24

Criminalizing Status, not Behavior

While modern non-death penalty Eighth Amendment cases normally rest on questions of proportionality, a few cases have instead, in the words of Justice Sotomayor, imposed “substantive limits on what can be made criminal and punished as such.” Such limits are controversial and sparse, as the text and purpose of the Eighth Amendment lead primarily towards limits on punishment, rather than limits on what can be criminalized, but they exist.

The most famous and important of such rulings is Robinson v. California (1962). In this case, Robinson had been arrested and charged under an unusual California law that not only criminalized not only using narcotics but also being “addicted to the use of narcotics.” Such a law raised constitutional questions, as it lacked the requirement that criminal behavior includes some concrete action. Criminalizing a status, distinct from an additional action (such as using, possessing, buying, or transporting in the context of illegal drugs), was contrary to Anglo-American legal tradition.

The Robinson Court chose to strike down this law along Eighth Amendment grounds:

This statute, therefore, is not one which punishes a person for the use of narcotics, for their purchase, sale or possession, or for antisocial or disorderly behavior resulting from their administration. It is not a law which even purports to provide or require medical treatment. Rather, we deal with a statute which makes the “status” of narcotic addiction a criminal offense, for which the offender may be prosecuted “at any time before he reforms.” California has said that a person can be continuously guilty of this offense, whether or not he has ever used or possessed any narcotics within the State, and whether or not he has been guilty of any antisocial behavior there.

It is unlikely that any State at this moment in history would attempt to make it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease… in the light of contemporary human knowledge, a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.

We cannot but consider the statute before us as of the same category…To be sure, imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the “crime” of having a common cold.

Robinson thus stands for the principle that criminalizing a status likely violates the Eighth Amendment.

Though well-known, Robinson’s impact was limited, given that almost all criminal laws include an action component (though, perhaps, its existence may have prevented states from greater experimentation along these lines). However, the case gained new importance during the rise of homelessness in the 21st century, in particular to public policies addressing homelessness encampments. One common policy response of cities with encampments is to ban “public camping,” which, essentially, criminalizes and provides sanctions for individuals who camp, sleep, or store property on public land. The policy debate over such laws is beyond the scope of this text, though in brief: proponents argue camping ban sanctions can be used to force individuals who need drug treatment or mental health care into receiving those services, while opponents state that banning encampments pushes homeless people elsewhere and does little to solve the underlying problems.

In 2009, a set of homeless plaintiffs sued the city of Boise, Idaho in federal court because they had each fallen afoul of that city’s ban on public camping over the past two years. Their argument, based on Robinson and the Eighth Amendment, employed the following chain of logic:

1. Every individual must sleep — meaning that sleep is a biological imperative akin to breathing or blinking
2. Homeless individuals lack private shelters, and so must either 1) sleep in available shelter facilities or 2) on public property
3. If shelters are full or unavailable to that individual (say, for example, a shelter only accepts women and their children), then a homeless person has no choice but to sleep on public property
4. Punishing people for sleeping on public property thus punishes the homeless not for their actions (since again, they cannot choose not to sleep), but their status, bringing Robinson into play

While the district court rejected these arguments, a panel of the Ninth Circuit Court of Appeals accepted them in 2018, in Martin v. Boise. This decision had an immediate impact on western states that faced the worst problems with homelessness. The decision itself was purportedly narrow in scope, forbidding only the penalizing of sleeping when there are more unhoused individuals in the jurisdiction than available shelter beds. That said, other Ninth Circuit courts relied on Martin to strike down other camping bans if, for example, the only available shelters offered religious instruction. Concerns over what, exactly, Martin required led to considerable uncertainty for policymakers. The most frequent objection, however, came from city leaders who said homeless individuals would use Martin as their justification for rejecting city services (such as drug treatment) or shelter, preferring instead to remain in their encampments.

The increasing tension between cities and the federal courts, the rising salience of homelessness in general and encampments in particular, and the fact that no other circuit applied Robinson to public camping bans led the Supreme Court to take up the issue in the 2023 term. In City of Grants Pass v. Johnson, the Court overturned Martin, holding that the Eighth Amendment did not prohibit public camping bans and that Robinson’s prohibition of criminalizing status did not apply here.

City of Grant’s Pass v. Johnson

603 U.S. 520 (2024)

Facts: Johnson and other homeless plaintiffs in Grant’s Pass, Oregon, had been cited and fined under that city’s law banning public camping. Under the 2018 Ninth Circuit decision Martin v. Boise, which prohibited the application of such bans as cruel and unusual punishment when the number of unhoused individuals in a relevant jurisdiction exceeded the number of available shelter beds, the district court held the city’s laws violated the Eighth Amendment. On appeal, the city tried to argue that it could still ban the use of blankets or tents, if not sleeping per se. A Ninth Circuit Court panel rejected this argument as well, stating that staying warm was as much a biological necessity as sleeping, meaning the law remained a status-based prohibition. The city appealed to the Supreme Court.

Question: Does Grant’s Pass’s ban on public camping violate the Eighth Amendment’s prohibition on cruel and unusual punishment as stated in Robinson v. California?

Vote: No, 6-3

For the Court: Justice Gorsuch

Concurring opinion: Justice Thomas

Dissenting opinion: Justice Sotomayor

JUSTICE GORSUCH delivered the opinion of the Court.

Many cities across the American West face a homelessness crisis. The causes are varied and complex, the appropriate public policy responses perhaps no less so. Like many local governments, the city of Grants Pass, Oregon, has pursued a multifaceted approach. Recently, it adopted various policies aimed at “protecting the rights, dignity[,] and private property of the homeless.” It appointed a “homeless community liaison” officer charged with ensuring the homeless receive information about “assistance programs and other resources” available to them through the city and its local shelter. And it adopted certain restrictions against encampments on public property. The Ninth Circuit, however, held that the Eighth Amendment’s Cruel and Unusual Punishments Clause barred that last measure. With support from States and cities across the country, Grants Pass urged this Court to review the Ninth Circuit’s decision. We take up that task now.

I A

Some suggest that homelessness may be the “defining public health and safety crisis in the western United States” today. According to the federal government, homelessness in this country has reached its highest levels since the government began reporting data on the subject in 2007. California alone is home to around half of those in this Nation living without shelter on a given night. And each of the five States with the highest rates of unsheltered homelessness in the country—California, Oregon, Hawaii, Arizona, and Nevada—lies in the American West.

Those experiencing homelessness may be as diverse as the Nation itself—they are young and old and belong to all races and creeds. People become homeless for a variety of reasons, too, many beyond their control. Some have been affected by economic conditions, rising housing costs, or natural disasters. Some have been forced from their homes to escape domestic violence and other forms of exploitation. And still others struggle with drug addiction and mental illness. By one estimate, perhaps 78 percent of the unsheltered suffer from mental health issues, while 75 percent struggle with substance abuse.

