Amicus Curiae Brief — City of Grants Pass, Oregon, Petitioner v. Gloria Johnson, et al., on Behalf of Themselves and All Others Similarly Situated
Supreme Court briefApr 3, 2024
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No. 23-175
IN THE
Supreme Court of the United States
d
CITY OF GRANTS PASS , OREGON ,
Petitioner,
—v.—
GLORIA JOHNSON and JOHN LOGAN , ON BEHALF OF
THEMSELVES AND ALL OTHERS SIMILARLY SITUATED ,
Respondents.
ON WRIT OF CERTIORARI FROM THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT
BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION
AND NINETEEN AFFILIATES AS AMICI CURIAE
IN SUPPORT OF RESPONDENTS
Scout Katovich
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street, 18th Floor
New York, NY 10004
Jennifer A. Wedekind
Counsel of Record
David D. Cole
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
915 15th Street, NW
Washington, D.C. 20005
(202) 548-6610
jwedekind@aclu.org
Evelyn Danforth-Scott
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
425 California Street, 7th Floor
San Francisco, CA 94104
Counsel for Amici Curiae The American
Civil Liberties Union and Nineteen Affiliates
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................... iii
INTEREST OF AMICI CURIAE ................................ 1
INTRODUCTION AND SUMMARY OF
ARGUMENT .......................................................... 2
ARGUMENT ............................................................... 4
I.
The Eighth Amendment Prohibits
Disproportionate Punishments ....................... 4
A. The Eighth Amendment’s Text and
Original Meaning Prohibit
Disproportionate Punishments
Guided by Contemporary
Standards ................................................. 5
B. The Eighth Amendment’s History
and Tradition Confirm That It
Prohibits Disproportionate
Punishments Guided by
Contemporary Standards ........................ 9
C. Early American Case Law
Confirms That the Eighth
Amendment’s Language Prohibits
Disproportionate Punishments
Guided by Contemporary
Standards ............................................... 12
II.
This Court’s Eighth Amendment
Jurisprudence Has Firmly Entrenched
the Proportionality Principle ......................... 15
i
A. The Court Has Embraced the
Proportionality Principle for More
Than a Century ...................................... 15
B. The Court Has Identified Three
Core Considerations in
Implementing the Cruel and
Unusual Punishments Clause ............... 19
III. Robinson Fits Squarely Within This
Unbroken Understanding of the Cruel
and Unusual Punishments Clause ................ 21
IV. The Decision Below Is Consistent with
This Court’s Proportionality
Jurisprudence Under the Eighth
Amendment .................................................... 24
CONCLUSION.......................................................... 27
ii
TABLE OF AUTHORITIES
Page
CASES
Atkins v. Virginia,
536 U.S. 304 (2002) ........................... 18, 20, 22, 23
Bucklew v. Precythe,
139 S. Ct. 1112 (2019) ........................................... 6
Coker v. Georgia,
433 U.S. 584 (1977) ............................................. 19
District of Columbia v. Heller,
554 U.S. 570 (2008) ..................................... 5, 7, 12
Ely v. Thompson,
10 Ky. (3 A.K. Marsh) 70 (Ky. 1820) ................... 13
Enmund v. Florida,
458 U.S. 782 (1982) ....................... 3, 20, 21, 25, 27
Ewing v. California,
538 U.S. 11 (2003) ............................................... 21
Ex parte Hickey,
12 Miss. (4 S. & M.) 751 (Miss. 1844) ................. 13
Farmer v. Brennan,
511 U.S. 825 (1994) ....................................... 18, 21
Ford v. Wainwright,
477 U.S. 399 (1986) ............................................. 22
Furman v. Georgia,
408 U.S. 238 (1972) ............................................. 26
iii
Godfrey v. Georgia,
446 U.S. 420 (1980) ............................................. 27
Graham v. Florida,
560 U.S. 48 (2010) ......................... 3, 20, 22, 24, 25
Gregg v. Georgia,
428 U.S. 153 (1976) ....................................... 21, 23
Harmelin v. Michigan,
501 U.S. 957 (1991) ............................................. 19
Hodges v. Humkin, the Maior of Liskerret,
80 Eng. Rep. 1015 (K.B. 1615) ............................ 10
Ingraham v. Wright,
430 U.S. 651 (1977) ............................................. 23
James v. Commonwealth,
12 Serg. & Rawle 220 (Pa. 1825) .................. 14, 15
Jones v. Commonwealth,
5 Va. (1 Call) 555 (Va. 1799) ............................... 13
Jones v. Mississippi,
593 U.S. 98 (2021) ............................................... 22
Kennedy v. Louisiana,
554 U.S. 407 (2008) ............................................. 19
Martin v. City of Boise,
920 F.3d 584 (9th Cir. 2019) ............................... 24
McDonald v. Commonwealth,
180 U.S. 311 (1901) ............................................. 13
McDonald v. Commonwealth,
53 N.E. 874 (Mass. 1899) .................................... 13
iv
Miller v. Alabama,
567 U.S. 460 (2012) ........................... 15, 17, 22, 25
O’Neil v. Vermont,
144 U.S. 323 (1892) ............................................. 16
Robinson v. California,
370 U.S. 660 (1962) ........2, 3, 21, 22, 23, 24, 26, 27
Rogers v. Commonwealth,
5 Serg. & Rawle 463 (Pa. 1820) .......................... 13
Roper v. Simmons,
543 U.S. 551 (2005) ....................................... 18, 22
Solem v. Helm,
463 U.S. 277 (1983) ......................... 3, 9, 18, 19, 23
Thompson v. Oklahoma,
487 U.S. 815 (1988) ......................................... 3, 20
Timbs v. Indiana,
139 S. Ct. 682 (2019) ......................................... 5, 9
Trop v. Dulles,
356 U.S. 86 (1958) ............................. 15, 17, 19, 27
Weems v. United States,
217 U.S. 349 (1910) ..................6, 15, 16, 17, 23, 27
Wilkerson v. Utah,
99 U.S. 130 (1878) ............................................... 23
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. VIII .............................................. 5
v
STATUTES
1 W. & M., sess. 2, ch. 2 (1688)................................. 10
§ 20, 9 Hen. III, ch. 14, in 1 Eng. Stat. at
Large 5 (1225) ........................................................ 9
