Grants Pass, a town of 40,000 souls on Oregon’s scenic Rogue River, may be the only place in the world where “Neanderthal” is a compliment. During the 1920s, the town’s locals decided to boost tourism at the nearby Oregon Caves National Monument by forming a “Caveman Club” whose members donned Alley Oop garb at local celebrations. The city later renamed its Rogue River Bridge the Caveman Bridge; since 1971, a 17-foot fiberglass Caveperson statue has brooded benignly not far from the local In-N-Out Burger.
Even after living in Oregon, off and on, for 30 years, I still tend to drive through a few towns there without looking right or left. One of these is Grants Pass, which has, as the Oregon Encyclopedia delicately puts it,
a troubled social history, with outbreaks of religious intolerance and white supremacist activity. The Ku Klux Klan was active throughout Oregon in the 1920s, with an estimated Grants Pass membership in the hundreds. The Klan had a short-lived resurgence in Grants Pass in the 1980s and 1990s, and the area was targeted for an Aryan Nations’ organizing drive, canceled after an anti-racism protest in the city drew 1,500 marchers in 1995. Militia activity spilled over into Grants Pass as well, most recently involving demonstrations by the Oath Keepers group.
Whatever its image may be, the city in 2024 bids fair to become the nationwide face of non-hospitality. Today, it will come before the Supreme Court to defend an “anti-camping” law designed (in the words of one of its sponsors) “to make it uncomfortable enough for [homeless people] in our city so they will want to move on down the road.”
If discomfort was their aim, the “anti-camping” ordinances’ authors achieved it. It is currently unlawful in Grants Pass to be anywhere in public with “bedding, sleeping bag, or other material used for bedding.” “Campers” don’t need to erect tents or shelters; merely holding a blanket violates the law. There can be no sleeping in public parks or other public property, and cars cannot be parked for more than two hours in public parks after midnight. No one can sleep in “any pedestrian or vehicular entrance to public or private property abutting a public sidewalk.” Anyone found “camping” or sleeping can be “immediately removed” from the premises and subject to a fine of $75 (for merely sleeping) or $295 (for “camping”). These fines are bolstered by hefty “collection fees” if not paid promptly. Though the fines are “civil,” a homeless person with two unpaid fines may be subject to an “exclusion order”—and may be fined and jailed for violating that order.
Homeless people in Grants Pass might try to find somewhere to shelter legally on a chilly night, but that quest is problematic. The city doesn’t maintain public shelters; it has a “sobering center” where intoxicated people can sober up, a temporary shelter for homeless youths, and a “warming center” that operates only on nights that fall below freezing (and doesn’t feature beds). Meanwhile, a church-supported “Gospel Rescue Mission” allows homeless individuals to stay—if they agree to work six days a week at shelter-assigned jobs, not to seek other employment while staying there, and not to smoke, drink, or engage in “intimate relationships.” Women may stay at the Mission with their children; men may not bring their children with them. Residents must also attend Christian services twice each weekday and once on Sunday.
The issue in City of Grants Pass v. Johnson is whether the high court will overturn Martin v. City of Boise, a 2019 decision in which the Ninth Circuit (which covers most of the American West) held that “as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property.” In other words, localities that do not provide shelters for the homeless can’t threaten them with jail for the mere act of sleeping outside.
The Martin precedent is controversial; when the Ninth Circuit refused to rehear it en banc, one dissenting judge protested that
[o]ur jurisprudence in this case is egregiously flawed and deeply damaging— at war with constitutional text, history, and tradition, and Supreme Court precedent. And it conflicts with other circuits on a question of exceptional importance—paralyzing local communities from addressing the pressing issue of homelessness, and seizing policymaking authority that our federal system of government leaves to the democratic process.
“Paralyzing” cities and “seizing” policymaking authority are serious charges, but (as a writer for Harvard Law Review pointed out in 2019) they are overstated at best: “Under Martin, cities can clear homeless camps, arrest those who refuse to leave, and force those arrested to show that shelters are full. Put simply, the panel left cities ample power to police and punish homeless people, as well as regulate and restrict their access to public space.” In essence, what cities and towns can’t do is just announce that other Americans have to leave town or go to jail.