Those living without shelter often live together. As the number of homeless individuals has grown, the number of homeless encampments across the country has increased as well, “in numbers not seen in almost a century.” The unsheltered may coalesce in these encampments for a range of reasons. Some value the “freedom” encampment living provides compared with submitting to the rules shelters impose. Others report that encampments offer a “sense of community.” And still others may seek them out for “dependable access to illegal drugs.” In brief, the reasons why someone will go without shelter on a given night vary widely by the person and by the day.

As the number and size of these encampments have grown, so have the challenges they can pose for the homeless and others. We are told, for example, that the “exponential increase in … encampments in recent years has resulted in an increase in crimes both against the homeless and by the homeless.” California’s Governor reports that encampment inhabitants face heightened risks of “sexual assault” and “subjugation to sex work.” And by one estimate, more than 40 percent of the shootings in Seattle in early 2022 were linked to homeless encampments.

Other challenges have arisen as well. Some city officials indicate that encampments facilitate the distribution of drugs like heroin and fentanyl, which have claimed the lives of so many Americans in recent years. Without running water or proper sanitation facilities, too, diseases can sometimes spread in encampments and beyond them. Various States say that they have seen typhus, shigella, trench fever, and other diseases reemerge on their city streets…

Communities of all sizes are grappling with how best to address challenges like these…

As many cities see it, even as they have expanded shelter capacity and other public services, their unsheltered populations have continued to grow…

The reasons why the unsheltered sometimes reject offers of assistance may themselves be many and complex. Some may reject shelter because accepting it would take them further from family and local ties. Some may decline offers of assistance because of concerns for their safety or the rules some shelters impose regarding curfews, drug use, or religious practices. Other factors may also be at play. But whatever the causes, local governments say, this dynamic significantly complicates their efforts to address the challenges of homelessness.

Rather than focus on a single policy to meet the challenges associated with homelessness, many States and cities have pursued a range of policies and programs. Beyond expanding shelter and affordable housing opportunities, some have reinvested in mental-health and substance-abuse treatment programs. Some have trained their employees in outreach tactics designed to improve relations between governments and the homeless they serve. And still others have chosen to pair these efforts with the enforcement of laws that restrict camping in public places, like parks, streets, and sidewalks.

Laws like those are commonplace. By one count, “a majority of cities have laws restricting camping in public spaces,” and nearly forty percent “have one or more laws prohibiting camping citywide.” Some have argued that the enforcement of these laws can create a “revolving door that circulates individuals experiencing homelessness from the street to the criminal justice system and back.” But many cities take a different view. According to the National League of Cities (a group that represents more than 19,000 American cities and towns), the National Association of Counties (which represents the Nation’s 3,069 counties) and others across the American West, these public-camping regulations are not usually deployed as a front-line response “to criminalize homelessness.” Instead, they are used to provide city employees with the legal authority to address “encampments that pose significant health and safety risks” and to encourage their inhabitants to accept other alternatives like shelters, drug treatment programs, and mental-health facilities.

Cities are not alone in pursuing this approach. The federal government also restricts “the storage of . . . sleeping bags,” as well as other “sleeping activities,” on park lands. And it, too, has exercised that authority to clear certain “dangerous” encampments.

Different governments may use these laws in different ways and to varying degrees. But many broadly agree that “policymakers need access to the full panoply of tools in the policy toolbox” to “tackle the complicated issues of housing and homelessness.”

B

Five years ago, the U. S. Court of Appeals for the Ninth Circuit took one of those tools off the table. In Martin v. Boise, (2019), that court considered a public camping ordinance in Boise, Idaho, that made it a misdemeanor to use “streets, sidewalks, parks, or public places” for “camping.” According to the Ninth Circuit, the Eighth Amendment’s Cruel and Unusual Punishments Clause barred Boise from enforcing its public-camping ordinance against homeless individuals who lacked “access to alternative shelter.” That “access” was lacking, the court said, whenever “‘there is a greater number of homeless individuals in a jurisdiction than the number of available beds in shelters.’” According to the Ninth Circuit, nearly three quarters of Boise’s shelter beds were not “practically available” because the city’s charitable shelters had a “religious atmosphere.” Boise was thus enjoined from enforcing its camping laws against the plaintiffs.

No other circuit has followed Martin’s lead with respect to public-camping laws… After Martin, similar suits proliferated against Western cities within the Ninth Circuit. As Judge Smith put it, “[i]f one picks up a map of the western United States and points to a city that appears on it, there is a good chance that city has already faced” a judicial injunction based on Martin or the threat of one “in the few short years since [the Ninth Circuit] initiated its Martin experiment.”

Consider San Francisco, where each night thousands sleep “in tents and other makeshift structures.” … The city “uses enforcement of its laws prohibiting camping” not to criminalize homelessness, but “as one important tool among others to encourage individuals experiencing homelessness to accept services and to help ensure safe and accessible sidewalks and public spaces.” Judicial intervention restricting the use of that tool, the Mayor continues, “has led to painful results on the streets and in neighborhoods.” “San Francisco has seen over half of its offers of shelter and services rejected by unhoused individuals, who often cite” the Martin order against the city “as their justification to permanently occupy and block public sidewalks.”

An exceptionally large number of cities and States have filed briefs in this Court reporting experiences like San Francisco’s. In the judgment of many of them, the Ninth Circuit has inappropriately “limit[ed] the tools available to local governments for tackling [what is a] complex and difficult human issue.” The threat of Martin injunctions, they say, has “paralyze[d]” even commonsense and good-faith efforts at addressing homelessness. The Ninth Circuit’s intervention, they insist, has prevented local governments from pursuing “effective solutions to this humanitarian crisis while simultaneously protecting the remaining community’s right to safely enjoy public spaces.”

Many cities further report that, rather than help alleviate the homelessness crisis, Martin injunctions have inadvertently contributed to it. The numbers of “[u]nsheltered homelessness,” they represent, have “increased dramatically in the Ninth Circuit since Martin.” And, they say, Martin injunctions have contributed to this trend by “weaken[ing]” the ability of public officials “to persuade persons experiencing homelessness to accept shelter beds and [other] services.” In Portland, for example, residents report some unsheltered persons “often return within days” of an encampment’s clearing, on the understanding that “Martin. . . and its progeny prohibit the [c]ity from implementing more efficacious strategies.” In short, they say, Martin “make[s] solving this crisis harder.”

All acknowledge “[h]homelessness is a complex and serious social issue that cries out for effective…responses.” But many States and cities believe “it is crucial” for local governments to “have the latitude” to experiment and find effective responses. “Injunctions and the threat of federal litigation,” they insist, “impede this democratic process,” undermine local governments, and do not well serve the homeless or others who live in the Ninth Circuit.

