Will the Supreme Court Criminalize Homelessness?

The Supreme Court could decide this month if local governments can criminalize sleeping in public spaces. Here’s what you need to know.
Sam McCann Senior Writer
Jun 06, 2024

The United States Supreme Court is expected to rule this month on whether local governments can criminalize sleeping in public spaces. The decision will have major implications for how jurisdictions across the country approach unhoused populations amid a growing housing crisis.

What’s the case?

Grants Pass, Oregon, a former logging town, began policing public sleeping more aggressively in 2013 following complaints about an increased number of people experiencing homelessness staying in the area. Police would hand out citations to people who were unhoused for violating local ordinances that prohibited camping in public parks. If someone was repeatedly issued citations, police could ban them from the park. And if people violated that ban, they were subject to arrest and jail time. Even if someone was not arrested, they could accumulate hundreds of dollars in fines they could not afford to pay. If people left their belongings in the park—even if only to challenge the tickets—their possessions could be taken or impounded.

Ultimately, in 2018, three people experiencing homelessness challenged the ordinances on Eighth Amendment grounds, claiming that it is cruel and unusual to fine or jail someone for sleeping on public land when the city does not provide any adequate public shelter. There is precedent for their claim: in a similar case in 2018, in Boise, Idaho, a federal court ruled that this kind of criminalization was unconstitutional.

What is Grants Pass’s approach to homelessness?

Grants Pass legislators want to address the visibility of homelessness, not its root causes. The town’s economy relies on tourism tied to river rafting and vineyards. When the town began ramping up enforcement and criminalization in 2013, Lily Morgan, the city council president, said, “The point is to make it uncomfortable enough for them in our city so they will want to move on down the road.”

That flawed approach to homelessness—viewing it as a public nuisance that requires policing, rather than a public need that requires services—extends well beyond Grants Pass. From 2022 to February 2024, New York City Mayor Eric Adams launched nearly 8000 sweeps of encampments of unhoused people. But an audit found that just three of the nearly 2,000 people caught up in those sweeps between March 21, 2022, and November 30, 2022, landed in permanent housing. Meanwhile, in Los Angeles, police have repeatedly raided unhoused communities, including a raid in March 2021 in which more than 400 officers destroyed an encampment in Echo Park Lake, arresting or detaining more than 180 people and brutalizing others. Evidence shows the Los Angeles Police Department raid did not result in people receiving permanent housing; instead, the operation merely scattered people, leaving many still unhoused and taxpayers with a bill of more than $2 million.

What happens when homelessness is criminalized?

It hurts public safety. According to a study, prosecuting people for low-level crimes, like public sleeping, may increase the likelihood of future criminal behavior because criminal histories have collateral consequences. Policing visible poverty is a flawed, broken-windows-style approach that disregards what research has proven builds safety. It also disregards the dignity of people criminalized for simply trying to survive.

It drains public coffers, too. Albuquerque, New Mexico, spent about $1 million over three years to remove property belonging to people experiencing homelessness. In a city of about 500,000 people, that’s nearly $2 per city resident spent on property destruction. The effort, which violated city policy, came as the number of people experiencing homelessness in Albuquerque climbed in line with national trends.

Criminalizing poverty also perpetuates cycles of homelessness and incarceration while deepening racial inequity. The rate of homelessness among people in jail is 11 times higher than in the community, and formerly incarcerated people are nearly 10 times more likely to experience homelessness than the general public. Black and Indigenous people are more likely to experience homelessness than other racial groups, and the criminalization of homelessness compounds their overrepresentation in the criminal legal system. For instance, in Los Angeles County, Black people make up about eight percent of the total population but 34 percent of the unhoused population.

The increased criminalization further contributes to the danger people experiencing homelessness face. They have an increased risk of experiencing victimization and violence and are dying at increasing rates than previously from lack of access to care and from exposure. By sending cops and relying on prosecutors to deal with homelessness, rather than sending support services, Grants Pass and cities across the country are perpetuating this cycle.

Why is this happening now, and what’s at stake?

Homelessness is on the rise nationwide. About 653,000 people were experiencing homelessness at the end of 2023, a 12 percent increase from 2022. There has also been a dramatic rise in evictions, with more than 1,131,000 incidents in the past year. In 2022, half of all renters were spending more than 30 percent of their income on rent, and the number of “affordable” units renting at under $600 a month had plummeted by nearly 23 percent in the prior decade.

As homelessness surges, so, too, have laws criminalizing people for visibly experiencing it. One survey sampling 187 cites found that city laws prohibiting sleeping in public increased 50 percent between 2006 and 2019. Almost every state has at least one law that restricts the conduct of people experiencing homelessness, such as panhandling, loitering, living in vehicles, or sharing food or water in public spaces.

Legislators are trying to expand those laws rather than address the root causes of homelessness. In California, Senate Bill 1011 would have made it a crime to sit, lay, or sleep on a street or sidewalk, but it was voted down in committee (Vera was part of the coalition that successfully opposed the bill). In Florida, Governor Ron DeSantis wants to put people experiencing homelessness into designated camping areas; former President Donald Trump has proposed doing the same on a national scale.

Against the backdrop of a national spike in evictions that is displacing more and more people, a Supreme Court decision that criminalizes people experiencing homelessness could disincentivize cities from pursuing real solutions to the housing crisis. Instead, like in Grants Pass, they could choose to harass people in the hope that they “move on down the road.”

How should cities and states tackle homelessness?

While homelessness is an emergency in communities across the country, experiencing homelessness should never be a criminal offense. Most people do not choose to be homeless, with studies showing that most homelessness is due to unmet mental health needs, physical illness, economic marginalization, and housing costs. Programs that provide housing, case management, and behavioral healthcare show promise in breaking cycles of homelessness. Simply providing supportive housing—as common sense a solution as it seems—is also a cost-effective one. In Los Angeles County, for example, it costs an average of $548 per day to incarcerate a person in a mental health unit, compared to just $207 to provide housing and community treatment. In New York City, the Corporation for Supportive Housing found that more than 2,500 people held on Rikers Island each year need access to supportive housing. The city spends $1.4 billion to incarcerate them, while it would cost just $108 million to provide them with supportive housing.

Prosecutors can also use diversion programs to break dangerous cycles of homelessness and incarceration. For instance, in Indianapolis, rather than jumping straight to seeking incarceration for all, Marion County Prosecutor Ryan Mears works with community-based organizations to identify people charged with crimes who could benefit from a diversion program that would address their housing needs. If a person is eligible for the program, they meet with prosecutors and craft a three-month plan to help stabilize their lives. If they meet their goals, Mears’s office dismisses the charges. Prosecutors nationwide can institute similar programs in lieu of approaches that make securing stable housing even more difficult.

Jurisdictions can also lower the barriers to housing that formerly incarcerated people face. Most public housing agencies in the United States have admissions policies that prevent or restrict formerly incarcerated people from living in their housing units, even if that’s where their family lives. But that could be changing soon. The U.S. Department of Housing and Urban Development recently proposed regulations that would prevent people from being automatically denied housing because of their conviction history. Moreover, states like Michigan are considering legislation that would prevent private landlords from discriminating based on arrest or conviction histories. These laws would help break cycles that trap people between poverty and incarceration.

Criminalizing homelessness is not a solution to the housing crisis, nor does it build public safety. Lower courts have already ruled that doing so is illegal, too. The Supreme Court should reiterate that fact and urge municipalities to use the tools we do have at our disposal—like diversion programs, supportive housing, and stable housing access following incarceration—to build safe communities where nobody is displaced.