LEGISLATIVE MATERIALS
10 H.C. Jour. 247 (1689) ..................................... 11, 12
The Debates In The Several State Conventions
On The Adoption Of The Federal
Constitution (Jonathan Elliot ed., 1836) .......... 7, 8
9 Debates of the House of Commons, From the
Year 1667 to the Year 1694
(Anchitell Grey ed., 1763) ................................... 12
2 The Records of the Federal Convention
of 1787 (Max Farrand ed., 1911) ........................... 7
OTHER AUTHORITIES
John D. Bessler,
The Concept of “Unusual Punishments” in
Anglo-American Law: The Death Penalty as
Arbitrary, Discriminatory, and Cruel and
Unusual, 13 Nw. J. L. & Soc. Pol’y 307
(2018) ............................................................... 6, 11
Charles L. Black, Jr.,
The People and the Court (1960) ........................... 8
1 W. Blackstone,
Commentaries on the Laws of
England (1765) .................................................... 10
vi
4 W. Blackstone,
Commentaries on the Laws of
England (1771) ...................................................... 9
2 William Bracton,
On the Laws and Customs of England
(Samuel E. Thorne, trans.,
Harvard Univ. Press 1968) ............................. 9, 10
Edward Coke,
The Compleat Copyholder (1630), reprinted
in 2 The Select Writings and Speeches of Sir
Edward Coke (Steve Sheppard ed., 2003) .......... 10
Anthony F. Granucci,
“Nor Cruel and Unusual Punishments
Inflicted:” The Original Meaning,
57 CAL. L. REV. 839 (1969) .................................. 10
Samuel Johnson,
A Dictionary of the English
Language (1773) ................................................ 5, 6
The Second Trial of Titus Oates, D.D. at the
King’s-Bench, for Perjury, A.D. 1685, in
10 Cobbett’s Complete Collection of State
Trials (T. Howell ed., 1811) ........................... 11, 12
John F. Stinneford, The Original Meaning of
“Cruel”, 105 GEO. L.J. 441 (2017) ......................... 7
John F. Stinneford,
The Original Meaning of “Unusual”: The
Eighth Amendment as a Bar to Cruel
Innovation, 102 Nw. U. L. Rev. 1739 (2008)... 6, 19
vii
Michael J. Zydney Mannheimer,
Harmelin’s Faulty Originalism,
14 Nevada L.J. 522 (2014) .................................. 19
viii
INTEREST OF AMICI CURIAE 1
The American Civil Liberties Union (“ACLU”)
is a nationwide, nonprofit, nonpartisan organization
with nearly 2 million members and supporters
dedicated to the principles of liberty and equality
embodied in the Constitution and our nation’s civil
rights laws. Since its founding in 1920, the ACLU has
frequently appeared before this Court as direct
counsel and as amicus curiae, including in cases
interpreting and applying the Eighth Amendment.
See, e.g., Moore v. Texas, 139 S. Ct. 666 (2019); Roper
v. Simmons, 543 U.S. 551 (2005); Atkins v. Virginia,
536 U.S. 304 (2002); Farmer v. Brennan, 511 U.S. 825
(1994); Hudson v. McMillian, 503 U.S. 1 (1992);
Wilson v. Seiter, 501 U.S. 294 (1991).
The ACLU of Alaska, ACLU of Arizona, ACLU
of Delaware, ACLU of Hawai‘i, ACLU of Iowa, ACLU
of Kansas, ACLU of Kentucky, ACLU of Missouri,
ACLU of Montana, ACLU of New Hampshire, ACLU
of New Mexico, New York Civil Liberties Union,
ACLU of Northern California, ACLU of Oklahoma,
ACLU of Oregon, ACLU of South Carolina, ACLU of
Southern California, ACLU of Utah, and ACLU of
Washington are state affiliates of the ACLU. The
ACLU and its affiliates routinely advocate for the
statutory and constitutional rights of unhoused
people, including through litigation in federal and
state courts. The proper resolution of this case is,
therefore, a matter of significant importance to the
ACLU, its affiliates, and their members.
1 No party has authored this brief in whole or in part, and no one
other than amici, their members, and their counsel have paid for
the preparation or submission of this brief.
1
INTRODUCTION AND SUMMARY OF
ARGUMENT
Punishing a person for sleeping in public when
they have nowhere else to go violates our
Constitution’s prohibition on cruel and unusual
punishments. The Eighth Amendment’s text, history,
and tradition demonstrate that it prohibits
punishments that are disproportionate to the crime.
This Court has long interpreted the Amendment to
that effect, and Petitioner does not dispute that
proposition. Pet. Br. 23. Nor do they take issue with
this Court’s application of that principle, in Robinson
v. California, 370 U.S. 660 (1962), to prohibit the
criminalization of an individual’s status. Pet. Br. 38–
40. Amici offer this brief to underscore that the Court’s
well-founded
proportionality
jurisprudence
is
grounded in the text, history, and tradition of the
Eighth Amendment. Amici further contend that the
Court’s long-settled proportionality principles govern
this case and support the decision below.
The Eighth Amendment’s language was
imported from the English Bill of Rights, which was
itself grounded in a long tradition of proportionality in
punishments and an evolving common law
understanding of what is “cruel and unusual.” Early
application by lower courts in the United States
confirms that the language of the Amendment barred
disproportionate penalties that were contrary to
contemporary standards.
Consistent
with
the
clause’s
original
understanding, this Court has interpreted the cruel
and unusual punishments clause for more than 100
years to prohibit disproportionate punishment. Three
principles emerge from the Court’s caselaw. First, a
2
punishment cannot be viewed in a vacuum but must
be evaluated against the gravity of the offense, as
understood by contemporary society. See, e.g., Solem
v. Helm, 463 U.S. 277, 290–91 (1983). Second, whether
a punishment is unconstitutional also requires
consideration of an individual’s relative culpability,
with particular concern for punishment imposed on
unintentional conduct, see, e.g., Enmund v. Florida,
458 U.S. 782, 800 (1982), as well as contemporary
understanding of characteristics, such as youth or
intellectual disability, that bear on culpability, see,
e.g., Thompson v. Oklahoma, 487 U.S. 815, 821–23
(1988). Third, a punishment may be disproportionate
if it does not further any legitimate penological goals.
See, e.g., Graham v. Florida, 560 U.S. 48, 67 (2010).