C

The case before us arises from a Martin injunction issued against the city of Grants Pass. Located on the banks of the Rogue River in southwestern Oregon, the city is home to roughly 38,000 people. Among them are an estimated 600 individuals who experience homelessness on a given day.

Like many American cities, Grants Pass has laws restricting camping in public spaces. Three are relevant here. The first prohibits sleeping “on public sidewalks, streets, or alleyways.” The second prohibits “[c]amping” on public property. Camping is defined as “set[ting] up … or remain[ing] in or at a campsite,” and a “[c]ampsite” is defined as “any place where bedding, sleeping bag[s], or other material used for bedding purposes, or any stove or fire is placed…for the purpose of maintaining a temporary place to live.” The third prohibits “[c]amping” and “[o]vernight parking” in the city’s parks. Penalties for violating these ordinances escalate stepwise.  An initial violation may trigger a fine. Those who receive multiple citations may be subject to an order barring them from city parks for 30 days. And, in turn, violations of those orders can constitute criminal trespass, punishable by a maximum of 30 days in prison and a $1,250 fine.

Neither of the named plaintiffs before us has been subjected to an order barring them from city property or to criminal trespass charges…

Still, shortly after the panel decision in Martin, two homeless individuals, Gloria Johnson and John Logan, filed suit challenging the city’s public-camping laws. They claimed, among other things, that the city’s ordinances violated the Eighth Amendment’s Cruel and Unusual Punishments Clause. And they sought to pursue their claim on behalf of a class encompassing “all involuntarily homeless people living in Grants Pass.”

The district court certified the class action and enjoined the city from enforcing its public-camping laws against the homeless…the court found, everyone without shelter in Grants Pass was “involuntarily homeless” because the city’s total homeless population outnumbered its“‘practically available’” shelter beds. In fact, the court ruled, none of the beds at Grants Pass’s charity-run shelter qualified as “available.” They did not, the court said, both because that shelter offers something closer to transitional housing than “temporary emergency shelter,” and because the shelter has rules requiring residents to abstain from smoking and attend religious services…

A divided panel of the Ninth Circuit affirmed in relevant part. The majority agreed with the district court that all unsheltered individuals in Grants Pass qualify as “involuntarily homeless” because the city’s homeless population exceeds “available” shelter beds. And the majority further agreed that, under Martin, the homeless there cannot be punished for camping with “rudimentary forms of protection from the elements.”

The city sought rehearing en banc, which the court denied over the objection of 17 judges who joined five separate opinions…

Grants Pass filed a petition for certiorari. A large number of States, cities, and counties from across the Ninth Circuit and the country joined Grants Pass in urging the Court to grant review to assess the Martin experiment. We agreed to do so.

II A

The Constitution and its Amendments impose a number of limits on what governments in this country may declare to be criminal behavior and how they may go about enforcing their criminal laws…

But if many other constitutional provisions address what a government may criminalize and how it may go about securing a conviction, the Eighth Amendment’s prohibition against “cruel and unusual punishments” focuses on what happens next. That Clause “has always been considered, and properly so, to be directed at the method or kind of punishment” a government may “impos[e] for the violation of criminal statutes.”

We have previously discussed the Clause’s origins and meaning. In the 18th century, English law still “formally tolerated” certain barbaric punishments like “disemboweling, quartering, public dissection, and burning alive,” even though those practices had by then “fallen into disuse.” The Cruel and Unusual Punishments Clause was adopted to ensure that the new Nation would never resort to any of those punishments or others like them…

All that would seem to make the Eighth Amendment a poor foundation on which to rest the kind of decree the plaintiffs seek in this case and the Ninth Circuit has endorsed since Martin. The Cruel and Unusual Punishments Clause focuses on the question what “method or kind 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…

Nor, focusing on the criminal punishments Grant Pass imposes, can we say they qualify as cruel and unusual. Recall that, under the city’s ordinances, an initial offense may trigger a civil fine. Repeat offenses may trigger an order temporarily barring an individual from camping in a public park. Only those who later violate an order like that may face a criminal punishment of up to 30 days in jail and a larger fine. None of the city’s sanctions qualifies as cruel because none is designed to “superad[d]” “terror, pain, or disgrace.” Nor are the city’s sanctions unusual, because similar punishments have been and remain among “the usual mode[s]” for punishing offenses throughout the country… Notably, neither the plaintiffs nor the dissent meaningfully contests any of this.

B

Instead, the plaintiffs and the dissent … insist one notable exception exists.

In Robinson v. California (1962), the plaintiffs and the dissent observe, this Court addressed a challenge to a criminal conviction under a California statute providing that “‘[n]o person shall … be addicted to the use of narcotics.’” In response to that challenge, the Court invoked the Cruel and Unusual Punishments Clause to hold that California could not enforce its law making “the ‘status’ of narcotic addiction a criminal offense.” The Court recognized that “imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual.” But, the Court reasoned, when punishing “‘status,’” “[e]ven one day in prison would be … cruel and unusual.”

In doing so, the Court stressed the limits of its decision. It would have ruled differently, the Court said, if California had sought to convict the defendant for, say, the knowing or intentional “use of narcotics, for their purchase, sale, or possession, or for antisocial or disorderly behavior resulting from their administration.” In fact, the Court took pains to emphasize that it did not mean to cast doubt on the States’ “broad power” to prohibit behavior like that, even by those, like the defendant, who suffered from addiction. The only problem, as the Court saw it, was that California’s law did not operate that way. Instead, it made the mere status of being an addict a crime. And it was that feature of the law, the Court held, that went too far…

… historically, crimes in England and this country have usually required proof of some act (or actus reus) undertaken with some measure of volition (mens rea). At common law, “a complete crime” generally required “both a will and an act.” This view “took deep and early root in American soil” where, to this day, a crime ordinarily arises “only from concurrence of an evil-meaning mind with an evil-doing hand.” Measured against these standards, California’s law was an anomaly, as it required proof of neither of those things…

… Bypassing Mr. Robinson’s primary Due Process Clause argument, the Court charted its own course, reading the Cruel and Unusual Punishments Clause to impose a limit not just on what punishments may follow a criminal conviction but what a State may criminalize to begin with. It was a view unprecedented in the history of the Court before 1962. In dissent, Justice White lamented that the majority had embraced an “application of ‘cruel and unusual punishment’ so novel that “it could not possibly be “ascribe[d] to the Framers of the Constitution.” Nor, in the 62 years since Robinson, has this Court once invoked it as authority to decline the enforcement of any criminal law, leaving the Eighth Amendment instead to perform its traditional function of addressing the punishments that follow a criminal conviction.

