Laws that target the homeless do not violate the Eighth Amendment

This case asks whether it violates the Eighth Amendment's prohibition against cruel and unusual punishments to make it unlawful to sleep or camp out on public property. The real issue is whether the Eighth Amendment makes it illegal to punish homeless people for public encampments.

The case is City of Grants Pass v. Johnson, issued by the Supreme Court on June 28. The Court rules, 6-3, that the law against public encampments does not violate the Eighth Amendment. Justice Gorsuch starts off the opinion with a lengthy discussion of homelessness problem in the United States, occasionally referring to them as "unsheltered." We then get to the legal issues, where Gorsuch clarifies what the Cruel and Unusual Punishment clause of the Eighth Amendment really means: it "was adopted to ensure that the new Nation would never resort to any of [the draconian] punishments or others like them." The clause "focuses on the question what 'method 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."

Is this a new framework for Eighth Amendment cases? I am sure a legal scholar will figure that out. Framing the issue that way provides the result: the Eighth Amendment is not offended when the government passes laws that allow the police to arrest homeless people for camping out in public. The question is not whether the government should outlaw this behavior but whether the punishments are cruel. They are not, the majority says, because in this case the initial offense is a fine and then punishment escalates after that, up to 30 days in jail. These are not atypical punishments for this behavior, the majority finds. Laws like this are constitutional.

Justice Sotomayor writes the dissent on behalf of Justices Kagan and Jackson. (These 6-3 rulings are going to be the norm for the next few years, until someone leaves the court and is replaced by an ideological opposite). Sotomayor writes that for some people, sleeping outside is their only option, and that laws in this case essentially punish people for being homeless. "This is unconscionable and unconstitutional. Punishing people for their status is 'cruel and unusual' under the Eighth Amendment," she writes.

The only precedent that potentially speaks to this issue is Robinson v. California, a 1962 Supreme Court case that held it violated the Eighth Amendment when the government criminalized drug addiction, essentially punishing people over their status. The 2024 Court is not the 1962 Warren Court, the most liberal in American history. I would note that all of the Justices who served on the Court in 1962 are dead, and all of their replacements are dead as well. This is a very different Supreme Court than the Warrren Court. The dissenters note that "This Court has repeatedly cited Robinson for the proposition that the 'Eighth Amendment ... imposes a substantive limit on what can be made criminal and punished as such."

The majority deals with Robinson by arguing that public camping ordinances are nothing like laws that criminalize drug addiction. The majority does not overrule Robinson, but it might do so someday. Gorsuch notes that the parties in Robinson barely framed that issue as an Eighth Amendment one and that the Court in 1962 turned it into an Eighth Amendment issue on its own. We know this because the the majority reviewed the parties' briefs in Robinson, which are on file somewhere at the Supreme Court. Justice Thomas would overrule Robinson right now. What it all means is the Robinson precedent has been whittled down to its facts.