Eighth Amendment Features in Supreme Court Case on Homelessness

At the core of the Supreme Court battle over a small Oregon town’s treatment of its homeless people is a narrow question: Does the Eighth Amendment’s prohibition on cruel and unusual treatment apply to a city’s efforts to crack down on public sleeping and camping?

The Eighth Amendment is most commonly applied to punishments, not to laws themselves, and it is often the focus of litigation around the death penalty, solitary confinement and life without the possibility of parole.

But in the case on Monday, lawyers for a group of homeless residents argue that the Eighth Amendment bars the city from enforcing a series of local ordinances that, taken together, ban sleeping outside with bedding or camping in any public space in the city. Because the town, Grants Pass, has no homeless shelter, unaffiliated with any religious group, that is open to everyone, they argue, all homeless people there are involuntarily homeless and cannot be punished for having nowhere to go.

To make that argument, the homeless plaintiffs have looked to rulings that apply the amendment beyond punishments themselves and to the concept that a person cannot be penalized for their state of being.

In one landmark 1962 decision, Robinson v. California, the court found that a person could not be punished for being addicted to drugs, paving the way for subsequent applications. Because those rulings found that the Eighth Amendment prohibits punishing people for having “an involuntary status,” the homeless plaintiffs say that it would also be relevant to their situation. They add that they are being disciplined for circumstances outside their control, in this instance “universal biological necessities like sleeping and using a blanket to survive cold temperatures when they have no choice but to be outside.”

The city argues that this is an inappropriate use of the Eighth Amendment and a fundamental misunderstanding of its purpose.

Two legal experts, in filing a friend-of-the-court brief siding with Grants Pass, argued that the Constitution did bar criminalizing someone’s state of being, rather than their specific conduct. But that prohibition, the law professors — Peter W. Low of the University of Virginia and Joel S. Johnson of Pepperdine — added, had a “shaky Eighth Amendment footing.”