to be "involuntarily" homeless? If they turn down a shelter? The Ninth Circuit's Martin has stated that they are involuntarily homeless when the total homeless population is more than the number of "adequate" and "practically available" shelter beds. But, often numbers vary, and counting everyone repeatedly is costly. During COVID, one court held that "adequate" shelter required testing, and nursing staff. Additionally, the ninth circuit ruled that they cannot be punished for camping with things necessary to protect themselves from the elements. But would that include tents? Would it also require other acts "attendant to survival" like cooking or public urination and defecation? And Martin hasn't worked to make things better, as usage of shelters falls.
I'll return to Gorsuch's critiques of the dissent later.
Thomas writes briefly, asserting that Robinson was wrongly decided, and should be overturned. The proper measure for the eighth amendment is not modern public opinion, but the original meaning. And, punishment requires a crime, not "civil fines and civil park exclusion orders."
"Sleep is a biological necessity, not a crime." So opens Sotomayor. It is "unconscionable and unconstitutional" to punish them for their homelessness, as that is a status. She says that the majority presents cities as in crisis, using criminalization as a last resort, but it "fails to engage seriously with the precipitating causes of homelessness, the damaging effects of criminalization, and the myriad legitimate reasons people may lack or decline shelter." Some become homeless for reasons beyond their control, like lack of affordable housing, disabilities, or national disasters. "The burdens of homelessness fall disproportionately on the most vulnerable in our society." "For women, almost 60% of those experiencing homelessness report that fleeing domestic violence was the "immediate cause." Family dysfunction can be a cause. Less housing is available for the disabled. Sotomayor says that most homeless policies are beyond the scope of the case, but only concerns criminalizing sleeping. "Criminalizing homelessness can cause a destabilizing cascade of harm," as it doesn't help them recover, and they may lose property, like ID or other important things. People may lose their jobs. Meanwhile, it does not deter homelessness much, as people just move a few blocks away and go back to sleep. Shelter beds may be "practically unavailable" because of "restrictions based on gender, age, income, sexuality, religious practice, curfews that conflict with employment obligations, and time limits on stays." But people say they would appreciate shelter, if there was a suitable option.
In the case of Grants Pass, there are more homeless people than "practically available" shelter beds. The District Court ruled that they could implement time and place restrictions, and could ban the use of tents, but not everything. The ninth circuit further ruled that they did not need to allow use of stoves or fires.
In Robinson, the court ruled that under the Eighth amendment, punishments based on status were cruel and unusual for even one day. Robinson has been cited since then. Sotomayor thinks the majority misunderstands Robinson. The laws in question criminalize being homelessness. "The status of being homeless (lacking available shelter) is defined by the very behavior singled out for punishment (sleeping outside)." (Side note: Gorsuch had footnoted that other people sleep outside than just the homeless.) The purpose of the laws in Grants Pass is to criminalize the homeless, and deter it. The anti-camping law only applies when it involves bedding to maintain a temporary place to live (this includes vehicles). But only the homeless would do this, and so it singles out the homeless. "Homeless people necessarily break the law just by existing." Sotomayor says that "the majority countenances the criminalization of status as long as the City tacks on an essential bodily function—blinking, sleeping, eating, or breathing." And that this really just bans the person. She says that the majority would think it is cruel and unusual to punish for having a cold, but not for coughing from that cold. The statutes are enforced selectively, against the homeless, not against backpackers. (Gorsuch's response: sure, then bring up due process and selective prosecution complaints, not the eighth amendment.)
Sotomayor says Robinson should straightforwardly resolve the case, but the majority "speculat[es] about policy considerations," and fixates on extensions of the Ninth Circuit's narrow ruling in Martin. She says that everyone agrees that "time, place, and manner" of public sleeping can be regulated. Cities can still do some other things, like limit the use of fire, or ban illegal drug use, or harassment, or littering. She says that the majority does not need to address many of its hypotheticals. The majority should not frame it as "involving drugs diseases and fires" but as about "people trying to keep warm outside with a blanket." They also overstates the line-drawing problems. People should be allowed bedding to keep warm, but cities can rule as to when it must be packed up. "Just because the majority can list difficult questions that require answers does not absolve federal judges of the responsibility to interpret and enforce the substantive bounds of the Constitution." She also thinks Powell is a strawman, as the reasoning was split. Four thought Robinson covered any condition they cannot change, four rejected, and the middle vote left it open. (Gorsuch says that the court has since relied on Marshall's opinion.) And it is different, as Powell considered a statue criminalizing conduct that a status makes involuntary, whereas this case, it is the conduct that defines the status. (Gorsuch finds it inscrutable.) She states that the majority shifts goalposts and focuses on policy questions beyond the scope of this case.