Robinson fits squarely within this Court’s
Eighth Amendment precedent. Like the cases that
preceded and followed it, Robinson reaffirmed that a
punishment—there, a 90-day term of imprisonment—
“cannot be considered in the abstract.” 370 U.S. at
667. While 90 days’ incarceration is not excessive for
many crimes, the Court held that it was
unconstitutional when imposed for the “‘status’ of
narcotic addiction[,]” in light of contemporaneous
understandings of substance use disorders. Id. at 666.
Given this well-established doctrine, it is not
surprising that Petitioner does not seek to challenge
either the proportionality principle or Robinson. But
Petitioner errs in contending that the decision below
is an impermissible extension of those principles. The
punishment imposed by Grants Pass on individuals
who must sleep in public is disproportionate, because
individuals with no choice cannot be said to be
blameworthy, their “offense” is low-level and poses no
3
danger to others, and the punishment fails to advance
any legitimate penological goals.
Petitioner argues that the Eighth Amendment
addresses only the method of punishment, not what
the state chooses to punish. But a proportionality
analysis necessarily examines both the conduct and
the penalty, as the Court’s decisions in the sentencing
and capital punishment settings demonstrate.
When applied to people with nowhere else to go,
the ordinances in this case disproportionately punish
unavoidable, life-sustaining, and fundamentally
human acts. Punishing the most vulnerable among us
for such behavior violates the Eighth Amendment.
The decision below should be affirmed.
ARGUMENT
I.
The Eighth Amendment Prohibits
Disproportionate Punishments.
The Eighth Amendment’s text, history, and
tradition
demonstrate
that
it
prohibits
disproportionate punishments. First, both the
Amendment’s text and its original meaning
incorporate proportionality principles informed by
contemporary standards and practices. Second, the
Amendment’s language and common understanding
were adopted from parallel language in the English
Bill of Rights, which itself was grounded in principles
of proportionality and evolving common law
standards. Finally, early American courts applied
language identical or analogous to the Eighth
Amendment using a proportionality analysis and
contemporary standards, confirming the Eighth
Amendment’s original meaning.
4
A.
The Eighth Amendment’s Text and
Original Meaning Prohibit
Disproportionate Punishments
Guided by Contemporary
Standards.
Constitutional interpretation begins with the
text. The Eighth Amendment provides: “Excessive
bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.” U.S.
Const. amend. VIII. “Taken together,” the three
clauses “place parallel limitations on the power of
those entrusted with the criminal-law function of
government.” Timbs v. Indiana, 139 S. Ct. 682, 687
(2019) (internal quotation marks and citation
omitted).
The Amendment’s third clause is at issue here:
“nor cruel and unusual punishments inflicted.” Within
that clause, three words demand focus: “cruel,”
“unusual,” and “punishments.” Each of these words
contributes to the phrase’s idiomatic meaning. See
D.C. v. Heller, 554 U.S. 570, 576–77 (2008) (“Normal
meaning may of course include an idiomatic
meaning[.]”). And each supports reading the clause to
prohibit disproportionate punishments, as informed
by contemporary standards and practices.
At the founding, Samuel Johnson’s dictionary
defined “cruel” as “[p]leased with hurting others;
inhuman; hard-hearted; void of pity; wanting
compassion; savage; barbarous; unrelenting” and
“[b]loody; mischievous; destructive; causing pain.” 4
Samuel Johnson, A Dictionary of the English
Language (1773) (Johnson’s Dictionary). The term
inherently requires comparing the punishment to the
act punished. What may be fair for a serious felony
5
may be a barbarous or destructive punishment for a
petty offense. See, e.g., Weems v. U.S., 217 U.S. 349,
380–81 (1910).
“Unusual” was defined as “[n]ot common; not
frequent; rare.” Johnson’s Dictionary, supra. Its
inverse, “usual,” referred to actions that were longstanding and in line with custom. See id. Government
actions that were new, novel, or contrary to custom
were more likely to be “unusual.” See John D. Bessler,
The Concept of “Unusual Punishments” in AngloAmerican Law: The Death Penalty as Arbitrary,
Discriminatory, and Cruel and Unusual, 13 Nw. J. L.
& Soc. Pol’y 307, 326–34 (2018) (collecting usage
examples); John F. Stinneford, The Original Meaning
of “Unusual”: The Eighth Amendment as a Bar to
Cruel Innovation, 102 Nw. U. L. Rev. 1739, 1770–71
(2008) (Original Meaning) (collecting usage
examples). Practices that had fallen out of common
use, and were therefore no longer consistent with
contemporary custom, were also considered
“unusual.” See Bucklew v. Precythe, 139 S. Ct. 1112,
1123 (2019). Because it identifies practices outside of
current custom, the term necessarily incorporates an
assessment of contemporary community practices and
standards.
Finally, “punishments” was defined as “[a]ny
infliction or pain imposed in vengeance of a crime.”
Johnson’s Dictionary, supra. The term invokes the
government’s use of the criminal justice apparatus
and penal system.
Moreover, at the founding, the phrase “cruel
and unusual punishments,” adopted from the English
Bill of Rights, was understood to be more than a sum
of its parts. By 1791, the phrase carried a pre-existing
6
meaning and codified a pre-existing right. See John F.
Stinneford, The Original Meaning of “Cruel”, 105 GEO.
L.J. 441, 474 (2017) (“Americans shared the same
common law ideology that animated adoption of the
English Bill of Rights, used the same terminology, and
saw the Eighth Amendment as entrenching a preexisting right rather than creating a new one.”). Cf.
Heller, 554 U.S. at 592 (“[I]t has always been widely
understood that the Second Amendment, like the
First and Fourth Amendments, codified a pre-existing
right.”) (emphasis in original). These well-worn words
were commonly understood to incorporate a
proportionality principle informed by contemporary
practices.
The Eighth Amendment was included in the
Bill of Rights to address objections that the lack of a
“Declaration of Rights” could allow a future tyrannical
government to abuse the criminal justice apparatus.
See, e.g., 2 The Records of the Federal Convention of
1787, at 637, 640 (Max Farrand ed., 1911) (statement
of George Mason). The Framers were concerned not
just with barbarous methods of punishment imposed
post-conviction, but with abuse of all aspects of the
penal power, including the creation of new crimes, the
use of torture to extort confessions, and excessive or
disproportionate punishments. For example, George
Mason objected that without appropriate restraints,
Congress could “constitute new crimes, inflict unusual
and severe punishments, and extend their powers as
far as they shall think proper.” Id. at 640. Similarly,
Patrick Henry asserted that “Congress may . . . say . .
