Supreme Court to decide if ban on homeless encampments is 'cruel and unusual'

(GRANTS PASS, Ore.) — Just past the outfield fence of the local little league ballpark, homeless residents of this sleepy Oregon town erect tents to spend the night protected from cold and rain.

“It’s public access, plain and simple,” said Brandon, 38, a Grants Pass native who says the death of his wife three years ago plunged him into a financial crisis that cost him a permanent home.

The city, seeing a menace in its parks, wants unhoused residents like Brandon prohibited from camping on public land.

“When kids practice on that field and there’s needles and stuff like that,” said local state representative Dwayne Younker, “is it safe to have a kid play in the park where there’s a tent 20 feet away? I don’t know what the people in the tent are doing.”

A debate over homeless encampments familiar to many communities heads to the U.S. Supreme Court on Monday, where the justices will confront a rising tide of unhoused Americans and punitive steps cities like Grants Pass are increasingly taking to address it.

In 2013, the Grants Pass city council attempted to ban anyone “from using a blanket, pillow or cardboard box for protection from the elements” while sleeping outside under threat of civil citation.

Two federal courts put the measure on hold after finding it “cruel and unusual punishment” under the Eighth Amendment to ticket people with no alternative to survive.

“Involuntarily homeless people are punished for engaging in the unavoidable acts of sleeping or resting in a public place when they have nowhere else to go,” a district court concluded in 2020.

There are no public homeless shelters in Grants Pass, which has a population of nearly 40,000. An estimated 600 residents are experiencing homelessness.

“We all want to solve homelessness, but criminalizing our neighbors who’ve been forced to live outside is not the way to do it. It will not work; it will make matters worse,” said attorney Ed Johnson at the Oregon Law Center, which represents a group of Grants Pass homeless residents.

In City of Grants Pass v. Johnson, the nation’s highest court is being asked to decide whether ticketing homeless people is patently unconstitutional — the most significant legal dispute over homelessness in America in more than 40 years.

“This case is about giving cities the tools that they need to address the urgent homelessness crisis,” said Theane Evangelis, an attorney representing the city before the Supreme Court. “We believe that it’s cruel to allow these conditions to continue, and that cities need to have the flexibility to address all of the circumstances as they work on long term solutions to homelessness.”

The case also has sweeping implications for those living on the streets, advocates say.

“The stakes are really high,” said Ann Olivia, CEO of the National Alliance to End Homelessness. “What the data tells us, what the evidence tells us, what our humanity tells us, is that moving people around because you don’t want to see them is not the answer.”

Soaring home and rent prices have eaten into incomes and priced some people out of the market. The situation has been compounded by sunsetting COVID relief programs; an ongoing mental health and drug abuse crisis; and, an aging population without retirement savings.

Adding to that financial burden — and giving some people a criminal record — by ticketing them for camping is counterproductive, homeless advocates contend.

“The reality is, the only thing that works is more permanent affordable housing,” said Johnson. “If we prevail in this case, our homeless problem is still going to be there. It just means that we can’t criminalize people while they’re homeless.”

Helen Cruz, an unhoused Grants Pass native, knows the indignity first hand. Over five years living in city parks before a nearby church took her in, she says she received more than $5,000 in camping related fines.

“I was holding down two jobs when I was out here, and it’s still not enough to be able to rent a place,” she said. “The terms of low income housing here is $1,000 a month, and that’s not workable either.”

Still, from Phoenix, to Los Angeles, to Seattle, city leaders and law enforcement groups — members of both political parties — have joined Grants Pass in urging the justices to make it easier to clear tent encampments from the streets.

“Cities need to have these ordinances so that they can help incentivize people to accept offers of help,” Evangelis said. “That’s what these laws do.”

In its brief to the high court, Grants Pass says lower courts created “a judicial roadblock preventing a comprehensive response to the growth of public encampments in the West” and that the situation threatens “crime, fires, the reemergence of medieval disease, environmental harm, and record levels of drug overdoses and deaths on public streets.”

“The cities are saying they don’t have clarity on this issue,” said Austin VanDerHeyden, a municipal affairs analyst with the Goldwater Institute. “It’s more ‘cruel and unusual’ to punish someone the way they are currently existing — the way that they’re being forced to live on the street currently is not compassionate.”

Grants Pass Police Chief Warren Hensman said many law enforcement agencies feel caught in the middle and need to be able to enforce the law.

“We have community members in Grants Pass that are afraid to come their parks. We’ve had shootings in our parks. We have fights in our parks, chronic drug abuse in our parks. So much of our citizenry are not walking through our parks,” he said.

“The problem is much more than the police department. It’s much more than a city. It’s really a state and national problem to come together and work on,” he said.

Some social service providers say local ordinances like a camping ban would provide incentive to homeless people to take advantage of existing resources.

“The big question is, is there nowhere else to go? Or Is there just nowhere else that they want to go?” said Brian Bouteller, director of Grants Pass Gospel Rescue Mission, the only private homeless shelter in town, which has provided warm beds and meals to the needy for more than 40 years.

The facility — which has 78 beds to house homeless men — is only half full.

“We’ve seen a drop in our residency, and we’ve seen an increase in people in our parks and freeway underpasses and that kind of stuff in places where they ought not be,” because the courts put the camping ban on hold, he said.

The Supreme Court’s decision, which is expected by the end of June, is expected to lay out guidelines for how cities can regulate homeless encampments going forward.

Helen Cruz and Brandon say, for them, a lot is on the line.

“If I don’t feel like I belong, I’m going to feel like an outsider, and then I’m going to want to continue doing the same thing,” said Brandon as he erected his tent in centerfield of Morrison Park, “because there’s no reason to thrive for anything different.”

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