Still, no one has asked us to reconsider Robinson. Nor do we see any need to do so today. Whatever its persuasive force as an interpretation of the Eighth Amendment, it cannot sustain the Ninth Circuit’s course since Martin… The Court held only that a State may not criminalize the “‘status’ ” of being an addict…

Public camping ordinances like those before us are nothing like the law at issue in Robinson. Rather than criminalize mere status, Grants Pass forbids actions like “occupy[ing] a campsite” on public property “for the purpose of maintaining a temporary place to live.” Under the city’s laws, it makes no difference whether the charged defendant is homeless, a backpacker on vacation passing through town, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building. In that respect, the city’s laws parallel those found in countless jurisdictions across the country. And because laws like these do not criminalize mere status, Robinson is not implicated.

C

If Robinson does not control this case, the plaintiffs and the dissent argue, we should extend it so that it does… the plaintiffs and the dissent insist laws like these seek to regulate actions that are in some sense “involuntary,” for some homeless persons cannot help but do what the law forbids. And, the plaintiffs and the dissent continue, we should extend Robinson to prohibit the enforcement of laws that operate this way— laws that don’t proscribe status as such but that proscribe acts, even acts undertaken with some required mental state, the defendant cannot help but undertake. To rule otherwise, the argument goes, would “ ‘effectively’ ” allow cities to punish a person because of his status. The Ninth Circuit pursued just this line of thinking below and in Martin.

The problem is, this Court has already rejected that view. In Powell v. Texas (1968), the Court confronted a defendant who had been convicted under a Texas statute making it a crime to “‘get drunk or be found in a state of intoxication in any public place.’” Like the plaintiffs here, Mr. Powell argued that his drunkenness was an “‘involuntary’ ” byproduct of his status as an alcoholic. Yes, the statute required proof of an act (becoming drunk or intoxicated and then proceeding into public), and perhaps some associated mental state (for presumably the defendant knew he was drinking and maybe even knew he made his way to a public place). Still, Mr. Powell contended, Texas’s law effectively criminalized his status as an alcoholic because he could not help but doing as he did. Justice Fortas embraced that view, but only in dissent: He would have extended Robinson to cover conduct that flows from any “condition [the defendant] is powerless to change.”

The Court did not agree. Writing for a plurality, Justice Marshall observed that Robinson had authorized “a very small” intrusion by courts “into the substantive criminal law” “under the aegis of the Cruel and Unusual Punishment[s] Clause.” That small intrusion, Justice Marshall said, prevents States only from enforcing laws that criminalize “a mere status.” It does nothing to curtail a State’s authority to secure a conviction when “the accused has committed some act … society has an interest in preventing.” That remains true, Justice Marshall continued, regardless whether the defendant’s act “in some sense” might be described as “‘involuntary’ or ‘occasioned by’” a particular status… because the defendant before the Court had not been convicted “for being” an “alcoholic, but for [engaging in the act of] being in public while drunk on a particular occasion,” Robinson did not apply.

This case is no different from Powell. Just as there, the plaintiffs here seek to expand Robinson’s “small” intrusion “into the substantive criminal law.” Just as there, the plaintiffs here seek to extend its rule beyond laws addressing “mere status” to laws addressing actions that, even if undertaken with the requisite mens rea, might “in some sense” qualify as “ ‘involuntary.’ ” And just as Powell could find nothing in the Eighth Amendment permitting that course, neither can we…

To be sure, and once more, a variety of other legal doctrines and constitutional provisions work to protect those in our criminal justice system from a conviction. Like some other jurisdictions, Oregon recognizes a “necessity” defense to certain criminal charges. It may be that defense extends to charges for illegal camping when it comes to those with nowhere else to go. Insanity, diminished-capacity, and duress defenses also may be available in many jurisdictions. States and cities are free as well to add additional substantive protections. Since this litigation began, for example, Oregon itself has adopted a law specifically addressing how far its municipalities may go in regulating public camping. For that matter, nothing in today’s decision prevents States, cities, and counties from going a step further and declining to criminalize public camping altogether. For its part, the Constitution provides many additional limits on state prosecutorial power, promising fair notice of the laws and equal treatment under them, forbidding selective prosecutions, and much more besides. All this represents only a small sample of the legion protections our society affords a presumptively free individual from a criminal conviction. But aside from Robinson, a case directed to a highly unusual law that condemned status alone, this Court has never invoked the Eighth Amendment’s Cruel and Unusual Punishments Clause to perform that function.

D

Not only did Powell decline to extend Robinson to “involuntary” acts, it stressed the dangers that would likely attend any attempt to do so. Were the Court to pursue that path in the name of the Eighth Amendment, Justice Marshall warned, “it is difficult to see any limiting principle that would serve to prevent this Court from becoming … the ultimate arbiter of the standards of criminal responsibility, in diverse areas of the criminal law, throughout the country.” After all, nothing in the Amendment’s text or history exists to “confine” or guide our review. Unaided by those sources, we would be left “to write into the Constitution” our own “formulas,” many of which would likely prove unworkable in practice. Along the way, we would interfere with “essential considerations of federalism” that reserve to the States primary responsibility for drafting their own criminal laws…

… Justice Marshall reasoned, such matters are generally left to be resolved through “productive” democratic “dialogue” and “experimentation,” not by “freez[ing]” any particular, judicially preferred approach “into a rigid constitutional mold.”

… The Ninth Circuit’s Martin experiment defied these lessons. Under Martin, judges take from elected representatives the questions whether and when someone who has committed a proscribed act with a requisite mental state should be “relieved of responsibility” for lack of “moral culpability.” And Martin exemplifies much of what can go wrong when courts try to resolve matters like those unmoored from any secure guidance in the Constitution.

Start with this problem. Under Martin, cities must allow public camping by those who are “involuntarily” homeless. But how are city officials and law enforcement officers to know what it means to be “involuntarily” homeless, or whether any particular person meets that standard? Posing the questions may be easy; answering them is not. Is it enough that a homeless person has turned down an offer of shelter? Or does it matter why? Cities routinely confront individuals who decline offers of shelter for any number of reasons, ranging from safety concerns to individual preferences. How are cities and their law enforcement officers on the ground to know which of these reasons are sufficiently weighty to qualify a person as “involuntarily” homeless?

If there are answers to those questions, they cannot be found in the Cruel and Unusual Punishments Clause. Nor do federal judges enjoy any special competence to provide them. Cities across the West report that the Ninth Circuit’s ill-defined involuntariness test has proven “unworkable.” The test, they say, has left them “with little or no direction as to the scope of their authority in th[eir] day-to-day policing contacts,” and under “threat of federal litigation . . . at all times and in all circumstances.”

To be sure, Martin attempted to head off these complexities through some back-of-the-envelope arithmetic. The Ninth Circuit said a city needs to consider individuals “involuntarily” homeless (and thus entitled to camp on public property) only when the overall homeless population exceeds the total number of “adequate” and “practically available” shelter beds. But as sometimes happens with abstract rules created by those far from the front lines, that test has proven all but impossible to administer in practice.

