Enforcing Anti-Camping Law Violates Eighth Amendment?

The reader of this article may wonder why an article about an anti-camping law is included on our website.  After all, such a law is far more regulatory or nuisance-oriented than addressing traditional criminal behavior, which is true.  There is no personal victim, for example.

The reason is because in so ruling on the City of Grants Pass, Oregon v. Gloria Johnson, et al., the U.S. Supreme Court offered a wonderful explanation of the Eighth Amendment.  This discussion of the Eighth Amendment is helpful for application to other laws and judicial rulings, particularly sentences that may constitute cruel and unusual punishment in violation of the Eighth Amendment.

Grants Pass, Oregon, is home to roughly 38,000 people, among which about 600 are estimated to experience homelessness on any one day.  Like many local governments across the county, Grants Pass has public camping laws that restrict encampments on public property.  

The Grants Pass Municipal Code prohibits activities such as camping on public property and parking overnight in the city’s parks.  Initial violations can trigger a fine, while multiple violations can result in imprisonment.

In a prior ruling, Martin v. Boise (9th Cir., 2022) 920 F. 3d 584, 617, the United States Court of Appeals for Ninth Circuit held that the Eighth Amendment’s Cruel and Unusual Punishment Clause bars cities from enforcing public camping ordinances like these against homeless individuals in a jurisdiction exceeds the number of “practically available” shelter beds.  After Martin v. Boise was issued, many declaratory relief class action civil suits proliferated against cities like Grants Pass to seek a finding that such a law was unconstitutional.

Gloria Johnson, et al., filed a putative class action on behalf of homeless people living in Grants Pass, claiming that the city’s ordinances against public camping violated the Eighth Amendment.  The district court agreed with Ms. Johnson and entered a “Martin v. Boise” injunction prohibiting Grants Pass from enforcing its laws against homeless people in the city.

Applying Martin’s reasoning, the district court found that everyone without shelter in Grants Pass was “involuntarily homeless” because the city’s total homeless population outnumbered its “practically available” shelter beds.  The beds at Grants Pass’ charity-run shelter did not qualify as “available” in part because that shelter has rules requiring residents to abstain from smoking and to attend religious services. 

Grants Pass then filed a petition for certiorari to the U.S. Supreme Court.  Many States, cities, and counties from across the Ninth Circuit urged the U.S. Supreme Court to grant review to assess Martin and the U.S. Supreme Court granted review in response thereto.

In its ruling, the U.S. Supreme Court held that the enforcement of generally applicable laws regulating camping on public property does not constitute “cruel and unusual punishment” prohibited by the Eighth Amendment.  

The Supreme Court explained that the Eighth Amendment’s ban on cruel and unusual punishment “has always been considered, and properly so, to be directed at the method or kind of punishment” a government may “impose for the violation of criminal statutes.” 

Powell v. Texas (1968) 392 U.S. 514, 531-532.  It was adopted to ensure that the new Nation would never resort to certain “formerly tolerated” punishments considered “cruel” because they were spread “terror, pain or disgrace” and considered “unusual” because by the time of the Amendment’s adoption they had “long fallen out of use.” Bucklew v. Precythe (2019) 587 U.S. 119, 130.

In other words, the focus of the Eighth Amendment analysis is not whether the government may criminalize certain behavior in the first place, but what “method or kind of punishment” a government may impose after a criminal conviction. Powell, supra.

Therefore, the U.S. Supreme Court held that it could not find that the punishment Grants Pass imposed here qualified as cruel and unusual punishment.  After all, the city imposed only limited fines for first-time offenders, an order temporarily barring an individual from camping in a public park for repeat offenders, and a maximum sentence of 30 days in jail for those who later violate an order.  Such punishment is not designed to spread “terror, pain or disgrace.” Bucklew, supra.  

Nor are such punishments unusual because similarly limited fines and jail terms have been and remain among “the usual modes” for punishing criminal offenses throughout the country.  Pervear v. Commonwealth (1866) 72 U.S. 475, 480.