This weekly roundup thread is intended for all culture war posts. 'Culture war' is vaguely defined, but it basically means controversial issues that fall along set tribal lines. Arguments over culture war issues generate a lot of heat and little light, and few deeply entrenched people ever change their minds. This thread is for voicing opinions and analyzing the state of the discussion while trying to optimize for light over heat.
Optimistically, we think that engaging with people you disagree with is worth your time, and so is being nice! Pessimistically, there are many dynamics that can lead discussions on Culture War topics to become unproductive. There's a human tendency to divide along tribal lines, praising your ingroup and vilifying your outgroup - and if you think you find it easy to criticize your ingroup, then it may be that your outgroup is not who you think it is. Extremists with opposing positions can feed off each other, highlighting each other's worst points to justify their own angry rhetoric, which becomes in turn a new example of bad behavior for the other side to highlight.
We would like to avoid these negative dynamics. Accordingly, we ask that you do not use this thread for waging the Culture War. Examples of waging the Culture War:
-
Shaming.
-
Attempting to 'build consensus' or enforce ideological conformity.
-
Making sweeping generalizations to vilify a group you dislike.
-
Recruiting for a cause.
-
Posting links that could be summarized as 'Boo outgroup!' Basically, if your content is 'Can you believe what Those People did this week?' then you should either refrain from posting, or do some very patient work to contextualize and/or steel-man the relevant viewpoint.
In general, you should argue to understand, not to win. This thread is not territory to be claimed by one group or another; indeed, the aim is to have many different viewpoints represented here. Thus, we also ask that you follow some guidelines:
-
Speak plainly. Avoid sarcasm and mockery. When disagreeing with someone, state your objections explicitly.
-
Be as precise and charitable as you can. Don't paraphrase unflatteringly.
-
Don't imply that someone said something they did not say, even if you think it follows from what they said.
-
Write like everyone is reading and you want them to be included in the discussion.
On an ad hoc basis, the mods will try to compile a list of the best posts/comments from the previous week, posted in Quality Contribution threads and archived at /r/TheThread. You may nominate a comment for this list by clicking on 'report' at the bottom of the post and typing 'Actually a quality contribution' as the report reason.
Jump in the discussion.
No email address required.
Notes -
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.
More options
Context Copy link