Bad Takes: Recent Supreme Court decision punishes the homeless for being homeless

The court’s Ebenezer Scrooge-like decree is a symptom of the times, as evidenced by one San Antonio politician's recent actions.

click to enlarge Displacing people from homeless encampments may lead to increases in mortality, according to one peer-reviewed medical study. - Shutterstock / Matt Gush
Shutterstock / Matt Gush
Displacing people from homeless encampments may lead to increases in mortality, according to one peer-reviewed medical study.
Editor’s Note: Bad Takes is a column of opinion and analysis.

The majestic equality of the law prohibits the rich and the poor alike from sleeping under bridges, from begging in the streets, and from stealing bread. — Anatole France, “The Red Lily,” 1894

It is in the highest degree incumbent upon us to do the most for those who need the most. ... Common possession is to be maintained as to whatever nature has produced for the common use of men … in the sense of the Greek proverb, ‘All things are common among friends.’ Whatever one can give without suffering detriment should be given even to an entire stranger. — Cicero, “On Moral Duties,” 44 BCE

At least 600,000 Americans lack a fixed nighttime residence.

Texas’ shortage of affordable housing fueled a 12% rise in homelessness last year, according to federal estimates the Texas Tribune reported on in late June. “More than 27,000 Texans didn’t have a permanent roof over their heads in 2023,” the Tribune’s Joshua Fechter wrote. Of those, 11,700 experienced unsheltered homelessness, “meaning they slept in their cars, under bridges or in other places not fit for human habitation.”

The annual Point-in-Time Count is a single-night snapshot of homelessness conducted by hundreds of volunteers every winter, when the cold is likeliest to drive unsheltered folks indoors. The 2024 count tallied 3,372 individuals experiencing homelessness in Bexar County, 249 of them veterans. When asked whether they suffered from psychiatric conditions such as depression, anxiety or schizophrenia, 24% of the total said yes.

Compassion is a natural reaction to the plight of people experiencing homelessness. But on June 28, the U.S. Supreme Court bravely charted another course. The question the justices were asked to resolve by dozens of cities and states was this: can the government fine and jail those who are involuntarily homeless for camping in public parks, even when there are insufficient shelter beds available? Or do such penalties qualify as the infliction of “cruel and unusual punishment,” violating the Constitution’s Eighth Amendment?

In Grants Pass, Oregon, the petitioner in the case, the fines ranged from $295 for a first offense — rising to $537 if left unpaid — to $1,250 and 30 days in jail for criminal trespassing. Six justices said there was no constitutional issue, while three dissented.

Writing for the majority, Justice Neil Gorsuch said that Grants Pass “forbids ‘occupy[ing] a campsite’ on public property ‘for the purpose of maintaining a temporary place to live’. Under the city’s laws, it makes no difference whether the charged defendant is homeless, a backpacker on vacation passing through town, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building.”

Gorsuch said the line! He literally repeated the “majestic” logic that the writer Anatole France parodied back in the late 1800s. And in her dissent, Justice Sonia Sotomayor did my work for me in calling out his bad take.

“The deputy chief of police operations acknowledged that he was not aware of ‘any non-homeless person ever getting a ticket for illegal camping in Grants Pass,’” Sotomayor wrote, dispelling any illusions to the contrary. “Officers testified that ‘laying on a blanket enjoying the park’ would not violate the ordinances, and that bringing a sleeping bag to ‘look at stars’ would not be punished. Instead, someone violates the Ordinance only if he or she does not ‘have another home to go to.’ That is the definition of being homeless.”

“The idea that people choose to live or sleep in public spaces is a myth,” a bevy of organizations dedicated to assisting the homeless wrote in a brief filed in the case. “Nationally, as of 2022, there was a shortage of 188,000 shelter beds for individual adults ... Multiple surveys and studies have shown that the vast majority of those who are unsheltered would move inside if safe and affordable options were available.”

