The US Supreme Court Should End Criminalization of Homelessness

The sight of tents and unhoused individuals in cities nationwide is a visible reminder of the lack of affordable housing and insufficient support systems. Instead of tackling root causes, many cities and states have opted for a seemingly quick but ultimately counterproductive response.

Florida, along with over a dozen states, has enacted laws prohibiting sleeping outdoors, sometimes for things as small as using blankets or pillows. Meanwhile, Kentucky’s legislature passed a bill allowing property owners to use deadly force against unhoused individuals on their premises without repercussions.

A central legal question is whether criminally punishing people for sleeping outdoors on public property when they have nowhere else to go violates the Eighth Amendment of the US Constitution, which prohibits excessive bail, fines, and cruel and unusual punishments.

As the US Supreme Court prepares to hear Grants Pass v. Johnson on April 22, it’s crucial to understand why using jailing sentences and criminal fines to address homelessness is ineffective and fundamentally unjust.

The case originated in Grants Pass, Oregon, where the city issued $300 tickets to individuals for sleeping in public spaces, despite the lack of any safe accessible shelter beds. The city doesn’t maintain a public emergency shelter, and the rental vacancy rate is 1%, or basically zero. There simply isn’t enough housing that people can afford. This situation mirrors a nationwide issue, as many US cities face a significant shortage of affordable and safe housing units.

Courts’ interpretations have opposed punishing unavoidable, human behavior, such as sleeping or using a blanket to try and survive a winter night, particularly in the absence of alternatives. This interpretation was upheld first in the 2018 Martin vs. Boise decision by the Ninth Circuit Court of Appeals, which ruled cities can’t enforce criminal ordinances that punish homeless people just for existing in public when there is no adequate available shelter.

Presently, on any given night in America, over 600,000 individuals are homeless, with nearly half sleeping in outdoor locations. Recent statistics from the Department of Housing and Urban Development shows a significant rise in homelessness among both sheltered and unsheltered populations across all states. Most importantly, the main factor driving this unprecedented level of homelessness is the lack of affordable housing.

Although evidence shows criminalization to be the most expensive and least effective method, it remains the preferred policy. The hidden costs of this approach—policing, jailing, and clogging courts, not to mention the barriers it creates for individuals seeking housing due to fines or criminal records—are substantial. Yet, these costs are often harder to see, making the immediate action of removing a tent from a corner politically appealing.

When constituents demand action on homelessness, the immediate response is to remove the visible signs of the problem. However, real solutions, such as providing housing and supportive services through subsidized housing or incentives for private development, come with upfront costs and take time to implement. That shortfall won’t be solved by putting more people in jail or issuing more tickets.

A Supreme Court ruling affirming that people shouldn’t be punished for trying to survive could encourage lawmakers to prioritize actual long-lasting solutions. These solutions should focus on ensuring housing is safe and affordable, rather than rely on punitive measures that don’t address the underlying issues.

For example, cities such as Miami, Milwaukee, and Houston have significantly reduced their homeless populations through investments in housing and support services.

A federal ruling prohibited use of jail cells and fines as a response to homelessness in Miami from 1998 to 2019. Miami-Dade County funded housing and services during this period and reduced homelessness by 90%.

Milwaukee saw a 92% decrease in its unsheltered population following the start of a housing-first program in 2015. In Houston, the nation’s fourth most-populous city, more than 25,000 homeless people were provided apartments and houses that helped to reduce homelessness there by 64%. These cities demonstrate that providing supportive housing is key to ending homelessness.

Relying on criminalization is expensive and shortsighted. It simply moves the issue without making anything better, leading to higher costs, exacerbating the problem, and violating basic human rights and dignity in the process. A Supreme Court ruling that recognizes the inhumanity of such penalties could pave the way for more effective approaches to end homelessness.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Will Knight is senior litigation attorney and decriminalization director for the National Homelessness Law Center.

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