. that they must have a criminal equity, and extort
confession by torture, in order to punish with still
more relentless severity.” 3 The Debates In The
Several State Conventions On The Adoption Of The
7
Federal Constitution 447 (Jonathan Elliot ed., 1836)
(Elliot’s Debates). And Abraham Holmes invoked the
Spanish Inquisition—infamous for its practice of
torture—and objected that Congress was being given
the power to determine “what kind of punishments
shall be inflicted on persons convicted of crimes.” 2
Elliot’s Debates, supra at 111.
The Framers might have chosen simply to list,
code-like, specific forms of punishment they sought to
forbid. But that approach would be easily evaded
through development of new forms of penalties and
would not capture the fundamental principle that
punishment should meet the crime. Holmes objected
that, absent a prohibition like the one eventually
incorporated in the Eighth Amendment, Congress was
“nowhere restrained from inventing the most cruel
and unheard-of punishments, and annexing them to
crimes; and there is no constitutional check on them,
but that racks and gibbets may be amongst the most
mild instruments of their discipline.” Id. As
constitutional scholar Charles Black explained, the
clause’s open-ended language was no accident,
because “it is plain that [listing prohibited
punishments] would have failed to implement the
purpose behind the provision, for if a government were
specifically shut off from nose-docking and boiling in
oil, it could surely find some punishment equally cruel
that was not on the list.” Charles L. Black, Jr., The
People and the Court 40 (1960). The Framers therefore
adopted an intentionally broad phrase first codified in
the English Bill of Rights a century before: “nor cruel
and unusual punishments inflicted.”
8
B.
The Eighth Amendment’s History
and Tradition Confirm That It
Prohibits Disproportionate
Punishments Guided by
Contemporary Standards.
The Eighth Amendment’s prohibition on
disproportionate punishment is deeply rooted in
centuries of history. See Solem, 463 U.S. at 284–86
(examining history of proportionality and Eighth
Amendment).
The principle of proportionality in punishment
predates Magna Carta, which in 1215 provided that
“[a] Free-man shall not be amerced for a small fault,
but after the manner of the fault; and for a great fault
after the greatness thereof, saving to him his
contenement[.]” Timbs, 139 S. Ct. at 687–88 (citing §
20, 9 Hen. III, ch. 14, in 1 Eng. Stat. at Large 5 (1225)).
Magna Carta required that sanctions be proportionate
to the offense, taking into consideration an
individual’s circumstances or characteristics. See id.
at 688. See also 4 W. Blackstone, Commentaries on the
Laws of England 372 (1771) (discussing Magna
Carta’s “rule” that “no man shall have a larger
amercement imposed upon him, than his
circumstances or personal estate will bear[.]”).
Magna Carta’s proportionality principle was
also applied to physical punishments. Thirteenth
century jurist and commentator William Bracton
wrote that corporal punishment must be “heavy or
light depending upon whether the crimes are major or
minor.” 2 William Bracton, On the Laws and Customs
of England 298 (Samuel E. Thorne, trans., Harvard
Univ. Press 1968). He emphasized: “It is the duty of
9
the judge to impose a sentence no more and no less
severe than the case demands[.]” Id. at 299.
And in 1615, the King’s Bench applied that
same proportionality principle to the length and
conditions of imprisonment. Hodges v. Humkin, the
Maior of Liskerret, 80 Eng. Rep. 1015 (K.B. 1615)
(“Imprisonment ought always to be according to the
quality of the offense, and so is the Statute of Magna
Charta cap. 14[.]”).
Similarly, the principle that laws or practices
may fall out of use over time has a long history in
common law. While customary laws find their
authority through “long and immemorial usage, and
by their universal reception[,]” 1 W. Blackstone,
Commentaries on the Laws of England 64 (1765),
“[c]ustome . . . lose[s its] being, if usage faile.” Edward
Coke, The Compleat Copyholder (1630), reprinted in 2
The Select Writings and Speeches of Sir Edward Coke
564 (Steve Sheppard ed., 2003).
The English Bill of Rights, adopted in the 17th
Century, built on this history, providing that
“excessive Baile ought not to be required nor excessive
Fines imposed nor cruell and unusuall Punishments
inflicted.” 1 W. & M., sess. 2, ch. 2 (1688).
The punishments clause in the English Bill of
Rights is inextricably entwined with the case of Titus
Oates. Oates had falsely testified to an elaborate plot
to assassinate the king, resulting in more than a dozen
people being tried and executed. See Anthony F.
Granucci, “Nor Cruel and Unusual Punishments
Inflicted:” The Original Meaning, 57 CAL. L. REV. 839,
857 (1969). He was subsequently convicted of perjury
and sentenced to life imprisonment, and to be
defrocked, fined, heavily whipped, and to be pilloried
10
four times a year for life. The Second Trial of Titus
Oates, D.D. at the King’s-Bench, for Perjury, A.D.
1685, in 10 Cobbett’s Complete Collection of State
Trials 1227, 1314, 1316-17 (T. Howell ed., 1811)
(Cobbett’s Trials).
Oates’ sentencing inspired the cruel and
unusual punishments clause in the English Bill of
Rights. See 10 H.C. Jour. 247 (1689) (discussing
Oates’s case and stating that “the Commons had a
particular Regard to these Judgments, amongst
others, when that Declaration was first made”). And
following its adoption in 1689, Oates promptly
petitioned Parliament for release from judgment
under the new clause. Cobbett’s Trials, supra at 1317.
The House of Commons voted to reverse his
judgment, asserting that Oates’ sentence was “cruel,”
“unusual,” and “of ill Example to future Ages.” 10 H.C.
Jour. 247 (1689). Representatives objected to the
magnitude of his sentence, including his “perpetual
Imprisonment[,]” asserting that it was “unusual That
an Englishman should be exposed upon a Pillory, so
many times a Year, during his Life[,]” and “cruel” for
a man to be “whipped in such a barbarous manner, as,
in Probability, would determine in Death.” Id.
Notably, fines, imprisonment, whippings, and
the pillory were all in regular use at that time.