Sotomayor lists some things that the majority does not talk about. It does not decide whether the claims are valid under an Oregon law codifying Martin. It does not decide whether it addresses the "Excessive Fines" clause of the eighth amendment. The district clause thought them disproportionate. It does not address the due process clause. Or other legal issues, like banishment.
Back to Gorsuch, he says that the dissent "does not dispute that Robinson's decision to address that law under the Eighth Amendment is hard to square with that amendment and the court's precedents, and ignores Robinson's insistence that if it had proscribed an act, it would be fine. Gorsuch does not think that she engages with Powell adequately—she does not consider that it has been endorsed in later cases. The dissent tries to portray the rule as limited, but it is actually broad, and leads to questions about what people might do. There is no principled way to answer these given by the Eighth Amendment. The dissent cites some other courts as giving reasonable answers to some of those questions, but gives no reason as to why that is better, it just like the policy.
My thoughts: This was badly needed; homelessness is a big problem in the Ninth Circuit. The majority was clearly correct. The dissent doesn't really care about the Eighth amendment, only about policy.
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It will be interesting to see whether this leads to rapid improvement in the homeless schizo situation in big West Coast cities, especially as @FlyingLionWithABook and others have persuasively argued that this was the big roadblock.
I think it will in those cities which WANT to do something about the problem. SF may be out of luck.
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Can we get that here? Some activists are currently arguing
about fifteen-year-olds requiring parental consent (and sixteen-year-olds requiring notification but not consent) before the school officially recognizes a name/gender change. (Also, "outing them to their parents" is directly against the written policy, as far as I can tell)
It doesn't look like the courts have accepted the claim, only that they can bring a case.
And of course, an advocate should raise any possible argument that will advance their clients' case.
Yes, any possible argument. Ideally, they would have been laughed out of the room for proposing that strategy because it should have no chance of success.
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Part of the problem with the law was that, as enforced, it did indeed criminalize the status of homelessness. As Sotomayor pointed out during oral argument, a stargazer who happened to fall asleep on a blanket wouldn't be arrested, nor would a baby in a stroller, etc. The entire point of the city's enforcement was to Ban the Bums. I can sympathize with them. When I worked on the North Side I'd often see obviously homeless people sleeping on park benches near the riverfront in midday, and it greatly irritated me. On the other hand, I wouldn't want to make sleeping in a park an actual crime, because I'm admittedly not that concerned about a guy who simply wants to take a snooze in fresh air on his lunch break. This is akin to the problem I have with so-called "hostile architecture"; I have no problem with municipalities that want to discourage bums from sleeping in certain areas, but the solutions just make those areas a little more unpleasant for everybody (with the possible exception of running lawn sprinklers at night, which actually makes the most sense if you're going to use them, though I live in an area where they're not necessary and I think that areas where they are shouldn't worry about having lawns to begin with, but that's another argument entirely).
So, even if I wouldn't necessarily have voted to strike down this particular law (I haven't read the opinion so I don't know the legal niceties), I understand the urge. That being said, there's no reason why Grant's Pass couldn't have accepted their defeat and moved on; they may have won a minor victory, but I doubt this much litigation was necessary. In recent years, Pittsburgh has a problem with homeless people camping along the bike trails near the river. Most of the areas with homeless encampments here are areas that are sort of in a legal limbo as to who has enforcement rights, the sort of interstitial places that aren't economically valuable but nonetheless privately owned. If the city wants to clear them out they can't do so without a complaint from the owner, and the owner may be CSX, or US Steel, or some other company that has more important things to worry about. Or in areas that are technically city-owned but are burdened by easements from PennDot, or land owned by some independent municipal authority that doesn't use it so they're not even sure if they own it. No one is going to go to the recorder's office to untangle this mess unless the situation gets so bad as to generate the requisite complaints.