Gorsuch conceded that existing precedent would bar cities from criminalizing someone’s status instead of their conduct. But that’s effectively what the court has now legally sanctioned.

“Infants napping in strollers, Sunday afternoon picnickers, and nighttime stargazers may all engage in the same conduct of bringing blankets to public spaces and sleeping, but they are exempt from punishment because they have a separate ‘place to live’ to which they presumably intend to return,” said a brief from legal scholars cited by Sotomayor.

So, “according to the majority, although it is cruel and unusual to punish someone for having a common cold, it is not cruel and unusual to punish them for sniffling or coughing because of that cold,” Sotomayor explained via a sarcastic analogy. It’s an absurd distinction without a difference.

“Sleep is a biological necessity, not a crime,” the justice summed up. “For some people, sleeping outside is their only option. For people with no access to shelter, the City of Grants Pass punishes them for being homeless. That is unconscionable and unconstitutional. Punishing people for their status is ‘cruel and unusual’ ... The Eighth Amendment prohibits punishing homelessness by criminalizing sleeping outside when an individual has nowhere else to go.”

The Supreme Court’s Ebenezer Scrooge-like decree is itself a symptom of the times. Last month, San Antonio Councilman Manny Pelaez the Compassionate, who’s running for mayor, spent $6,000 out of public coffers to put up signs all over District 8, which he represents, discouraging residents from giving money to panhandlers.

“Panhandling — It’s OK to say NO — for your safety and theirs,” the signs read.

Reminiscent of “Don’t feed the bears,” except, you know, directed at our fellow human beings. How many months’ rent could that $6,000 have supplied to some unfortunate soul?

But that’s nothing compared to the millions tech billionaire Joe Lonsdale has wasted on the disingenuously-named Cicero Institute, a so-called conservative think tank based in Austin. The organization was founded to sully Housing First approaches to homelessness and write model legislation to crack down on encampments.

Sotomayor’s dissent dealt swiftly with punitive claptrap.

“For people with nowhere else to go, fines and jail time do not deter behavior, reduce homelessness, or increase public safety,” she wrote. “In one study, 91% of homeless people who were surveyed ‘reported remaining outdoors, most often just moving two to three blocks away’ when they received a move-along order.”

That’s not a solution. That’s a revolving door of cruelty for its own sake. But it is highly lucrative.

The homeless population of Houston currently owes more than $9.5 million in fines, the Houston Chronicle reported in May. One man, between February 2021 and February 2024, was fined more than $290,000. That’s 941 tickets, amounting to “more than what most Houstonians earn in seven years,” according to the story.

I wish I could tell you that the tough-on-crime crowd was at least sparing homeless kids. But I can’t. A Houston Landing investigation uncovered that school administrators have been suspending thousands of homeless students, in defiance of a bipartisan 2019 law that explicitly forbade them from doing so.

“Despite the repeated violations, the Texas Education Agency has not sanctioned any districts that broke the rules,” the news organization reported.

Guess the law only applies to those least able to comply with it.

“As I witnessed firsthand during my tenure as an outreach worker for the City of San Antonio’s Department of Human Services, encampment abatement often occurs without providing immediate housing or resources for those affected,” Nikketa Burgess wrote for Alamo City news site Deceleration News this spring. She cited a Journal of the American Medical Association study that found “involuntary displacement ... may yield substantial increases in mortality.” What’s more, such displacement “is estimated to worsen overdose and hospitalizations, decrease initiations of medications for opioid use disorder, and contribute to deaths among people experiencing homelessness.”

The bittersweet news is that there are solutions that show remarkable promise, from micro-communities in Atlanta to a Dallas program that helps reunite estranged family members to a $1,000-a-month stipend that Denver used to cut by half the number of homeless residents enrolled in its program.

What’s inarguable, however, is we don’t need to make the lives of the unhoused anymore punishing and traumatic. Whatever fancy legal jargon might be deployed to talk around it, in this country we are greedily criminalizing poverty, and it’s long passed time to bring the homeless inside.

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