Is homelessness a crime? The answer, of course, should be no. Unfortunately, the Supreme Court on Friday agreed to review a case asking this question, and there is every reason to fear that the conservative justices will allow governments to criminalize sleeping in public spaces even if people have nowhere else to go be able to. to go.

In the case of Johnson vs. City of Grants Pass, it concerns a local ordinance that states: No person shall sleep on public sidewalks, streets or alleys at any time for individual and public safety reasons. The law also prohibits homeless people from using blankets, pillows or cardboard boxes for protection from the elements.

A panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit ruled this unconstitutional, concluding that the government cannot criminally or civilly punish people for being unhoused or for having bedding. The court based its decision on the resulting 2018 ruling in the case of Martin vs. Boise, which held that the 8th Amendment’s protections against cruel and unusual punishment prohibit the imposition of criminal penalties for sitting, sleeping, or lying outside on public property on homeless people who cannot obtain shelter. .

The Supreme Court rejected Martin vs. Boise, but was expected to accept Grants Pass

case. When the full 9th ​​Circuit Court of Appeals narrowly declined to review the panel’s decision in the last case, the court’s Republican-appointed judges strongly opposed it and could not have urged the Supreme Court’s review more strongly.

Furthermore, even Democratic officials such as Gov. Gavin Newsom and the city attorneys of Los Angeles and San Francisco urged the Supreme Court to reverse the 9th Circuit.

It is understandable that these officials want more power to address the problem of homelessness. But the solution cannot lie in punishing or criminalizing the homeless.

The 9th Circuit got it exactly right. Every person needs to sleep. When there is not enough housing or shelter for the people living in a city, as is the case throughout California, people have no choice but to sleep on sidewalks and in parks and use blankets and cardboard for warmth.

It is cruel and unusual to punish people for behavior they cannot avoid. As 9th Circuit Judge Marsha Berzon explained, punishing “just sleeping” is unconstitutional

somewhere

in public when you can’t do that anywhere else.

In the case of Robinson vs. California in 1962 the Supreme Court ruled that the 8th

Eighth

The amendment does not allow the government to punish someone for a status he or she cannot change. In particular, the court ruled that a person cannot be criminally punished for being addicted to narcotics, which would be the same as making it a crime to be “mentally ill, leprous, or suffering from venereal disease.”

In both the Boise and Grants Pass cases, the 9th Circuit ruled that laws making it a crime to sleep in public impermissibly punish homeless status. Criminal law exists to punish people who choose to break the law, not for behavior that is not a choice.

None of this denies the challenges cities face in dealing with homelessness. But as Los Angeles demonstrates in reducing its unhoused population under Mayor Karen Bass, governments can address this problem without resorting to the criminal code. It is worth noting that the 9th Circuit explicitly recognized the right of cities to clear encampments and prevent the use of tents on public property. Most importantly, states, counties and cities must find ways to provide adequate housing and shelter.

However, I fear that the conservative justices will choose to give governments the power to use criminal laws against their unhoused populations and limit protections for the 8th.

Eighth

Amendment thereto. That will not happen

reduce

homeless

or make it disappear, or even get better,

but it will affect the constitutional rights of everyone.

Erwin Chemerinsky is a writer for Opinion and dean of the UC Berkeley School of Law. His latest book is

Worse than nothing

: The dangerous fallacy of originalism.