One place you don't see homeless, though, is Point State Park. It's hours are from sunrise until 11:00 pm, after which time you risk getting kicked out. That being said, I don't know how strictly this is enforced; there are certainly other park regulations that aren't enforced, like the prohibition on wading in the fountain (which children are doing almost continually during the summer months), but no park ranger is going to say on the record that they only enforce closing time against suspected bums. Saying that it closes at 11 except with special permission is easily justifiable on other policy grounds, and it doesn't require ridiculous statements like saying you'd arrest babies in strollers just to be consistent. Most anti-camping rules aren't written with homeless people in mind. Most state parks aren't in areas with any risk of bums congregating, but they still limit camping to designated sites because they're popular places and they want to limit the environmental damage it would cause if they allowed people to camp anywhere they chose. State forests are less restrictive, in that they generally allow primitive camping anywhere, but they still impose limits, like staying 500 feet from a road crossing or water source, limiting the duration of stay, requiring special permission for large groups, and requiring the destruction of fire rings upon exit. Again, the goal is to allow people to camp, but make it so backpackers aren't contaminating water sources and leaving fire scars every 50 feet. State Game Lands are even more restrictive, prohibiting camping almost entirely, but they're designed for hunting and wildlife management, not general recreation.
If Grant's Pass wanted to Ban the Bums, they could have looked at any number of other options that would have achieved the goal without raising any constitutional questions. First, the ban on "sleeping apparatus" or whatever it was should have been more narrowly tailored. I don't know what the climate is like there, but prohibiting tents, boxes, tarps, and other temporary shelters would have at least gotten rid of anyone who didn't want to sleep outside. Setting park hours would have helped, though it's understandable that they'd want the parks to be open overnight. Enforcing the alcohol rules would have probably eliminated at least half of the campers. They could have prohibited open flames outside of grills, and then limited the hours of grill use. Or they could have just removed the people without arresting them, which is what happens in most cases of minor violations where the cop isn't just being a dick. Had they done any of this after losing in District Court they could have saved the money they spent on challenging the law and used it to restore the areas that had been damaged, rather than let the problem get worse over the next 6 years.
I do not believe there is any cognizable principle of law that says that the State needs a complaint from the owner of a property in order to enforce generally-applicable criminal law.
If you can provide some more citation here perhaps it would illuminate why the city thinks they cannot clear out the encampment as a matter of enforcement of criminal law.
Because there is no crime. Pennsylvania trespass laws fall into three categories:
Criminal Trespass is the most serious (it's a felony) and involves either breaking into an occupied structure or using deception to gain access to an occupied structure.
Simple Trespass requires proof that the defendant entered the property for the purpose of engaging in damaging acts, like setting fires, threatening the owner, or engaging in vandalism.
Defiant Trespass is when you either remain on the property after being told to leave or ignore a posted warning, fence, or other clear indicator that you should keep out.
In other words, the act of simply remaining on public property without permission isn't actually a chargeable offense in Pennsylvania. Even if it were, they'd still have to prove that the defendants lacked permission to occupy the premises, and it's going to be hard to get a property owner in court to testify if they can't even be bothered to make a phone call about a homeless encampment on their land. Add to this the fact that it's not the job of police to know exactly who owns what property, e.g. everyone in Pittsburgh is familiar with the PPG Building but PPG never actually owned it. The current owner is HRLP Fourth Avenue LLC, a company that I can't find any information about meaning it's probably a subsidiary of another company that I'm not searching through incorporation records to find out. The police are only tracking this information down and getting the okay if the encampment is big enough to make the news or get a lot of complaints. They aren't doing this every time two guys are sleeping under an overpass.
But that is merely one offense.
An encampment on a railway is surely breaking a dozen other laws. It seems totally probably that they are otherwise totally law abiding.
I never said these encampments were on railways. Railroad companies own a lot of property that's near railways but not on the railways themselves. In fact, the actual rail property is likely to just be an easement and not owned by the rail company itself. I mean, yeah, if you look closely enough you can probably find evidence that they're breaking other laws, in which case you get to arrest them for a summary offense, ticket them, and let them go back to wherever they were camping. You certainly can't remove them from the premises (that for all you know they're allowed to be on) just because they commit some minor infraction. And even if you can, why would you? If they really have nowhere to go then you're just moving them to some other place they can foul up so they can do it again. Police have other things to focus on than playing whack-a-mole with encampments that are out of the way and that no one is complaining about.
