Of the 653,000 people who experience homelessness in the United States, 41 percent live in the nine westernmost states, according to the most recent federal survey. That includes the five states with the highest rates of unsheltered people. There are many reasons for this, from patterns of poverty and drug addiction to the benign weather in California — 68 percent of whose 181,000 homeless people were unsheltered, more than any other state. A little-known but crucial factor, however, is that all these states are under the jurisdiction of the U.S. Court of Appeals for the 9th Circuit, whose unique legal doctrine has effectively barred most enforcement of local public camping bans.
Though started with good intentions — to prevent “criminalization” of poverty and to incentivize cities to offer shelters — the 9th Circuit approach has shown itself to be counterproductive. Without a credible threat of sanctions against public camping, officials have little leverage to induce people to take shelter beds when they are available. Arguably, this has undermined quality of life not only for those who live or work near unsafe encampments but also for the homeless people themselves.
That’s why a broad bipartisan coalition including leaders from big blue cities and small red towns in the 9th Circuit, and elsewhere, is begging the Supreme Court to rule in favor of Grants Pass, Ore., a small city in the south of the state whose civil fines for public camping were invalidated last year by the 9th Circuit. Oral argument is Monday, and we, too, hope the justices side with Grants Pass.
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The 9th Circuit’s position is that a city can penalize public camping but only when there are enough beds in suitable shelters inside the city limits to accommodate everyone who is “involuntarily” homeless. Otherwise, it is guilty of cruel and unusual punishment, in violation of the Eighth Amendment. However good this might sound in theory, in practice, the 9th Circuit and its component district courts have defined the terms of acceptable shelter so narrowly and confusingly that few places can comply.
Federal judges shouldn’t be in the business of issuing injunctions while assessing the quantity and quality of shelters. Phoenix, in a friend-of-the-court brief supporting Grants Pass, said judges are acting “as homeless policy czars” rather than “applying discernible rules of law.” Compounding the problem is the 9th Circuit’s notion that shelters operated by church groups may not count as available space because a faith-based milieu can create a possible unconstitutional establishment of religion. Grants Pass ran afoul of this remarkable requirement because 138 of its beds were at the Gospel Rescue Mission.
To read the Oregon town’s brief, and those of its supporters at the Supreme Court, is to marvel at the gap between the 9th Circuit’s vision and the real-world damage that comes from federal-court supervision of this traditionally local responsibility. In Grants Pass, people camping by the Rogue River use it for bathing, as a bathroom and for drinking water. Last May, one homeless man killed another in a park. The bigger the city, the bigger the problems. San Francisco saw more than 800 fires started by people cooking or warming themselves in homeless encampments last year. Diseases have spread, along with dangerous waste such as discarded syringes and needles.
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A brief from California Gov. Gavin Newsom (D) acknowledged that people shouldn’t be punished for sleeping outside when they genuinely lack an alternative but noted that the 9th Circuit has left local officials “trapped, at risk of suit for taking action but also accountable for the consequences of inaction.” He also remarked on the contradictory fact that a federal agency, the National Park Service, could clear a homeless encampment in McPherson Square, federal property near the White House, but that communities in his state cannot.
The framers of the Eighth Amendment adapted it from the English Declaration of Rights, whose drafters, in turn, were responding to the barbarism of King James II. The original intent was to prevent punishments like branding, burning at the stake, public dissection, or drawing and quartering. The Supreme Court updated this in 1958 to allow for “the evolving standards of decency that mark the progress of a maturing society.”
Throughout history, however, courts generally distinguished between society’s power to impose consequences for unlawful conduct, which the Eighth Amendment regulated, and society’s power to define unlawful conduct, which it does not. In this instance, the 9th Circuit blurred that basic distinction. Fortunately, the Supreme Court can help restore order, to constitutional law and to parks, streets and sidewalks across the West.