The Grants Pass case has attracted support from states, localities, merchant groups, and religious bodies around the nation, but most particularly in the West. Not all of these local authorities, they claim, want to be quite as aggressive against their homeless population as Grants Pass—but most want the justices to cut them slack in dealing with their homeless population.
The most conservative recent measure of homelessness in the U.S. is the Department of Housing and Urban Development’s January 2023 “Point in Time Estimate of Homelessness,” a nationwide count of the unhoused on one night of the year; for 2023, the HUD count was 653,100—more than the population of Wyoming. Of the top five U.S. states by “unsheltered” homeless rate (meaning the rate of those sleeping outdoors, in vehicles, or in other places not designed for shelter), all five–California, Oregon, Hawaii, Arizona, and Nevada—are in the Ninth Circuit; California alone accounts for 30 percent of the nation’s homeless population.
Homelessness stems from many causes, of course. Among them are the soaring cost of housing, the holes in a rickety national healthcare system, the persistent problems of poverty, low wages, domestic violence, drug abuse, mental illness, alcoholism, and the aftermath of the COVID-19 pandemic. Most of these things are not within the control of city governments—and even those that are can’t be changed quickly or easily. So, authorities—whether of Grants Pass or San Francisco—can be forgiven for chafing when asked to deal with the unhoused population and may resent federal courts for, as the dissenting judge said, “seizing policymaking authority that our federal system of government leaves to the democratic process.”
The challenge in Martin v. City of Boise is the meaning of the Eighth Amendment’s prohibition on “cruel and unusual punishment” and “excessive fines.” The city of Grants Pass argues that courts should no longer ask whether a criminal law is substantively “cruel and unusual” but only whether the punishment itself was cruel and unusual.
To understand this argument, imagine Detectives Bunk and McNulty coming to your home in Grants Pass and slapping on the cuffs: traffic cameras show that you made a rolling stop at a nearby crossroads. Under a new “tough on crime” policy, this offense carries (let’s say) a possible fine of $1 million and between 12 and 20 years in prison.
Outrageous! You respond as the cuffs tighten. Twelve to 20 for easing through a stop? Cruel and unusual!
Hardly, says the city’s lawyer! There’s nothing unusual about a prison sentence! We hand them out every day! Maybe “rolling stop” is an unusual crime to punish this way—but the Eighth Amendment only forbids “unusual punishments,” not “ordinary but harsh sentences.” That your sentence seems a trifle excessive for this particular offense is irrelevant—the Eighth Amendment (as the Grants Pass city brief argues) covers only methods of punishment, not which activities are crimes. If the state wants to throw people in chokey for wearing white after Labor Day, in other words, the Eighth Amendment is no obstacle—as long as the state doesn’t punish this fashion crime with the cat o’ nine tails or the bastinado.
This is not the law as it is today. In a 1962 case, Robinson v. California, the Supreme Court invalidated a state statute that made it a crime to “be addicted to the use of narcotics.” Justice Potter Stewart, writing for a plurality of the Court, reasoned that “one day in prison for the ‘crime’ of having a common cold” would be cruel and unusual. In other words, making it a crime simply to be something rather than doing something can be a “cruel and unusual” punishment. The Robinson precedent is controversial, and six years after that decision, the Court held that punishing alcoholics for “public intoxication” was not an Eighth Amendment violation—even though alcoholics might be addicted to alcohol, four justices wrote, they were facing punishment for the act of appearing in public, not the “status” of alcoholism. Grants Pass offers the Supreme Court’s Trump-enhanced conservative majority the chance, if they wish, to rewrite the meaning of the Eighth Amendment and eradicate the idea of “status” crimes as “cruel and unusual punishments.” That decision would be radical and potentially dangerous—so much so that localities such as San Francisco and Los Angeles, as well as the federal government, have been careful to ask the Court to limit the Martin precedent without gutting the Eighth Amendment.
Over the past 20 years, as the Court has moved steadily toward the right, its concern for the powerless and the poor in our society has steadily receded. If poor people can’t find shelter in their hometowns, the Court may decide that they should just move on down the road.