You certainly can arrest them for those offenses. I don't suggest that as a first course of action, but I do think if they are fouling up an area with trash and human waste, a graduated set of consequences culminating in arrest is the only thing that will actually stick.
The goal isn't to play whack-a-mole, it's to make clear them that living on the streets and encampments is not viable and they need to accept shelters & treatment, even when they don't like the rules and conditions there.
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Hostile architecture exists for the sole reason that cases such as this one prevented the authorities from removing bums. If we could simply round up the bums and contain them somewhere else, this wouldn't be an issue, but because the authorities have their hands tied, we have to resort to inanimate solutions.
Agreed. Hostile architecture is a part of Crime Prevention Through Environmental Design (also known as the tragedy of the commons). You can blame hard and awkward seating in McDonalds and your local bar and cafe for the same reasons.
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Amusingly, the town motto is literally "It's The Climate". Great place to sleep outside.
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Unfortunately, the 9th circuits ruling in Boise and then in Grants pass made it extremely difficult to police the homeless. Do you want to know why LA, San Fran, Portland, and Seattle are drowning in homeless while New York isn't? It's because they fall under the 9th circuit jurisdiction and NY doesn't. Even more conservative cities like Boise, Anchorage, and Spokane have seen homeless encampments spreading across their public parks and downtowns over the last five years. It wasn't just that they ruled you couldn't punish a bum unless you had a shelter bed available for him; you had to have a shelter bed that he would voluntarily accept. You could have provided hundreds of beds and still not been able to round up the bums if they didn't want to live in the shelter; perhaps because the shelter does not allow the public use of narcotics, for instance.
The 9th circuit has caused harm to the entire west coast with their holier than thou decrees, and has harmed me personally. Grants Pass is a hero for seeing this through to the supreme court.
That kind of ban would was illegal to enforce under the 9th circuits ruling.
Also illegal to enforce under the 9th circuit's ruling.
Also illegal under the 9th circuit.
Ah, yes, definitely a mystery for the ages. The following data is from this page. I included the "# homeless" for completeness and I understand the source has an incentive to overstate it. But I actually wanted to highlight is the large difference in number of shelter beds.
New York has way more shelter beds (I'm assuming all of these numbers are dominated by the cities... because I wasn't able to find finer-grained data easily). They're not getting in legal fights over their refusal to build shelters because they're not refusing to build shelters.
Shelter beds aren’t that useful if you can’t require that people use them. In New York if someone set up a tent in Central Park the cops will intervene and let him know he can go to a shelter or go to jail. Until yesterday you couldn’t do that on the West Coast. If Mr. Tent doesn’t feel like going to the shelter, then he gets to stay put.
I'm fine with requiring people to use shelter beds (although I gather some of the debate is on what constitutes an acceptable shelter bed) and as far as I can tell, so is the Ninth Circuit. I assume there's some technicality making their ruling not actually do what it appears to? I thought this whole fight was because Grants Pass didn't have enough shelter beds.
The ninth circuit isn't okay with requiring people to use shelter beds unless the number of beds (and only certain types of beds—if they require various sorts of things, they don't count) is greater than the homeless population. Notably, that means that if you have 500 beds and 600 people, 200 of whom want to stay on the street, you have to leave 200 on the street, not 100, I'm pretty sure.
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Your point holds true for OR and WA but unless I’m misreading the graph, California has 100k extra homeless but only 40k fewer beds. Even if they build as many beds as New York they’d still have a homeless problem.
On a more meta level, you seem be presuming that homeless people have a right to a bed in the major metropolis of their choice. I don’t think it’s illegitimate to say, ‘we have 20k beds and 50k homeless, so the 30k we don’t have beds for need to go somewhere they can find work and cheaper accommodation’.
That's a strange way to look at the data. I gave the per-capita numbers because I thought it was much more fair to norm on the size of the state. What you said is equivalent to saying that if California built as many beds as New York, a state half its size, then it would still have a homeless problem. Which when put that way seems completely unsurprising.
I made a descriptive claim, not a normative one. There being shelter beds available to sleep in seems like a more immediate cause of fewer homeless people visibly sleeping on the streets than the police forcing homeless into beds, which doesn't seem like a workable strategy if there aren't enough beds.