Bessler, supra at 387. Lawmakers objected not to
those methods standing alone, but to their
combination, when imposed for the crime of perjury.
In the House of Commons, representatives protested
that “[t]here may be a Precedent for whipping, but for
all these parts in one Judgment, let any man give us
a Precedent to square with that Judgment.” 9 Debates
11
of the House of Commons, From the Year 1667 to the
Year 1694, 291 (Anchitell Grey ed., 1763).
The Members of Parliament used contemporary
mores as their measuring stick for disproportionality.
Perjury had once been a capital offense. See Cobbett’s
Trials, supra at 1314 (presiding judge commenting on
the historical punishment for perjury). The
punishments inflicted, sparing his life, would not have
been disproportionate in comparison to that historical
standard. But when applying contemporary
standards, representatives decried the excessive
whipping, life imprisonment, and dignitary harms
from repeated pillorying, and asserted that the
sentence should be declared in violation of the recent
Declaration of Rights and the “ancient Right of the
People of England, that they should not be subjected
to cruel and unusual Punishments[.]” 10 H.C. Jour.
247 (1689) (emphasis in original).
C.
Early American Case Law Confirms
That the Eighth Amendment’s
Language Prohibits Disproportionate
Punishments Guided by
Contemporary Standards.
Early decisions by state courts applying
language identical or analogous to the Eighth
Amendment confirm the Amendment’s original
meaning. This inquiry into early case law can be a
“critical tool of constitutional interpretation.” Heller,
554 U.S. at 605. Early American courts considering
whether punishments were “cruel” or “unusual” did so
using proportionality and contemporary standards.
In Jones v. Commonwealth, the Virginia
Supreme Court considered that state’s constitutional
prohibition against “cruel and unusual punishments.”
12
5 Va. (1 Call) 555, 557 (Va. 1799). The court
overturned a sentence imposing a joint fine and
imprisonment until the fine was paid, because one
defendant’s inability to pay would result in
disproportionate punishment for the others. Id. at
557–58 (“[I]n every information or indictment the fine
or amercement ought to be according to the degree of
the fault and the estate of the defendant.”).
Similarly, in Ely v. Thompson, the Kentucky
Court of Appeals applied a proportionality analysis in
holding that a statute punishing a person of color who
“lift[ed] his or her hand in opposition” to a white
person was unconstitutional under the state’s Eighth
Amendment analogue. 10 Ky. (3 A.K. Marsh) 70, 71,
74 (Ky. 1820). The court concluded that it would be
“cruel” to punish someone for acts carrying no
criminal culpability, such as self-defense or the
defense of others. Id. at 72, 74. See also Rogers v.
Commonwealth, 5 Serg. & Rawle 463, 465–68 (Pa.
1820) (considering “usual” punishments and
proportionality to strike down punishment of fine and
two years of imprisonment at hard labor for assault
with intent to pickpocket); Ex parte Hickey, 12 Miss.
(4 S. & M.) 751, 778, 781 (Miss. 1844) (invoking
proportionality principles and surveying current law
in other states to strike down common law power of
courts to imprison people for contempt because it
allowed for “punishment [to] be inflicted to a cruel, an
unusual and excessive degree”); McDonald v.
Commonwealth, 53 N.E. 874, 875 (Mass. 1899), aff’d,
180 U.S. 311 (1901) (“But it is possible that
imprisonment in the state prison for a long term of
13
years might be so disproportionate to the offense as to
constitute a cruel and unusual punishment.”).
In James v. Commonwealth, the Pennsylvania
Supreme Court applied contemporary standards
when determining under the common law that the
ducking stool 2 had fallen out of use and therefore
could no longer be imposed to punish the “common
scold.” 12 Serg. & Rawle 220, 231 (Pa. 1825). 3 In an
analysis strikingly similar to that used by this Court
today, the Pennsylvania court surveyed historical and
contemporary usage of the ducking stool. The court
determined that it had largely fallen into disuse,
resulting in its “repeal[] by the voice of humanity, and
not by positive law[.]” Id. at 227. The court also
considered contemporary mores, noting that the
public considered ducking to be a “cruel, unusual,
unnatural and ludicrous judgment.” Id. at 225. And
the court traced the history of the ducking stool, again
applying contemporary mores when describing with
disapproval the misogynistic roots of a punishment
inflicted primarily against poor women. See id. at 226,
230. The court held that though the ducking stool had
seen some modern use, the recent examples provided
“too slight a foundation on which to rest a sentence, so
hostile to all the policy and humanity of our penal
2 The punishment included being secured to a stool and “plunged
three times in the water.” James, 12 Serg. & Rawle at 225.
3 The court did not apply the letter but the spirit of the federal
and state constitutions. James, 12 Serg. & Rawle at 235 (“I do
not take into consideration the humane provisions of the
constitutions of the United States and of this state, as to cruel
and unusual punishments, further than they show the sense of
the whole community.”).
14
code, and so much opposed to the sense of the
community.” Id. at 234.
II.
This Court’s Eighth Amendment
Jurisprudence Has Firmly Entrenched
the Proportionality Principle.
Consistent with its original meaning and the
early practice of American state courts, this Court has
long recognized the cruel and unusual punishments
clause as prohibiting disproportionate punishments,
informed by contemporary standards and practices.
As early as 1910, the Court recognized that at
the core of the right to be free from cruel and unusual
punishments is the basic “precept of justice that
punishment for crime should be graduated and
proportioned to [the] offense.” Weems, 217 U.S. at 367.
And the Court has always required this
proportionality principle to be informed by society’s
changing mores. See, e.g., Trop v. Dulles, 356 U.S. 86,
100–01 (1958) (citing Weems for the proposition that
the scope of the Eighth Amendment’s words are “not
static”). The Court has continued to apply these same
principles for more than a century. See, e.g., Miller v.
Alabama, 567 U.S. 460, 469–70 (2012) (explaining
that the “concept of proportionality” is “central to the
Eighth Amendment” and must be viewed “according
to the evolving standards of decency that mark the
progress of a maturing society” and citing to Weems
and Trop) (alterations, citations, and quotation marks
omitted).
A.
The Court Has Embraced the
Proportionality Principle for More
Than a Century.