City officials report that it can be “monumentally difficult” to keep an accurate accounting of those experiencing homelessness on any given day. Often, a city’s homeless population “fluctuate[s] dramatically,” in part because homelessness is an inherently dynamic status. While cities sometimes make rough estimates based on a single point-in-time count, they say it would be “impossibly expensive and difficult” to undertake that effort with any regularity. In Los Angeles, for example, it takes three days to count the homeless population block-by-block—even with the participation of thousands of volunteers.

Beyond these complexities, more await. Suppose even large cities could keep a running tally of their homeless citizens forevermore. And suppose further that they could keep a live inventory of available shelter beds. Even so, cities face questions over which shelter beds count as “adequate” and “available” under Martin. Rather than resolve the challenges associated with defining who qualifies as “involuntarily” homeless, these standards more nearly return us to them. Is a bed “available” to a smoker if the shelter requires residents to abstain from nicotine, as the shelter in Grants Pass does? Is a bed “available” to an atheist if the shelter includes “religious” messaging? And how is a city to know whether the accommodations it provides will prove “adequate” in later litigation? Once more, a large number of cities in the Ninth Circuit tell us they have no way to be sure….

There are more problems still. The Ninth Circuit held that “involuntarily” homeless individuals cannot be punished for camping with materials “necessary to protect themselves from the elements.” It suggested, too, that cities cannot proscribe “life-sustaining act[s]” that flow necessarily from homelessness. But how far does that go? The plaintiffs before us suggest a blanket is all that is required in Grants Pass. But might a colder climate trigger a right to permanent tent encampments and fires for warmth? Because the contours of this judicial right are so “uncertai[n],” cities across the West have been left to guess whether Martin forbids their officers from removing everything from tents to “portable heaters” on city sidewalks. There is uncertainty, as well, over whether Martin requires cities to tolerate other acts no less “attendant [to] survival” than sleeping, such as starting fires to cook food and “public urination [and] defecation.” By extending Robinson beyond the narrow class of status crimes, the Ninth Circuit has created a right that has proven “impossible” for judges to delineate except “by fiat.”

Doubtless, the Ninth Circuit’s intervention in Martin was well-intended. But since the trial court entered its injunction against Grants Pass, the city shelter reports that utilization of its resources has fallen by roughly 40 percent… Martin has forced these “overwhelmed jurisdictions to concentrate public resources on temporary shelter beds.” As a result, cities report, Martin has undermined their efforts to balance conflicting public needs and mired them in litigation at a time when the homelessness crisis calls for action.

All told, the Martin experiment is perhaps just what Justice Marshall anticipated ones like it would be…

E

Rather than address what we have actually said, the dissent accuses us of extending to local governments an “unfettered freedom to punish,” and stripping away any protections “the Constitution” has against “criminalizing sleeping.” “Either stay awake,” the dissent warns, “or be arrested.” That is gravely mistaken. We hold nothing of the sort. As we have stressed, cities and States are not bound to adopt public-camping laws. They may also choose to narrow such laws (as Oregon itself has recently). Beyond all that, many substantive legal protections and provisions of the Constitution may have important roles to play when States and cities seek to enforce their laws against the homeless. The only question we face is whether one specific provision of the Constitution—the Cruel and Unusual Punishments Clause of the Eighth Amendment—prohibits the enforcement of public-camping laws.

Nor does the dissent meaningfully engage with the reasons we have offered for our conclusion on that question. It claims that we “gratuitously” treat Robinson “as an outlier.” But the dissent does not dispute that the law Robinson faced was an anomaly, punishing mere status. The dissent does not dispute that Robinson’s decision to address that law under the rubric of the Eighth Amendment is itself hard to square with the Amendment’s text and this Court’s other precedents interpreting it. And the dissent all but ignores Robinson’s own insistence that a different result would have obtained in that case if the law there had proscribed an act rather than status alone.

Tellingly, too, the dissent barely mentions Justice Marshall’s opinion in Powell. There, reasoning exactly as we do today, Justice Marshall refused to extend Robinson to actions undertaken, “in some sense, ‘involuntar[ily].’” Rather than confront any of this, the dissent brusquely calls Powell a “strawman” and seeks to distinguish it on the inscrutable ground that Grants Pass penalizes “status[-defining]” (rather than “involuntary”) conduct. But whatever that might mean, it is no answer to the reasoning Justice Marshall offered, to its obvious relevance here, or to the fact this Court has since endorsed Justice Marshall’s reasoning as correct …

To be sure, the dissent seeks to portray the new rule it advocates as a modest, “limited,” and “narrow” one addressing only those who wish to fulfill a “biological necessity” and “keep warm outside with a blanket” when they have no other “adequate” place “to go.” But that reply blinks the difficult questions that necessarily follow and the Ninth Circuit has been forced to confront: What does it mean to be “involuntarily” homeless with “no place to go”? What kind of “adequate” shelter must a city provide to avoid being forced to allow people to camp in its parks and on its sidewalks? And what are people entitled to do and use in public spaces to “keep warm” and fulfill other “biological necessities”?

Those unavoidable questions have plunged courts and cities across the Ninth Circuit into waves of litigation. And without anything in the Eighth Amendment to guide them, any answers federal judges can offer (and have offered) come, as Justice Marshall foresaw, only by way of “fiat.” The dissent cannot escape that hard truth. Nor can it escape the fact that, far from narrowing Martin, it would expand its experiment from one circuit to the entire country—a development without any precedent in this Court’s history…

III

Homelessness is complex. Its causes are many. So may be the public policy responses required to address it. At bottom, the question this case presents is whether the Eighth Amendment grants federal judges primary responsibility for assessing those causes and devising those responses. It does not…

Yes, people will disagree over which policy responses are best; they may experiment with one set of approaches only to find later another set works better; they may find certain responses more appropriate for some communities than others. But in our democracy, that is their right. Nor can a handful of federal judges begin to “match” the collective wisdom the American people possess in deciding “how best to handle” a pressing social question like homelessness. The Constitution’s Eighth Amendment serves many important functions, but it does not authorize federal judges to wrest those rights and responsibilities from the American people and in their place dictate this Nation’s homelessness policy. The judgment below is reversed, and the case is remanded for further proceedings consistent with this opinion.

JUSTICE THOMAS, concurring.

I join the Court’s opinion in full because it correctly rejects the respondents’ claims under the Cruel and Unusual Punishments Clause. As the Court observes, that Clause “focuses on the question what method or kind of punishment a government may impose after a criminal conviction.” The respondents, by contrast, ask whether Grants Pass “may criminalize particular behavior in the first place.” …

… the precedent that the respondents primarily rely upon, Robinson v. California (1962), was wrongly decided. In Robinson, the Court held that the Cruel and Unusual Punishments Clause prohibits the enforcement of laws criminalizing a person’s status. That holding conflicts with the plain text and history of the Cruel and Unusual Punishments Clause. That fact is unsurprising given that the Robinson Court made no attempt to analyze the Eighth Amendment’s text or discern its original meaning. Instead, Robinson’s holding rested almost entirely on the Court’s understanding of public opinion: The Robinson Court observed that “in the light of contemporary human knowledge, a law which made a criminal offense of . . . a disease [such as narcotics addiction] would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.” Modern public opinion is not an appropriate metric for interpreting the Cruel and Unusual Punishments Clause— or any provision of the Constitution for that matter.

