Will the Supreme Court decide that criminalizing homelessness is constitutional? | Opinion

Earlier this month, the Supreme Court agreed to hear the case of Grants Pass v. Johnson. In doing so, it will consider whether the criminalization of homelessness (outlawing unavoidable activities unhoused people engage in to survive) is constitutional. The justices will no doubt consider the centuries’ old meaning of the Eighth Amendment’s prohibition on “cruel and unusual punishment.”

However, it’s worth taking a moment to consider how these laws are cruel and unusual under our modern-day sensibilities because they are, after all, policy choices our elected officials have enacted and choose to enforce.

For starters, criminalization is plainly cruel because people experiencing homelessness have nowhere else to go. No city in California has enough beds to shelter or affordable homes to house everyone living on the street. Further, these laws have disturbing parallels to their segregationist predecessors like Sundown Towns, so-called “Ugly” laws and Anti-Okie laws which were used to bar people of color, people with disabilities and people living in poverty from public spaces. A 2015 report out of San Francisco confirmed that 74% of unhoused people were approached by police and 69% were cited in the year prior — statistics that, if uncovered in reviewing police enforcement in other historically marginalized communities, we would all agree constituted civil rights violations.

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Criminalization is also cruel because it has clear negative health impacts on people experiencing homelessness. The experience of criminalization and the attendant encampment “sweeps” is torturous. Police departments and municipal workers regularly seize and destroy people’s belongings, including tents they use to stay dry, blankets and sleeping bags they use to stay warm and medication they use to treat life-threatening health conditions like HIV.

It’s no surprise that researchers confirmed “sweeps” negatively affect health outcomes and increase the risk of mortality for people experiencing homelessness.

Finally, criminalization is rather unusual when you consider how ineffective it is. It is quite possibly the most expensive and ineffective policy localities can pursue. The cost of incarcerating an unhoused person is approximately $106,000 per year — and that does not account for policing and court administration expenses. The cost of housing and providing wraparound services to someone in permanent supportive housing on the other hand? Approximately $38,000.

Criminalization serves to drive people deeper into homelessness. Fines and court fees associated with citations divert necessary funds away from security deposits and rent while criminal records with misdemeanors can dissuade potential employers and landlords.

In the months leading up to oral arguments before the court, our elected officials will seek to justify their cruelty with false narratives. They’ll say “the stick of criminality is necessary to offer the carrot of shelter and housing,” all while knowing full well that there aren’t enough shelter beds, housing units or rental subsidies to go around. They’ll use dog-whistle rhetoric to convince you that unhoused people are dangerous criminals. However, the “crimes” they seek to enforce include sitting down, lying down and sleeping — biologically unavoidable behavior. Or maybe they’ll suggest that anti-homeless laws are necessary to provide for the “health and safety” of our communities.

Giving unhoused people citations and telling them to “move on” just pushes them to another campsite elsewhere in town. It does not promote their health and safety — nor ours.

With Grants Pass before the court, now is a good time to remind ourselves that criminalization was and continues to be a policy decision — a choice. Even if the justices decide it is constitutionally permissible, enacting anti-homeless laws and enforcing them would remain a choice. But no interpretation of the framers’ intent will change the fact that criminalization is cruel, costly and ineffective.

To end homelessness, we must choose compassion and understanding over cruelty, and, of course, home keys over handcuffs.

Ron Hochbaum is an assistant clinical professor of law and director of the Homeless Advocacy Clinic at the University of the Pacific McGeorge School of Law.