The Eighth Amendment’s proportionality
principle was first articulated in Justice Field’s
15
dissent in O’Neil v. Vermont, 144 U.S. 323, 339–40
(1892). The majority did not reach the issue, but
Justice Fields explained that the Eighth Amendment
prohibited “all punishments which by their excessive
length or severity are greatly disproportioned to the
offenses charged.” Id. While the punishment at issue
in that case—54 years of hard labor—might be
appropriate for “felonies of an atrocious nature,” it
was excessively severe when applied to the
defendant’s conviction for unlawfully selling
alcohol. Id.
In 1910, the Court fully embraced this
proportionality principle in Weems, where, for the first
time, it found a sentence—fifteen years of hard labor
in chains and permanent loss of civil liberties for
falsifying an official document—to be cruel and
unusual punishment. 217 U.S. at 365–66, 381. The
Court rejected the view that the Eighth Amendment
proscribes only “inhuman and barbarous” methods of
punishments, id. at 368, emphasizing instead “a
precept of justice that punishment for crime should be
graduated and proportioned to [the] offense,” id. at
367. Applying this principle, the Court considered
whether “[t]he purpose of punishment,” including
preventing crime and furthering “reformation,” could
be fulfilled by a less severe punishment, as well as
whether the punishment was in line with other
contemporary sanctions and was proportional to the
culpability of the defendant. Id. at 381–82.
Weems explained that the clause is
“progressive, and is not fastened to the obsolete but
may acquire meaning as public opinion becomes
enlightened by a humane justice.” Id. at 378.
Otherwise, the Eighth Amendment’s protections
16
“would have little value and be converted by precedent
into impotent and lifeless formulas.” Id. at 373.
In its next major cruel and unusual
punishments case, Trop v. Dulles, the Court reviewed
the constitutionality of a statute that stripped
military deserters of their citizenship. 356 U.S. at 87–
88. The plurality reaffirmed that the right is “not
static,” but prohibits punishment that is contrary to
the “evolving standards of decency that mark the
progress of a maturing society.” Id. at 101.
Articulating the proportionality principle, the Court
explained that “[f]ines, imprisonment and even
execution may be imposed depending upon the
enormity of the crime . . . .” Id. at 100 (emphasis
added). And, again, the Court emphasized the
punishment’s mismatch to the culpability of a
defendant, whose conduct “may be prompted by a
variety of motives—fear, laziness, hysteria or any
emotional imbalance.” Id. at 91.
Thus, by 1958, the Court had established that
the cruel and unusual punishments clause requires
consideration of a punishment’s proportionality to the
offense, as informed by current societal standards.
Over the following six decades, the Court
consistently employed this proportionality principle in
its Eighth Amendment length-of-sentence, death
penalty, and conditions of confinement cases. See, e.g.,
Miller, 567 U.S. at 469–70 (holding that mandatory
juvenile life without parole violates the Eighth
Amendment and stating that “‘[t]he concept of
proportionality is central to the Eighth Amendment.’
And we view that concept less through a historical
prism than according to ‘the evolving standards of
17
decency that mark the progress of a maturing
society’”) (citations omitted); Atkins v. Virginia, 536
U.S. 304, 311–12 (2002) (prohibiting the execution of
people with intellectual disabilities and stating that
the Court has “repeatedly applied [Weems’s]
proportionality precept” and “a claim that punishment
is excessive is judged not by the standards that
prevailed in 1685 . . . but rather by those that
currently prevail”); Farmer v. Brennan, 511 U.S. 825,
833 (1994) (holding that the cruel and unusual
punishments clause prohibits “gratuitously allowing
the beating or rape of one prisoner by another,”
because it impermissibly adds punishment to “‘the
penalty that criminal offenders pay for their offenses
against society’” and “serves no ‘legitimate penological
objectiv[e],’ any more than it squares with ‘evolving
standards of decency’”) (citations omitted).
The Court also consistently located this
proportionality principle in the text, history, and
tradition of the Eighth Amendment. For example, in
Solem, the Court examined the constitutional text and
history, tracing the principle of proportionality from
Magna Carta through the adoption of the Eighth
Amendment to conclude that proportionality is
“deeply rooted” in history and that the Framers
“intended to provide . . . the right to be free from
excessive punishments.” Solem, 463 U.S. at 284, 286,
287–88. Moving on to precedent, it found that “[t]he
constitutional principle of proportionality has been
recognized explicitly in this Court for almost a
century.” Id. at 286. See also Roper v. Simmons, 543
U.S. 551, 560–61 (2005) (interpreting the clause
“according to its text, by considering history, tradition,
and precedent, and with due regard for its purpose
and function in the constitutional design,” to support
18
“the propriety and affirm[] the necessity of referring
to ‘the evolving standards of decency that mark the
progress of a maturing society’ to determine which
punishments are so disproportionate as to be cruel
and unusual”) (citing Trop, 356 U.S. at 100–101). 4
B.
The Court Has Identified
Three Core Considerations in
Implementing the Cruel and
Unusual Punishments Clause.
In applying the proportionality demand of the
Eighth Amendment, the Court has consistently relied
on three critical considerations. First, punishments
must be evaluated in light of the seriousness of a
particular offense, as viewed by current society. See,
e.g., Coker v. Georgia, 433 U.S. 584, 597 (1977)
(looking to “recent events evidencing the attitude of
state legislatures and sentencing juries” to hold that,
while permissible for murder, capital punishment was
disproportionate to the crime of rape); Solem, 463 U.S.
at 296, 297 n.22 (holding life without parole
disproportionate to a crime that “involved neither
violence nor threat of violence to any person” and was
“one of the most passive felonies a person could
commit”); Kennedy v. Louisiana, 554 U.S. 407, 420
4 Justice Scalia surveyed this same history and concluded that
the Eighth Amendment contains no proportionality principle. See
Harmelin v. Michigan, 501 U.S. 957, 966–85 (1991) (opinion of
Scalia, J.). But Justice Scalia’s analysis has never been endorsed
by a majority of this Court. And it has been rejected by legal
historians, who describe it as “deeply—even fatally—flawed[,]”
“eschew[ing] any historical analysis” and instead “rel[ying] solely
on abstract logic.” Original Meaning, supra, at 1759, 1764. See
also Michael J. Zydney Mannheimer, Harmelin’s Faulty
Originalism, 14 Nevada L.J. 522 (2014) (refuting Scalia’s
conclusions).
19
(2008) (concluding, in light of evolving societal
standards, that “[t]hough the death penalty is not
invariably unconstitutional,” it is disproportionate to
non-homicide crimes).