You seem to be implying an alternative strategy of forcing the homeless to move elsewhere, which unlike forcing them into shelters that don't exist is at least physically possible. It's unlikely to be very popular with either the homeless or the elsewhere, but it's possible you could come up with an option some of them would find acceptable. One difficulty is that in the US outside of urban centers, you usually need a car, which is part of why homeless shelters are usually in fairly dense areas with transit.
It's pretty common in cities with climates that are undesirable to offer homeless people free greyhound tickets to coastal California during peak bad-weather season(EG August in Dallas, December in Milwaukee) IIRC. And, honestly, New York probably has more homeless in shelters than coastal California at least partially because there are times of year when you'll die if you sleep on the streets in NYC.
Yes, as unpopular as homeless shelters are, letting them all die of exposure is even less popular. But the political consensus in west coast cities seems to be on the side preferring people sleep on the streets over building homeless shelters.
This is, in part, because you can sleep outside year round on the west coast without dying.
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Mea culpa, I missed this. I’m not American and I instinctively think of NY and CA as having similar importance and size. I apologise.
I take your point about requiring car access but OTOH expecting to house a hundred thousand homeless in the richest and most expensive cities in the world doesn’t seem plausible. I would be inclined to think that either they are capable of finding work at some level and should move to where land is cheaper and competition is less fierce, or they genuinely can’t support themselves in which case the government should house them somewhere it will cost less.
I’m not sure how this plays out with regards to state budgets and central funding though.
This is pretty core to the problems with housing and the homeless in the United States. Housing is handled at the very local level, often effectively even below the city level due to the impact of public meetings. There's been some pushback on that in the past few years with some amount of state-level zoning overrides happening in a few places, but I'm pretty sure most places do homeless services funding at the county or city level, so sending the homeless to another city is a cheap and popular solution for the source city.
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You can build trailer parks in the middle of nowhere to house former homeless in. They'll leave, of course. No one actually wants to live in a trailer park full of lumpenproles, including the people who do so now.
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I hope those of us who thought that the law would be overturned 5-4 will update now that it has been upheld 6-3.
Eh, I called Rahimi and Murthy v. Missouri; can't expect perfection.
"this case will be decided in a way I don't like" regardless of the merits is not a particularly strong reasoning process.
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HuffPost misrepresents the ruling:
This is completely wrong. The Court found that laws can target a wide variety of behaviors, and that the 8th Amendment prohibition on "cruel and unusual" is just on the punishment after conviction. Homelessness is still a status that can't be criminalized.
Sotomayor's dissent in the ruling is also lacking:
...or leave. This really cuts down to the roots of ideological disagreement between left and right: who are we ("we" meaning local government in this case) responsible for? Left says everyone, right says not everyone.
Sotomayor points out briefly that that leads to questions of whether banishment is allowed, which the majority never addresses.
Because it's not banishment. Banishment implies you're not allowed to come back. With the Grant's Pass laws, you can come back, as long as you're awake or inside.
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No, I think HuffPo gets it right. The crazy reality of Martin (etc) is that it really did treat homelessness as "a class with an immutable status that confers protections". In particular, under that line of cases, the involuntarily homeless could not be punished for anything that was a logical necessity for the homeless. For example, even though there was a public camping ordinance, that could not be enforced against an individual that lacks access to alternative shelter.
So more than saying "involuntarily homelessness is a status that cannot be criminalized", it also says "because of that, regular and usual conduct that can normally be criminalized, cannot be criminalized against folks with that status, if that behavior is logically entwined with that status". See. e.g this SF case
So in truth, the precedent in the ninth circuit really was involuntary homeless status was a a shield against conduct law, if you can draw a tight enough connection between the status and the conduct.
And the dissent didn't really bother with that. In Powell v. Texas the court ruled that just because the crime was involuntary doesn't mean it couldn't be banned. So the dissent denies that it's about being involuntary:
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I agree with the SCOTUS majority that this is pretty weak 8th amendment claim but to get to the direct question:
leave to where?
what if your county is so big you can't walk out of it in one day and pass out on the road and thusly get busted for sleeping in public? what if everywhere in every direction has criminalized sleeping in public?
you eventually have no choice but to go to jail, yes?
I'm sympathetic to the idea that there's a class of people exploiting the law who prefer to be fulltime druggists living in a tents in the park despite homeless shelters having space for them, but am slightly horrified that you could end up in a situation where if you lose enough resources you have no choice but to stay awake until you sort your shit out or you go to jail.
