The Supreme Court weighs criminalizing homelessness.

The Supreme Court is set to rule on litigation involving a regulation that, in effect, makes being homeless illegal. Specifically, the case of Johnson v. Grants Pass involves a law that makes “camping,” i.e. sheltering, in public spaces around the town of Grants Pass, Oregon, a criminal offense. The case has reached the nation’s highest court after the Ninth Court of Appeals affirmed a lower court ruling that blocked similar anti-camping ordinances in San Francisco.

Not to get too conceptual here (though I would imagine that any regular readers know to expect that, and perhaps appreciate it) but it’s barely a stretch to call the effort to criminalize the presence of homeless people a shot across the bow for a more general political theory of governmental approach to social issues. That’s not a new framing; as long as there have been organized human societies, there have been those who think that people, writ large, should be either punished for their transgressions or helped with their problems, which are often either the same thing or at least stem from similar issues.

In the classic example of the man who steals a loaf of bread to feed his family, you can see the theft as a transgression or the lack of food as a social failure. A lot of contemporary liberal thought tries to straddle the two — of course we should endeavor to create the conditions such that a person will never be short of food in this way, yet the theft itself is still a transgression to be punished. We do, after all, live in a self-imposed illusion of order that can easily collapse if and when people stop following the rules altogether.

person wearing high top sneakers
Johnson v. Grants Pass involves a law that makes sheltering in public a criminal offense.Credit: Taufiq Klinkenborg

What stands out to me about this litigation in particular, though, is that this is the type of offense you can commit with basically no input on your part. It is essentially an automatic crime you can engage in by virtue of circumstance, which occurs regardless of your actions. If you have nowhere to go and you simply stand until you can’t stand anymore and then lie down and fall asleep in a park, you’re guilty of a crime. While officials in Grants Pass have argued that this is about health and safety, with lawyer Theane Evangelis telling SCOTUS that “it is not safe to live in encampments. It’s unsanitary,” the more realpolitik considerations are evident from when the bill was first drafted.

As the Grants Pass City Council was gathering to debate “current vagrancy problems” just over 11 years ago, Council president Lily Morgan said “the point is to make it uncomfortable enough for them in our city so they will want to move on down the road,” which kind of gives the game away. As a longtime immigration reporter, I couldn’t help but notice how closely this candid statement resonated with some rationalizations for immigration policy. The notion of making conditions on the ground so unbearable that people simply “self-deport” has been right-wing dogma for years. The idea of prevention through deterrence, or making the act of crossing the border itself so dangerous and deadly that people give up before trying, has been bipartisan policy stretching back to the Clinton years.

Obviously, this is a little different in that there is at least some more proactivity in the act of migrating versus simply being homeless, a condition that can be imposed on you based on circumstances sometimes out of your control. But the whole premise of humanitarian migration is that it is a forced choice, and in the era of mass climate change and the consequences it will wreak on the planet, this choice will be forced on more and more people. Rules like the anti-homeless laws and the immigration restrictions I think cumulatively chart a path where people in the in-group — themselves feeling only tenuously connected to their advantages and frightened by the prospect of losing them — are urged to turn on the out-groups out of a mix of self-preservation and denial about how vulnerable they are themselves.

It’s possible that this will be a bridge too far even for SCOTUS’ conservative majority. Trump appointee Brett Kavanaugh asked Evangelis “how does it help if there are not enough beds for the number of homeless people in the jurisdiction?” and pointed out that spending 30 days in jail and then being released back onto the streets is hardly going to put someone in a position of not committing the offense again.

a woman sleeping on the bench
The SCOTUS ruling could also impact NYC. Credit: MART PRODUCTION.

The housing market has, in the decade since this ordinance passed, just gotten tighter and tighter, spilling out into previously more affordable urban, suburban, and even rural areas. Those of us not in housing-insecure situations tend to think of it as a result of bad individual choices, but really it’s bad collective policy choices that have set this up. I’ve written abundantly in this newsletter about New York policymakers’ bewildering, long-standing failure to address the housing emergency that everyone agrees poses a practically existential threat to the state and the city in particular. A Community Service Society analysis of the 2021 Housing Vacancy Survey last year found that one in three New Yorkers weren’t just rent burdened, but paying half their income in rent.

Meanwhile, Mayor Eric Adams has embarked on a campaign to conduct his own homeless encampment sweeps, echoing the language about the encampments being undignified and unsanitary and the city working to place the unhoused in better situations. Yet an audit conducted last year by New York City Comptroller Brad Lander found that, of over 2,300 people who had been encountered during so-called “cleanups” conducted in 2022, only 90 had stayed in a shelter for longer than a day and a whopping three had found permanent housing. Almost a third of the sites had been erected again after a sweep. Data obtained by Gothamist last month shows that the volume of sweeps has not slowed, and instead climbed, with a peak last fall that ended up with 500 sweeps a month. One East Village street had been swept 199 times.

The city contends that these sweeps have landed more people in shelters and permanent housing than before, but mainly do so in vagaries. My editorial board has on multiple occasions called for the city to release specific and up-to-date data, like it does for NYPD’s CompStat, and we’ve asked Adams directly, but no luck. So while this specific case addresses the laws of one town in Oregon, it will have reverberations throughout the country, including right here in NYC, where the increasing targeting of the street homeless population has become rather quietly a significant public policy plank. With the  administration’s actions to restrict migrant access to the shelter system, including its recent deal with the Legal Aid Society to limit the right to shelter to 30 days for single adults, it will also inexorably collide with the so-called migrant crisis.

Felipe De La Hoz is an immigration-focused journalist who has written investigative and analytic articles, explainers, essays, and columns for the New Republic, The Washington Post, New York Mag, Slate,...

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