Much of the Court’s other Eighth Amendment precedents make the same mistake. Rather than interpret our written Constitution, the Court has at times “proclaim[ed] itself sole arbiter of our Nation’s moral standards,” and has set out to enforce “evolving standards of decency,” Trop v. Dulles (1958). I continue to believe that we should adhere to the Cruel and Unusual Punishments Clause’s fixed meaning in resolving any challenge brought under it…

JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN and JUSTICE JACKSON join, dissenting.

Sleep is a biological necessity, not a crime. For some people, sleeping outside is their only option. The City of Grants Pass jails and fines those people for sleeping anywhere in public at any time, including in their cars, if they use as little as a blanket to keep warm or a rolled-up shirt as a pillow. For people with no access to shelter, that punishes them for being homeless. That is unconscionable and unconstitutional. Punishing people for their status is “cruel and unusual” under the Eighth Amendment. Robinson v. California (1962)…

… States and cities face immense challenges in responding to homelessness. To address these these challenges and provide for public health and safety, local governments need wide latitude, including to regulate when, where, and how homeless people sleep in public. The decision below did, in fact, leave cities free to punish “littering, public urination or defecation, obstruction of roadways, possession or distribution of illicit substances, harassment, or violence.” The only question for the Court today is whether the Constitution permits punishing homeless people with no access to shelter for sleeping in public with as little as a blanket to keep warm. It is possible to acknowledge and balance the issues facing local governments, the humanity and dignity of homeless people, and our constitutional principles. Instead, the majority focuses almost exclusively on the needs of local governments and leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested.

The Constitution provides a baseline of rights for all Americans rich and poor, housed and unhoused. This Court must safeguard those rights even when, and perhaps especially when, doing so is uncomfortable or unpopular. Otherwise, “the words of the Constitution become little more than good advice.”

I

The causes, consequences, and experiences of homelessness are complex and interconnected. The majority paints a picture of “cities across the American West” in “crisis” that are using criminalization as a last resort. That narrative then animates the majority’s reasoning. This account, however, fails to engage seriously with the precipitating causes of homelessness, the damaging effects of criminalization, and the myriad legitimate reasons people may lack or decline shelter…

A

….

People become homeless for many reasons, including some beyond their control. “[S]stagnant wages and the lack of affordable housing” can mean some people are one unexpected medical bill away from being unable to pay rent. Every “$100 increase in median rental price” is “associated with about a 9 percent increase in the estimated homelessness rate.” Individuals with disabilities, immigrants, and veterans face policies that increase housing instability. Natural disasters also play a role, including in Oregon, where increasing numbers of people “have lost housing because of climate events such as extreme wildfires across the state, floods in the coastal areas, [and] heavy snowstorms.” Further, “mental and physical health challenges,” and family and domestic “violence and abuse” can be precipitating causes of homelessness.

People experiencing homelessness are young and old, live in families and as individuals, and belong to all races, cultures, and creeds. Given the complex web of causes, it is unsurprising that the burdens of homelessness fall disproportionately on the most vulnerable in our society…

B

States and cities responding to the homelessness crisis face the difficult task of addressing the underlying causes of homelessness while also providing for public health and safety. This includes, for example, dealing with the hazards posed by encampments, such as “a heightened risk of disease associated with living outside without bathrooms or wash basins,” “deadly fires” from efforts to “prepare food and create heat sources,” violent crime, and drug distribution and abuse.

Local governments need flexibility in responding to homelessness with effective and thoughtful solutions. Almost all of these policy solutions are beyond the scope of this case. The only question here is whether the Constitution permits criminalizing sleeping outside when there is nowhere else to go. That question is increasingly relevant because many local governments have made criminalization a frontline response to homelessness. “[L]ocal measures to criminalize ‘acts of living’” by “prohibit[ing]sleeping, eating, sitting, or panhandling in public spaces” have recently proliferated.

Criminalizing homelessness can cause a destabilizing cascade of harm. “Rather than helping people to regain housing, obtain employment, or access needed treatment and services, criminalization creates a costly revolving door that circulates individuals experiencing homelessness from the street to the criminal justice system and back.” When a homeless person is arrested or separated from their property, for example, “items frequently destroyed include personal documents needed for accessing jobs, housing, and services such as IDs, driver’s licenses, financial documents, birth certificates, and benefits cards; items required for work such as clothing and uniforms, bicycles, tools, and computers; and irreplaceable mementos.” …

Incarceration and warrants from unpaid fines can also result in the loss of employment, benefits, and housing options. Finally, criminalization can lead homeless people to “avoid calling the police in the face of abuse or theft for fear of eviction from public space.” …

For people with nowhere else to go, fines and jail time do not deter behavior, reduce homelessness, or increase public safety. In one study, 91% of homeless people who were surveyed “reported remaining outdoors, most often just moving two to three blocks away” when they received a move along order…

Shelter beds that are available in theory may be practically unavailable because of “restrictions based on gender, age, income, sexuality, religious practice, curfews that conflict with employment obligations, and time limits on stays.” Studies have shown, however, that the “vast majority of those who are unsheltered would move inside if safe and affordable options were available.” …

II

Grants Pass, a city of 38,000 people in southern Oregon, adopted three ordinances (Ordinances) that effectively make it unlawful to sleep anywhere in public, including in your car, at any time, with as little as a blanket or a rolled-up shirt as a pillow. The Ordinances prohibit “[c]amping” on “any sidewalk, street, alley, lane, public right of way, park, bench, or any other publicly-owned property or under any bridge or viaduct.” A “[c]ampsite” is defined as “any place where bedding, sleeping bag, or other material used for bedding purposes, or any stove or fire is placed, established, or maintained for the purposes of maintaining a temporary place to live.” Relevant here, the definition of “campsite” includes sleeping in “any vehicle.” The Ordinances also prohibit camping in public parks, including the “[o]vernight parking” of any vehicle.

The City enforces these Ordinances with fines starting at $295 and increasing to $537.60 if unpaid. Once a person is cited twice for violating park regulations within a 1-year period, city officers can issue an exclusion order barring that person from the park for 30 days. A person who camps in a park after receiving that order commits criminal trespass, which is punishable by a maximum of 30 days in jail and a $1,250 fine.