In that case you might have a defense of necessity or even impossibility. In practical terms, they could simply offer you a bus ticket to a place with shelters or legal camping, and my understanding is that this is common practice already.
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The balance of needs here is that the police get the power to threaten to put you in jail unless you accept shelter, even if you don't want that particular shelter.
That requires the jurisdiction to provide shelter, which is usually unpopular (both since it costs money and since it has to go somewhere and no one wants to live next to the bum tank).
The Court noted that, as regards to the actual participants in the case, there were available shelters that they declined because they had rules the homeless would rather not follow.
In other words, there's some game theory here. The services & shelters work best[1] when they can impose rules. The shelters' ability to impose rules is limited by the alternative choice of the homeless to live on the streets. Solve for the equilibrium.
[1] As an aside, the shelters working best becomes a sort of fractal pareto of a pareto where the bottom 20% of the homeless themselves drag down the rest. It is very hard for people to become clean in an environment where there are drugs and alcohol.
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Some neighborhoods are already crapholes and you can just build there. Sometimes local leaders need a bribe. But it's not impossible to do.
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I can't speak to the deeper legal implications, but always felt this was the correct direction. If you can't kick homeless bums out of the park, you don't have nice public parks, and people will turn to private ones. That makes beautiful places exclusive. If you're rich you get nice golf courses and gated communities, if you're poor you get the local park overrun with squatters and bums.
There's probably some due process or doctrine of impossibility framework where compliance genuinely wasn't possible, or where enforcement is just a 'you must be this unscruffy', that I'd have a lot more sympathy for. But this was a facial challenge, temporary shelter was available (if not in conditions the plaintiffs wanted), and the underlying Martin decision was completely nuts.
((That said, I'd expect a lot of the coastal state judiciary discover a new right to camp if homeless.))
I'm working on a comment above that touches on this, but part of the appellant's argument was that enforcement was limited to homeless people and not regular people who happened to not be in strict compliance with the law. Hence Sotomayor's example of a guy who goes stargazing on a blanket and accidentally falls asleep. The Chief of Police admitted on the record that the law was only enforced against homeless people, and said such people wouldn't be arrested. That's where the whole "criminalizing status" argument came in, because it was a law that, as enforced, had the effect of making homelessness illegal in the city.
There's some messiness with it -- the state was able to respond to Sotomayor with a specific example of a citation "issued to a person with a home address" (pg 10, committed to a (state) necessity defense, and there's actually a mess of five different regulations only some of which got enjoined, and as progressives are prone to point out in other contexts sometimes a rational law only hits some people because they're the only ones violating it -- and the facial nature makes that even uglier.
But yeah, I think there's something on the edges that would make more sense, and probably be something the courts would be willing to enforce. The Eight Amendment doctrine just doesn't make sense for it.
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Well sure, but inadvertent violations of minor laws go unpunished relatively frequently. No doubt a non-homeless guy sleeping on a park bench because, say, it's next to the bar and he doesn't want to pay for an uber, would find himself facing a minor fine if caught.
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The cop would probably nudge him awake and say, "You can't sleep here," and the guy would go home. If the guy instead pulls out a tent and crawls inside to sleep there, he'll probably get told again to leave and, if he doesn't, arrested. This applies whether the guy is homeless or homed, there's no class distinction other than one of obstinate and probably repeat offending.
Sleeping in a park where sleeping is disallowed because you have nowhere else to sleep is no different than stealing fruit from a fruit stand because you have no other food. It's a crime, whether you're scruffy or clean-cut.
Luckily there are beds and food in jail, so the system works when we let it.
There's another distinction: If the guy has a home and is just being obstinate, he gets no defense. His lawyer wouldn't fight for his constitutional right to sleep in public; he'd just try to get the level of offense reduced or obtain probation-before-judgement. No left-wing organizations would be jumping to his defense (nor, obviously, right-wing). If he somehow nevertheless got to appeal, the Ninth Circuit would not find that criminalizing sleeping in public for someone who had a home was criminalizing a status. So the Ninth Circuit really was requiring special rights for the homeless.
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Just as there is a takings clause where you can’t let the public take from the private, the inverse takings clause should apply (ie can’t let private take public property)
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