This Supreme Court Case on Homelessness May Limit Prisoner
When the Supreme Court hears the case of Grants Pass v. Johnson later this month, the justices will consider how far cities can go in policing homeless people. But just as the court swept away a half-century of precedent by overturning Roe v. Wade, the justices could use this case about homelessness to upend how we interpret four key words in the Bill of Rights — “cruel and unusual punishments.” Their decision could have ramifications across a wide swath of the criminal justice system, including prison conditions and the death penalty.
The case is about whether the city of Grants Pass, Oregon, violates the Constitution’s Eighth Amendment when it arrests, fines and even jails people without homes for sleeping outside. A lower federal court recently ruled that punishing people for doing something they cannot help is cruel and unusual punishment. “As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter,” the Ninth Circuit Court of Appeals wrote.
Grants Pass appealed the ruling up to the Supreme Court, which will hear oral arguments on April 22, positing that the courts have no business telling cities what behavior they can regulate. The Eighth Amendment, they say, applies to punishments levied after a crime, not laws that establish what is a crime in the first place, and besides, fines and jail time are hardly cruel or unusual.
At the heart of this debate are two very different ways of reading the Eighth Amendment.
First, there’s originalism. In recent sweeping decisions on abortion and guns, conservative justices have focused on what the Constitution’s language meant to the men who wrote it in the 1780s.
But other judges and scholars argue for a “living” Constitution, whose meaning should change as the world changes.
The Eighth Amendment barred “cruel and unusual punishments” at a time when the phrase referred to drawing and quartering or public dissection. More than a century and a half later, in 1958, the Supreme Court took the case of Albert Trop, who had been convicted of deserting the military while serving in Morocco during World War II — and was punished with the loss of his citizenship. The court ruled that the punishment was “cruel and unusual” and declared that the amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”
Since then, the Eighth Amendment’s prohibition on cruel and unusual punishment has become the bedrock upon which a generation of civil rights protections for prisoners and criminal defendants are built — few of which would have been recognizable to George Washington and Alexander Hamilton.
Using the evolving standards argument, federal courts have ruled on access to health care in prison, protection from excessive force and limits on the use of solitary confinement. They have prohibited the death penalty and mandatory life-without-parole sentences for people who are younger than 18 when they commit crimes, as well as executions of people with intellectual disabilities. The language has also served as the basis for decades of decisions requiring that juries consider people’s individual, often trauma-filled lives before deciding whether to send them to death row.
In the Grants Pass case, the Supreme Court could sweep away decades of decisions that limit how far states can go in punishing people who are politically unpopular in ways that past justices have said are unacceptable. In 2008, for example, the Supreme Court barred executions of people who sexually assault children, citing evolving standards. Now Florida has enacted just such a law, while Tennessee and Missouri are considering them — inviting the court to reverse course. Gov. Ron DeSantis’ office said at the time that he was “prepared to take this law all the way to the U.S. Supreme Court to overrule judicial precedents which have unjustly shielded child rapists from the death penalty and denied victims and their loved ones the opportunity to pursue ultimate justice against these most heinous criminals.”
More than 100 scholars and organizations have filed “friend of the court” briefs ahead of oral arguments in Grants Pass v. Johnson. Many argue the court should let these rulings stand and continue to look to contemporary standards when deciding what is cruel and unusual. In one brief on the other side, Republican attorneys general from 20 states urged the justices to throw out the evolving standards interpretation entirely. (Many of them also made similar arguments in a separate case, supporting Alabama’s request to execute a man with an intellectual disability.) Among their reasons are that it “has no discernible end point” and that it requires “judges to act as sociologists.”
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