In 2019, the Ninth Circuit held that “‘the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.’” Martin v. Boise. Considering an ordinance from Boise, Idaho, that made it a misdemeanor to use “streets, sidewalks, parks, or public places” for “camping,” the court concluded that “as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property.”

Respondents here, two longtime residents of Grants Pass who are homeless and sleep in their cars, sued on behalf of themselves and all other involuntarily homeless people in the City, seeking to enjoin enforcement of the Ordinances…

The District Court [then] entered a narrow injunction. It concluded that Grants Pass could “implement time and place restrictions for when homeless individuals may use their belongings to keep warm and dry and when they must have their belonging[s] packed up.” The City could also “ban the use of tents in public parks,” as long as it did not “ban people from using any bedding type materials to keep warm and dry while they sleep.” Further, Grants Pass could continue to “enforce laws that actually further public health and safety, such as laws restricting littering, public urination or defecation, obstruction of roadways, possession or distribution of illicit substances, harassment, or violence.”

The Ninth Circuit largely agreed that the Ordinances violated the Eighth Amendment because they punished people who lacked “some place, such as [a] shelter, they can lawfully sleep.” It further narrowed the District Court’s already-limited injunction. The Ninth Circuit noted that, beyond prohibiting bedding, “the ordinances also prohibit the use of stoves or fires, as well as the erection of any structures.” Because the record did not “establish [that] the fire, stove, and structure prohibitions deprive homeless persons of sleep or ‘the most rudimentary precautions’ against the elements,” the court remanded for the District Court “to craft a narrower injunction recognizing Plaintiffs’ limited right to protection against the elements, as well as limitations when a shelter bed is available.”

III

The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” This prohibition, which is not limited to medieval tortures, places “‘limitations’ on ‘the power of those entrusted with the criminal-law function of government.’” The Punishments Clause “circumscribes the criminal process in three ways: First, it limits the kinds of punishment that can be imposed on those convicted of crimes; second, it proscribes punishment grossly disproportionate to the severity of the crime; and third, it imposes substantive limits on what can be made criminal and punished as such.”

In Robinson v. California, this Court detailed one substantive limitation on criminal punishment. Lawrence Robinson was convicted under a California statute for “‘be[ing] addicted to the use of narcotics” and faced a mandatory 90-day jail sentence. The California statute did not “punis[h] a person for the use of narcotics, for their purchase, sale or possession, or for antisocial or disorderly behavior resulting from their administration.” Instead, it made “the ‘status’ of narcotic addiction a criminal offense, for which the offender may be prosecuted ‘at any time before he reforms.’”

The Court held that, because it criminalized the “‘status’ of narcotic addiction,” the California law “inflict[ed] a cruel and unusual punishment in violation” of the Punishments Clause. Importantly, the Court did not limit that holding to the status of narcotic addiction alone. It began by reasoning that the criminalization of the “mentally ill, or a leper, or [those] afflicted with a venereal disease” “would doubtless be universally thought to be an infliction of cruel and unusual punishment.”…

Unlike the majority, the Robinson Court did not rely on the harshness of the criminal penalty itself. It understood that “imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual.” Instead, it reasoned that, when imposed because of a person’s status, “[e]ven one day in prison would be a cruel and unusual punishment.” …

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.” Though it casts aspersions on Robinson and mistakenly treats it as an outlier, the majority does not overrule or reconsider that decision. Nor does the majority cast doubt on this Court’s firmly rooted principle that inflicting “unnecessary suffering” that is “grossly disproportionate to the severity of the crime” or that serves no “penological purpose” violates the Punishments Clause. Instead, the majority sees this case as requiring an application or extension of Robinson. The majority’s understanding of Robinson, however, is plainly wrong.

IV

Grants Pass’s Ordinances criminalize being homeless. The status of being homeless (lacking available shelter) is defined by the very behavior singled out for punishment (sleeping outside). The majority protests that the Ordinances “do not criminalize mere status.” Saying so does not make it so. Every shred of evidence points the other way. The Ordinances’ purpose, text, and enforcement confirm that they target status, not conduct. For someone with no available shelter, the only way to comply with the Ordinances is to leave Grants Pass altogether.

A

Start with their purpose. The Ordinances, as enforced, are intended to criminalize being homeless. The Grants Pass City Council held a public meeting in 2013 to “‘identify solutions to current vagrancy problems.’” The council discussed the City’s previous efforts to banish homeless people by “buying the person a bus ticket to a specific destination,” or transporting them to a different jurisdiction and “leaving them there.” That was unsuccessful, so the council discussed other ideas, including a “ ‘do not serve’” list or “a ‘most unwanted list’ made by taking pictures of the offenders . . . and then disseminating it to all the service agencies.” The council even contemplated denying basic services such as “food, clothing, bedding, hygiene, and those types of things.”

The idea was deterrence, not altruism. “[U]ntil the pain of staying the same outweighs the pain of changing, people will not change; and some people need an external source to motivate that needed change.” One councilmember opined that “[m]aybe they aren’t hungry enough or cold enough . . . to make a change in their behavior.” The council president summed up the goal succinctly: “‘[T]he point is to make it uncomfortable enough for [homeless people] in our city so they will want to move on down the road.’”  …

B

Next consider the text. The Ordinances by their terms single out homeless people. They define “campsite” as “any place where bedding, sleeping bag, or other material used for bedding purposes” is placed “for the purpose of maintaining a temporary place to live.” The majority claims that it “makes no difference whether the charged defendant is homeless.” Yet the Ordinances do not apply unless bedding is placed to maintain a temporary place to live. Thus, “what separates prohibited conduct from permissible conduct is a person’s intent to ‘live’ in public spaces. Infants napping in strollers, Sunday afternoon picnickers, and nighttime stargazers may all engage in the same conduct of bringing blankets to public spaces [and sleeping], but they are exempt from punishment because they have a separate ‘place to live’ to which they presumably intend to return.” Put another way, the Ordinances single out for punishment the activities that define the status of being homeless…

Permitting Grants Pass to criminalize sleeping outside with as little as a blanket permits Grants Pass to criminalize homelessness. “There is no … separation between being without available indoor shelter and sleeping in public—they are opposite sides of the same coin.” The Ordinances use the definition of “campsite” as a proxy for homelessness because those lacking “a fixed, regular, and adequate nighttime residence” are those who need to sleep in public to “maintai[n] a temporary place to live.” …

Take the respondents here, two longtime homeless residents of Grants Pass who sleep in their cars. The Ordinances  define  “campsite”  to  include  “any  vehicle.” For respondents, the Ordinances as applied do not criminalize any behavior or conduct related to encampments (such as fires or tents). Instead, the Ordinances target respondents’ status as people without any other form of shelter. Under the majority’s logic, cities cannot criminalize the status of being homeless, but they can criminalize the conduct that defines that status. The Constitution cannot be evaded by such formalistic distinctions.

