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PaperclipPerfector  4mo ago (text post)   28520 thread views

Culture War Roundup for the week of June 24, 2024

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HuffPost misrepresents the ruling:

In overturning Martin and Grants Pass, the Supreme Court found that homeless people do not constitute a class with an immutable status that confers protections from cruel and unusual punishment.

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:

the majority focuses almost exclusively on the needs of local governments and leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested.

...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.

...or leave

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.

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.

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

Applying Martin, a district court entered an injunction barring the city from enforcing “laws and ordinances to prohibit involuntarily homeless individuals from sitting, lying, or sleeping on public property.” Coalition on Homelessness v. San Francisco

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.

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.

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:

The Powell Court considered a statute that criminalized voluntary conduct (getting drunk) that could be rendered involuntary by a status (al- coholism); here, the Ordinances criminalize conduct (sleeping outside) that defines a particular status (homelessness). So unlike the debate in Powell, this case does not turn on whether the criminalized actions are “ ‘involuntary’ or ‘occasioned by’ ” a particular status.

I agree with the SCOTUS majority that this is pretty weak 8th amendment claim but to get to the direct question:

...or leave

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.

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?

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.

I'm sympathetic to the idea that there's a class of people who prefer to be fulltime druggists living in a tent in the park despite homeless shelters having space, 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.

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.

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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