Home of the Brave? A CLE Response to City of Grants Pass, Oregon v. Johnson

Posted on July 2, 2024 By

by Sonja Morin

(published July 2, 2024)

Americans everywhere are preparing to celebrate the United States’ 248th anniversary of independence this Thursday. Many recall their own history of living in the U.S., or their families’ reasons for calling this land their home. The national anthem’s famous line “o’er the land of the free, and the home of the brave” echoes in concerts, sports events, and celebrations everywhere. Yet for many in the same country, this July 4th arrives with a fear that they will be deprived of their freedom to find a home in this land.

Last Friday, the U.S. Supreme Court announced its decision in City of Grants Pass, Oregon v. Johnson. The 6-3 decision declared that cities may choose to criminalize homeless people for sleeping in public spaces. Forty-eight states and Washington, DC already have some form of statewide law criminalizing homelessness , in addition to hundreds of city-wide ordinances. Grants Pass v. Johnson now gives these laws the highest judicial grounds for enforcement.

In his majority opinion for the case, Associate Justice Neil Gorsuch identified that people who endure homelessness “cannot help but undertake” last-resort measures (such as sleeping outside) to survive. He maintains that, since laws like the Grants Pass ordinance prohibit sleeping in public places for everyone, that it therefore must not be a case of discrimination against a certain group based on their status. To the judicial majority, it does not count as a case of “cruel and unusual punishment” under the Eighth Amendment of the U.S. Constitution.

No one expects the Supreme Court to solve the increasing plight of homelessness. After all, the primary task of the Court is to determine whether or not laws are constitutional. However,  the Grants Pass v. Johnson decision was not only contradictory to the Constitution, but is poised to worsen the crisis facing homeless people in America.

The Eighth Amendment’s phrase “cruel and unusual punishment” has been typically interpreted as ensuring that a penalty for a crime is proportional to the crime itself. In the case of Grants Pass v. Johnson, the crime is sleeping in public space, and the penalties are steep fines (up to $1,250) and jail time (up to 30 days).

While ordinances like the one upheld in Grants Pass ban everyone from sleeping outdoors in a public space, it stands to reason that the majority of people who are doing so are experiencing homelessness. No one intends to become homeless, or to stay in the state of homelessness. Regardless of the circumstances that led them to that state, people are often forced to stay in that state based on external factors out of their control (such as overcrowded shelters or job-hunting difficulties).

In a just society, penalties for crimes are lessened or removed if the person was forced into the crime itself. With that in mind, penalizing people who sleep outside when they have no other feasible options seems excessive. The SCOTUS majority giving the green light to the Grants Pass ordinance (and, by extension, other ones like it across the country) defies the same Amendment it claims to protect.

The issues with Grants Pass v. Johnson don’t stop at its flaunting of constitutional intent. Instead, it permits the proliferation of violence and discrimination against people facing homelessness throughout the U.S., and perpetuates the cycle of poverty and human rights violations.

For starters, public encampment bans are not the end of “cruel and unusual punishment” for people experiencing homelessness. According to a nationwide study, an estimated 14-21% of homeless people are victims of violence, in comparison to 2% of the general population. They are also much more likely to be subject to “excessive force” by police, even if they are not suspected to have committed a crime. If sleeping outside is an arrestable offense, it gives even more opportunity for these violent incidents to happen, and to protect the perpetrators under law. Most people who are homeless do not know of or have access to resources that will protect them in unjust cases like these. They will be brutalized, have their dignity ignored and unprotected, and have no ability to protect themselves from continued abuse.

Homeless people are already much more likely to be imprisoned, solely for the “crime” of being homeless. Shelters and resources are severely underfunded and overcrowded. When one has no home or transportation, and cannot be admitted into a shelter, their only other option to exist is outdoors. When this last option is an arrestable offense, many end up in what is called the homeless-jail cycle. Time in prison not only makes people far less likely to be able to get a job or obtain housing once released, but predisposes them to be thrown back into prison, often for the same “crime” of being homeless.

The crisis of poverty worsens the likelihood of other injustices against life. In neighboring Canada, people suffering from poverty or homelessness face much stronger pressure to choose euthanasia via the country’s Medical Assistance in Dying (MAiD) Program. As more U.S. states consider or authorize euthanasia, the possibility for the same situation in this country grows.  Three-quarters of people seeking abortion are below or at the federal poverty level. A Guttmacher Institute study surveying women who had abortions found that 73% chose it because of financial concerns. If homeless criminalization makes the path to financial stability all the more impossible, and the reaches of homelessness more broad, then it will force countless people into literally choosing between life and death.

Many people who have lived in the United States, including myself, are proud to be Americans. This approaching holiday is always a reminder of the privilege it is to live here, and enjoy the freedoms therein. But it is also a call to action to do our part to enshrine those freedoms for everyone here. And when there is a whole segment of the population in this country who cannot exist or sleep without being criminalized or violated, it demands soul-searching and change on our part. There is no “land of the free” or “home of the brave” without the equal opportunity to find a home without fear.


For our posts on similar topics, see:

Social Programs to Help the Poor are Pro-life

Euthanasia by Poverty: Stories from Canada

Threats to the Unborn Beyond Abortion

The Deserving and Undeserving Poor vs. the Worthy and Unworthy of Life: How Both Major Political Parties Pick and Choose Who They Help and Whom They Kill

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