The Ordinances’ definition of “campsite” creates a situation where homeless people necessarily break the law just by existing. … Every human needs to sleep at some point. Even if homeless people with no available shelter options can exist for a few days in Grants Pass without sleeping, they eventually must leave or be criminally punished…

The flaw in this conclusion is evident. The majority countenances the criminalization of status as long as the City tacks on an essential bodily function—blinking, sleeping, eating, or breathing. That is just another way to ban the person. By this logic, the majority would conclude that the ordinance deemed unconstitutional in Robinson criminalizing “being an addict” would be constitutional if it criminalized “being an addict and breathing.” …

C

The Ordinances are enforced exactly as intended: to criminalize the status of being homeless. City officials sought to use the Ordinances to drive homeless people out of town…

The majority proclaims, with no citation, that “it makes no difference whether the charged defendant is homeless, a backpacker on vacation passing through town, or a student who abandons his dorm room to camp out in protest.” That describes a fantasy. In reality, the deputy chief of police operations acknowledged that he was not aware of “any non-homeless person ever getting a ticket for illegal camping in Grants Pass.” … So much for the Ordinances applying to backpackers and students.

V

Robinson should squarely resolve this case. Indeed, the majority seems to agree that an ordinance that fined and jailed “homeless” people would be unconstitutional. The majority resists a straightforward application of Robinson by speculating about policy considerations and fixating on extensions of the Ninth Circuit’s narrow rule in Martin.

The majority is wrong on all accounts. First, no one contests the power of local governments to address homelessness. Second, the majority overstates the line-drawing problems that this case presents. Third, a straightforward application of Robinson does not conflict with Powell v. Texas (1968). Finally, the majority draws the wrong message from the various amici requesting this Court’s guidance.

A

No one contests that local governments can regulate the time, place, and manner of public sleeping pursuant to their power to “enact regulations in the interest of the public safety, health, welfare or convenience.” This power includes controlling “the use of public streets and sidewalks, over which a municipality must rightfully exercise a great deal of control in the interest of traffic regulation and public safety.” When exercising that power, however, regulations still “may not abridge the individual liberties secured by the Constitution.”

The Ninth Circuit in Martin provided that “an ordinance violates the Eighth Amendment insofar as it imposes criminal sanctions against homeless individuals for sleeping outdoors, on public property, when no alternative shelter is available to them.” Martin was narrow. Consider these qualifications:

“[O]ur holding does not cover individuals who do have access to adequate temporary shelter, whether because they have the means to pay for it or because it is realistically available to them for free, but who choose not to use it. Nor do we suggest that a jurisdiction with insufficient shelter can never criminalize the act of sleeping outside. Even where shelter is unavailable, an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible. So, too, might an ordinance barring the obstruction of public rights of way or the erection of certain structures.”

Upholding Martin does not call into question all the other tools that a city has to deal with homelessness…

Footnote 4: Some district courts have since interpreted Martin broadly, relying on it to enjoin time, place, and manner restrictions on camping outside. This Court is not asked today to consider any of these interpretations or extensions of Martin.

B

The scope of this dispute is narrow. Respondents do not challenge the City’s “restrictions on the use of tents or other camping gear,” “encampment clearances,” “time and place restrictions on sleeping outside,” or “the imposition of fines or jail time on homeless people who decline accessible shelter options.”

That means the majority does not need to answer most of the hypotheticals it poses… The majority’s framing of the problem as one involving drugs, diseases, and fires instead of one involving people trying to keep warm outside with a blanket just provides the Court with cover to permit the criminalization of homeless people.

The majority also overstates the line-drawing problems that a baseline Eighth Amendment standard presents. Consider the “unavoidable” “difficult questions” that discombobulate the majority. Courts answer such factual questions every day. For example, the majority asks: “What does it mean to be ‘involuntarily’ homeless with ‘no place to go’?” Martin’s answer was clear: It is when “‘there is a greater number of homeless individuals in [a city] than the number of available beds [in shelters,]’” not including “individuals who do have access to adequate temporary shelter, whether because they have the means to pay for it or because it is realistically available to them for free.” The District Court here found that Grants Pass had “zero emergency shelter beds” and that Gospel Rescue Mission’s “138 beds would not be nearly enough to accommodate the at least 602 homeless individuals in Grants Pass.” The majority also asks: “[W]hat are people entitled to do and use in public spaces to ‘keep warm’”? The District Court’s opinion also provided a clear answer: They are permitted “bedding type materials to keep warm and dry,” but cities can still “implement time and place restrictions for when homeless individuals . . . must have their belonging[s] packed up.” Ultimately, these are not metaphysical questions but factual ones.

Just because the majority can list difficult questions that require answers does not absolve federal judges of the responsibility to interpret and enforce the substantive bounds of the Constitution. The majority proclaims that this dissent “blinks the difficult questions.” The majority should open its eyes to available answers instead of throwing up its hands in defeat.

C

The majority next spars with a strawman in its discussion of Powell v. Texas…

This case similarly called for a straightforward application of Robinson. The majority finds it telling that this dissent “barely mentions” Justice Marshall’s opinion in Powell. The majority completely misses the point. Even Justice Marshall’s plurality opinion in Powell agreed that Robinson prohibited enforcing laws criminalizing “a mere status.” The Powell Court considered a statute that criminalized voluntary conduct (getting drunk) that could be rendered involuntary by a status (alcoholism); here, the Ordinances criminalize conduct (sleeping outside) that defines a particular status (homelessness). So unlike the debate in Powell, this case does not turn on whether the criminalized actions are “‘involuntary’ or ‘occasioned by’” a particular status. For all the reasons discussed above, these Ordinances criminalize status and are thus unconstitutional under any of the opinions in Powell.

D

…

The majority cites various amicus briefs to amplify Grants Pass’s belief that its homelessness crisis is intractable absent the ability to criminalize homelessness. In so doing, the majority chooses to see only what it wants. Many of those stakeholders support the narrow rule in Martin…

VI

The Court wrongly concludes that the Eighth Amendment permits Ordinances that effectively criminalize being homeless…

*   *   *

… The Eighth Amendment prohibits punishing homelessness by criminalizing sleeping outside when an individual has nowhere else to go. It is cruel and unusual to apply any penalty “selectively to minorities whose numbers are few, who are outcasts of society, and who are unpopular, but whom society is willing to see suffer though it would not countenance general application of the same penalty across the board.”

I remain hopeful that our society will come together “to address the complexities of the homelessness challenge facing the most vulnerable among us.” That responsibility is shared by those vulnerable populations, the States and cities in which they reside, and each and every one of us. …

This Court, too, has a role to play in faithfully enforcing the Constitution to prohibit punishing the very existence of those without shelter. I remain hopeful that someday in the near future, this Court will play its role in safeguarding constitutional liberties for the most vulnerable among us. Because the Court today abdicates that role, I respectfully dissent.