Second, the Court has evaluated the “severity
of the punishment in question” by looking to the
“culpability of the offenders at issue in light of their
crimes and characteristics.” Graham, 560 U.S. at 67;
see also Enmund, 458 U.S. at 801 (holding that a
defendant’s “punishment must be tailored to his
personal responsibility and moral guilt”); Thompson,
487 U.S. at 821–23 (prohibiting execution for offenses
committed under age sixteen after finding that
“indicators of contemporary standards of decency
confirm our judgment that such a young person is not
capable of acting with the degree of culpability that
can justify the ultimate penalty”).
Third, the Court has considered whether the
punishment “serves legitimate penological goals.”
Graham, 560 U.S. at 67. This is because “[a] sentence
lacking any legitimate penological justification is by
its nature disproportionate to the offense.” Id. at 71.
In Atkins, for example, the Court examined whether
the execution of intellectually disabled individuals
would “measurably advance the deterrent or the
retributive purpose of the death penalty.” 536 U.S. at
319–21. Unpersuaded, the Court held, “in the light of
our ‘evolving standards of decency’ . . . such
punishment is excessive.” Id. at 321. 5 See also
5 The Court also considers culpability in its evaluation of the fit
between the punishment and the penological goal of retribution.
See Atkins, 536 U.S. at 319 (“With respect to retribution—the
interest in seeing that the offender gets his ‘just deserts’—the
20
Enmund, 458 U.S. at 798 (asserting that a
punishment that does not “measurably contribute[]”
to recognized penological goals “‘is nothing more than
the purposeless and needless imposition of pain and
suffering,’
and
hence
an
unconstitutional
punishment”) (citation omitted); Ewing v. California,
538 U.S. 11, 29 (2003) (“[O]ur proportionality review
of Ewing’s sentence must take [the legitimate
penological] goal into account.”); Farmer, 511 U.S. at
833; Gregg v. Georgia, 428 U.S. 153, 183 (1976).
III.
Robinson Fits Squarely Within This
Unbroken Understanding of the Cruel
and Unusual Punishments Clause.
While Petitioner describes Robinson v.
California as an “outlier,” Pet. Br. 38, it does not ask
this Court to reconsider, much less reverse, that
decision. In fact, Robinson is fully consistent with the
Court’s longstanding proportionality approach to the
Eighth Amendment: It holds, in effect, that it is
disproportionate to punish someone for the status of
being addicted to drugs.
The Robinson Court invalidated a 90-day term
of imprisonment for the offense of “be[ing] addicted to
the use of narcotics.” 370 U.S. at 660, 667. Central to
Robinson’s holding is the premise that a punishment
“cannot be considered in the abstract.” Id. at 667.
Applying this principle, Robinson held that any
punishment for the “‘status’ of narcotic addiction,” was
cruel and unusual. Id. at 666.
severity of the appropriate punishment necessarily depends on
the culpability of the offender.”).
21
Robinson’s reasoning reflects the same critical
considerations present in the Court’s prior Eighth
Amendment cases. First, the Court made clear that
“imprisonment for ninety days is not, in the abstract,
a punishment which is either cruel or unusual,” but
only when applied to the crime of “addiction.”
Id. at 667.
Second, the Court considered the punishment
in light of the diminished culpability of the individual,
who may have “innocently or involuntarily” become
addicted to narcotics and who is not “guilty of any
antisocial behavior.” Id. at 666–67. The Robinson
Court evaluated culpability “in the light of
contemporary human knowledge,” citing recent
scientific journal articles. Id. at 666, 667 n.9. 6
Third, the Court considered whether less
punitive approaches could better serve the state’s
goals of “discouraging the violation” of narcotics
trafficking laws and furthering the “general health or
welfare of its inhabitants.” Id. at 664–65. The
disproportionality of the punishment was informed by
the fact that the state could achieve its ends through
“a range of” less punitive measures, including “public
health education,” and “ameliorat[ing] the economic
6 Robinson is in line with this Court’s cases finding that certain
punishments are always disproportionate when applied to a
particular “class of offenders.” Miller, 567 U.S. at 470. See, e.g.,
Roper, 543 U.S. at 578 (death penalty for juveniles); Graham, 560
U.S. at 82 (life without parole for non-homicide offenses
committed by juveniles); Miller, 567 U.S. at 470 (automatic life
without parole for juveniles); see also Jones v. Mississippi, 593
U.S. 98, 107–08 (2021) (describing “cases where the Court has
recognized certain eligibility criteria, such as sanity or a lack of
intellectual disability, that must be met before an offender can
be sentenced to death”) (citing Ford v. Wainwright, 477 U.S. 399
(1986) and Atkins, 536 U.S. 304).
22
and social conditions under which those evils might be
thought to flourish.” Id.
Petitioner’s characterization of Robinson as an
outlier relies on dicta from Ingraham v. Wright, which
describes Robinson as belonging to a distinct category
of cases that “impose[] substantive limits on what can
be made criminal and punished as such.” 430 U.S. 651,
667 (1977). 7 More often, however, the Court has
recognized Robinson as embodying the proportionality
principle at the center of its cruel and unusual
punishments jurisprudence. In Gregg, for example,
the Court cited Weems, Trop, and Robinson as
examples of the Court’s focus on excessiveness. 428
U.S. at 171–72. In Solem, the Court described
Robinson as applying the same “principle of
proportionality” endorsed in Weems “to invalidate a
criminal sentence,” emphasizing its refusal to
consider the punishment “in the abstract.” 463 U.S. at
287 (citing Robinson, 370 U.S. at 667). And in Atkins,
the Court cited Robinson as an example of the Court’s
repeated application of the “proportionality precept.”
536 U.S. at 311.
As noted above, Petitioner does not question
Robinson, and its validity is not at issue here. As the
discussion above makes clear, that is for good reason.
Robinson is consistent with this Court’s precedent,
because punishing someone for a status that is beyond
7 The Robinson Court’s consideration of the substantive crime at
issue does not remove it from this line of precedent. As early as
1878, the Court described the cruel and unusual punishments
clause as constraining the “legislative power” to “define offences.”
Wilkerson v. Utah, 99 U.S. 130, 133 (1878). See also Weems, 217
U.S. at 378 (the “legislative power to define crimes and fix their
punishment” is subject to constitutional prohibition).
