Is having no housing a crime? U.S. court to decide

Opinion

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This article was published 25/04/2024 (524 days ago), so information in it may no longer be current.

A case before the United States Supreme Court could have serious implications for persons experiencing poverty and homelessness should the highest court side with the city of Grants Pass, which is pushing to restrict camping in public places.

While the outcome of the decision may not directly impact Canadians, it could set a chilling precedent that states have less obligation to provide housing or shelter, while at the same time making it illegal to have none. Why does this matter, and could a decision favouring banning sleeping in public help or hinder larger efforts to reduce encampments and homelessness in general?

The case is question is the City of Grants Pass, Oregon vs. Johnson. The basis of the case is the city wants powers to limit or ban camping in public spaces through tougher bylaws. The city contends it needs such powers to address the unprecedented growth in homelessness that is quickly approaching 700,000 people on any given night in the United States.

This includes the proliferation of the number of encampments that have also grown, especially post-pandemic. In smaller cities like Grants Pass, local housing markets are buckling under the pressure of not being able to provide adequate affordable housing or temporary shelter.

On the side of Johnson, who is represented by a group of persons experiencing homelessness, they counter the court must side with the Eighth Amendment’s assertion that “cruel and unusual punishment” cannot be used as the basis to enforce such a law. This means it would be unduly cruel to fine or jail a person for sleeping in public when there is no housing or support available.

This case is also being heard at a time when there is a growing push to clamp down on homelessness and encampments. As well, it comes amid one of the most devastating housing crises to hit North America in generations.

This has resulted in not only a sharp rise in homelessness but massive levels of unaffordability of housing for a broad range of people.

In short, the court must examine both the inability of the state to provide housing by granting powers to punish those with none and no likelihood of finding such. This runs counter to the calls that housing is a fundamental human right. Yet, as in this case, there are mounting calls to criminalize poverty and homelessness through such by-laws and measures in hope it will solve complex social issues.

The Court might also consider the case of Callahan v. Carey (1979) in which the tables were turned, and Robert Callahan sued the City of New York (on behalf of homeless people) for failing to provide emergency shelter to the needy. In that precedent-setting case, the New York Supreme Court eventually ruled in favor of Callahan, thereby obligating the state to provide immediate shelter. This had a ripple effect across the U.S. by putting cities on notice they had a legal obligation to provide shelter to those most in need.

Over the years, numerous court challenges have been fought to expand the rights of persons experiencing homelessness as well as those wishing to criminalize lack of housing and poverty.

Much of this has played out at the municipal level, where the street enforcement of petty acts such as panhandling, vagrancy, drunk and disorderly etc., allowed cities to manage aspects of unruly acts. However, the courts have not often granted increased power to punish those without housing by making the act of being homeless itself enforceable, especially in cases where there is no housing or temporary shelter. This again has been viewed as cruel and unusual punishment.

There is little doubt that we must find a way in both the U.S. and Canada to greatly reduce the numbers of people without housing and those who are currently using encampments. While much of this is playing out across the border, Canadians should be mindful that we too have been pushing back against persons unhoused. This has certainly been evident in the growing number of people without shelter or access to the support needed to remain housed.

Should the court side with the City of Grants Pass, it may begin to normalize such acts by placing blame fully on individuals for not finding non-existent housing while somehow absolving the responsibility of the state to provide such.

Ultimately, these types of punitive measures will not solve nor reduce homelessness, it will however shift pressure to the courts to deal with the fallout of being charged for failing to have housing.

Jino Distasio is a professor of urban geography at the University of Winnipeg an expert in housing and homelessness policy.