The Supreme Court Says Safe Streets Are Constitutional

Six Justices reject the progressive idea that laws against homeless encampments are cruel and unusual punishment

WSJ editorial. 

"The conservatives on the Supreme Court rescued progressive cities on the West Coast from themselves on Friday by overruling lower courts that had created a constitutional right to camp on the streets (City of Grants Pass v. Johnson). You’re welcome, San Francisco. 

Homeless advocates challenged a ban on camping on public property by the city of Grants Pass, Ore. Offenses are punishable by a $295 fine and short stints in jail for repeat violations. Such laws are common across the U.S. But the ever-creative Ninth Circuit Court of Appeals ruled in 2018 that such laws violate the Eighth Amendment’s ban on cruel and unusual punishment.

Six Justices on Friday repudiated this dubious constitutional interpretation. Quoting San Francisco Mayor London Breed, Justice Neil Gorsuch writes that the Ninth Circuit’s “misapplication of this Court’s Eighth Amendment precedents” has undermined public safety and made it harder for cities to encourage the homeless to accept shelter.

Since the 2018 decision, progressives have filed lawsuits across western states covered by the Ninth Circuit to block anti-camping laws. Encampments have proliferated. Vagrants have rejected more than half of San Francisco’s offers of shelter, many citing the Ninth Circuit ruling. A Grants Pass shelter says utilization has fallen by roughly 40%.

The Ninth Circuit’s ruling also said that cities can’t clear encampments unless they have more available homeless beds than people on the streets. Judges have added other stipulations. A federal court in Los Angeles ruled that cities must first provide “adequate” shelter, including nursing staff and security.

However, as Justice Gorsuch explains, “the Cruel and Unusual Punishments Clause focuses on the question what ‘method or kind of punishment’ a government may impose after a criminal conviction, not on the question whether a government may criminalize particular behavior in the first place or how it may go about securing a conviction for that offense.”

The three liberal Justices pointed in dissent to the Court’s anomalous Robinson (1962) decision, which blocked a state law that criminalized drug addiction. The Court in that case held that states can’t criminalize the “status” of being an addict, but said that they could punish drug use by those suffering from addiction.

Anti-camping laws don’t criminalize status. They prohibit certain actions. The plaintiffs in Grants Pass sought to extend the Robinson “rule beyond laws addressing ‘mere status’ to laws addressing actions that, even if undertaken with the requisite mens rea, might ‘in some sense’ qualify as ‘involuntary,’ ” Justice Gorsuch writes.

Addressing homelessness is complex, and if people don’t like their leaders’ policies, they can vote them out. Not so federal judges, who Justice Gorsuch writes cannot “begin to ‘match’ the collective wisdom the American people possess in deciding ‘how best to handle’ a pressing social question like homelessness.”

The Court’s ruling is a boon for constitutional federalism, especially for cities in California struggling to contain the crime, drug use and disorder that come with homelessness. Gov. Gavin Newsom supported the Grants Pass appeal, and he should be grateful."