23
their control is inherently excessive and, therefore,
cruel and unusual.
IV.
The Decision Below Is Consistent with
This Court’s Proportionality
Jurisprudence Under the Eighth
Amendment.
The decision below correctly holds that “it is an
Eighth Amendment violation to criminally punish
involuntarily homeless persons for sleeping in public
if there are no other public areas or appropriate
shelters where those individuals can sleep.” Pet. App.
19a. 8 Under this Court’s longstanding precedent, the
punishment is disproportionate to the “crime.”
The punishment imposed by Grants Pass
cannot be considered “in the abstract.” Robinson, 370
U.S. at 667. Rather, it must be viewed in relation to
the gravity of the offense, “the culpability of the
offenders at issue in light of their crimes and
characteristics,” and whether it furthers a legitimate
penological purpose. Graham, 560 U.S. at 67.
Here, the non-violent, victimless “offense” of
sleeping in public where one has no alternative is not
sufficiently grave to warrant punishment. The
culpability of the Grants Pass plaintiff class is
minimal at worst. They “do not ‘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.’” Pet. App. 14a
n.2 (quoting Martin v. City of Boise, 920 F.3d 584, 617
8 The ordinances at issue in Grants Pass “prohibit individuals
from sleeping in any public space in Grants Pass while using any
type of item that falls into the category of ‘bedding’ or is used as
‘bedding.’” Pet. App. 177a. See also Amicus Br. of U.S. at 8.
24
n.8 (9th Cir. 2019)). They therefore invariably must
violate the City’s prohibition on sleeping in public. See
Enmund, 458 U.S. at 800 (“[A] defendant’s intentionand therefore his moral guilt-[is] critical to ‘the degree
of [his] criminal culpability,’ and the Court has found
criminal penalties to be unconstitutionally excessive
in the absence of intentional wrongdoing.”) (citations
omitted) (third alteration in original). The Ninth
Circuit’s prohibition on punishing individuals who
have no access to shelter for sleeping in public is thus
supported by the “mismatch[] between the culpability
of [the] class of offenders and the severity of [the]
penalty.” Miller, 567 U.S. at 470.
The Grants Pass punishment regime also
“lack[s] any legitimate penological justification” and is
therefore “by its nature disproportionate to the
offense.” Graham, 560 U.S. at 71. Because individuals
with no access to shelter have no choice but to sleep in
public, punishing them for doing so does not further
retribution or deterrence. Retribution “very much
depends on the degree of [a person’s] culpability,” and
so is not furthered by punishing those who have no
choice but to violate the ordinances at issue. Enmund,
458 U.S. at 800. Likewise, a person cannot be deterred
from something they are powerless to change.
Incapacitation is also irrelevant for a low-level, nonviolent offense resulting in, at most, a short stint in
jail. And, far from furthering rehabilitation, imposing
unaffordable fines, jail time, and criminal records only
makes it harder to obtain employment and stable
housing. See Amicus Br. of U.S. at 3–4. The only goal
these ordinances further, as stated by the Grants Pass
City Council President, is “‘to make it uncomfortable
enough for them in our city so they [referring to
homeless individuals] will want to move on down the
25
road.’” Pet. App. 168a (citation omitted, alteration in
original). But our Constitution does not tolerate such
punishments that, in intent and reality, “treat
members of the human race as nonhumans, as objects
to be toyed with and discarded.” Furman v. Georgia,
408 U.S. 238, 270–73 (1972) (Brennan, J., concurring).
Petitioner’s argument to the contrary is
unpersuasive. It concedes, as it must, that the Eighth
Amendment contains a proportionality principle, see
Pet. Br. 23, but argues that courts may only consider
the method of punishment and inquire whether that
method is barbarous, id. at 16. But Petitioner’s
methods-only argument is untethered from the Eighth
Amendment’s text, history, and tradition, which
squarely demonstrate that the punishments clause
does not limit itself to certain methods of punishment
in the abstract, but incorporates a proportionality
principle informed by contemporary standards. Supra
Section I.
Similarly, Petitioner does not ask the Court to
reconsider Robinson, see Pet. Br. 40, but maintains
that the decision below is an impermissible extension
of Robinson’s “rule against status crimes” to “conductbased prohibitions.” Id. at 37. As described above,
however, Robinson applies the same proportionality
principles and considerations found throughout this
Court’s Eighth Amendment jurisprudence. That same
proportionality precept supports the Ninth Circuit’s
holding in the decision below. No extension of
Robinson, or any other case, is required.
Like the 90-day imprisonment in Robinson, the
fines and jail time imposed by Grants Pass, are “not,
in the abstract, . . . punishment[s] which [are] either
cruel or unusual,” Robinson, 370 U.S. at 667, but they
26
are disproportionate as applied to minor “crimes” like
sleeping in public or being addicted to narcotics, where
enforced against individuals who cannot avoid
breaking the law. Petitioner’s insistence on a
status/act distinction obscures the broader principle
at play—penalties are “unconstitutionally excessive in
the absence of intentional wrongdoing.” Enmund, 458
U.S. at 800 (citing Robinson, 370 U.S. at 667; Weems,
217 U.S. at 363; Godfrey v. Georgia, 446 U.S. 420,
433 (1980)).
***
Since 1910, this Court has cautioned that the
legislature’s “great, if not unlimited,” power “to give
criminal character to the actions of men,” risks
becoming a “potent instrument of cruelty.” Weems, 217
U.S. at 372. Laws that criminalize homelessness are
no exception. Under these circumstances, “[t]he
Judiciary has the duty of implementing the
constitutional safeguards that protect individual
rights.” Trop, 356 U.S. at 103. Here, that means
applying the Court’s longstanding and deeply rooted
Eighth Amendment doctrine of proportionality to
uphold the decision below.
CONCLUSION
For the foregoing reasons, the decision of the
court of appeals should be affirmed.
27
April 3, 2024
Respectfully submitted,
Scout Katovich
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad St., 18th Fl.
New York, NY 10004
Jennifer A. Wedekind
Counsel of Record
David D. Cole
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
915 15th St. NW
Washington, DC 20015
T: (202) 548-6610
jwedekind@aclu.org
Evelyn Danforth-Scott
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
425 California St., 7th Fl.
San Francisco, CA 94104
28
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.