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

_________

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 to the United States Court of

Appeals to the Ninth Circuit

_________

AMICUS CURIAE BRIEF OF MATTHEW

DOHERTY, SHAUN DONOVAN, FRED KARNAS,

AND BARBARA POPPE IN SUPPORT OF

RESPONDENTS

RICARDO J. BONILLA

Counsel Of Record

FISH & RICHARDSON P.C.

1717 MAIN STREET

SUITE 5000

DALLAS, TEXAS 75201

(214) 747-5070

RBONILLA@FR.COM

TAYLOR REEVES

FISH & RICHARDSON P.C.

222 DELAWARE AVENUE

17TH FLOOR

WILMINGTON, DE 19801

(302) 652-5070

REEVES@FR.COM

DANIEL H. WADE

WADE@FR.COM

JOSIE LITTLE

LITTLE@FR.COM

FISH & RICHARDSON P.C.

ONE MARINA PARK DRIVE

BOSTON, MA 02210

(617) 542-5070

Counsel for Matthew Doherty, Shaun Donovan, Freed

Karnas, and Barrbara Poppe..

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................... ii

INTEREST OF AMICI CURIAE ............................. 1

SUMMARY OF THE ARGUMENT ......................... 3

ARGUMENT ............................................................ 5

I. A brief history of homelessness in America. ...... 5

II. Homelessness has a disparate impact on

certain vulnerable populations but is

indiscriminate in who it affects. ......................... 9

A. Almost No Population is Immune to

Homelessness ................................................. 9

B. Homelessness Disproportionately Affects

the Most Vulnerable Populations in the

United States. .............................................. 12

1. Homelessness disproportionately

impacts different racial and ethnic

communities. .......................................... 12

2. Homelessness impacts individuals of all

ages. ........................................................ 14

3. Homelessness affects individuals

regardless of location. ............................ 17

III.Criminalization exacerbates homelessness—it

does not help. .................................................... 22

CONCLUSION ....................................................... 35

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Bearden v. Georgia,

461 U.S. 660 (1983) .................................. 28, 29, 30

Blake v. City of Grants Pass,

No. 1:18-cv-01823-CL, 2020 U.S.

Dist. LEXIS 129494 (D. Or. 2020) ........... 25, 26, 31

City of Grants Pass v. Gloria Johnson

and John Logan et al.,

No. 23-175 (2024) ........................................... 24, 25

Government Policies and Practices that

Increase Discrimination,

Poverty & Race Research Action

Council (July 15, 2008) ...................................... 6, 7

Homeless Youth & Sexual Violence.......................... 15

Kennedy v. Louisiana,

554 U.S. 407 (2008) ........................................ 33, 35

Martin v. City of Boise,

920 F.3d 584 (9th Cir. 2019) .................................. 9

Tate v. Short,

401 U.S. 395 (1971) .................................. 26, 27, 28

Statutes

Act of Mar. 9, 1771, ch. 635, § 4, 1771

Pa. Laws 75, 77 ...................................................... 5

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Georgia First Offender’s Act ..................................... 28

Housing Act of 1949 .................................................... 6

Housing and Urban Renewal Act ............................... 6

Stewart B. McKinney Homelessness

Assistance Act, Pub. L. No. 100-77, §

102, 101 Stat 482, 485 (1987) .............................. 19

Other Authorities

Tara Law...................................................................... 7

Other Authorities

Adkins, Matthew. Homelessness in

America: Statistics, Analysis, and

Trends................................................................... 21

Fourteenth Amendment ............................................ 29

America, National Alliance to End

Homelessness (Dec. 15, 2023)................................ 7

Appendix B, The History of

Homelessness in the United States

(July 11, 2018) .................................................... 5, 6

Colonial America, History (June 29,

2023) ....................................................................... 5

Disability and Homelessness, INVISIBLE

PEOPLE (Nov. 9, 2023) .......................................... 14

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Do About It, NATIONAL ALLIANCE TO

END HOMELESSNESS (Jan. 24, 2023) .................... 12

Evidence Behind Approaches that Drive

an End to Homelessness, United

States Interagency Council on

Homelessness (2019) ............................................ 30

Growing Unseen Crisis, The Osceola

Sun (Mar. 23, 2024) ............................................. 18

Harvard University, Housing America's

Older Adults (2018).............................................. 17

Health Resources and Services

Administration, National Advisory

Committee on Rural Health and

Human Services (2014) ........................................ 19

Homeless, But It’s Never Enough. Why

Demand Grows, THE PROVIDENCE

JOURNAL. (Oct. 10, 2023) ..................................... 11

Homelessness Among Older Adults: An

Emerging Crisis, GENERATIONS

JOURNAL (2020) .................................................... 16

Homelessness, BIPARTISAN POLICY

CENTER (Feb. 7, 2023) .......................................... 10

Homelessness and Health: Factors,

Evidence, Innovations That Work,

And Policy Recommendations ............................. 30

v

TABLE OF AUTHORITIES—Continued

Page(s)

Homelessness-Jail Cycle, Urban

Institute (2021) .............................................. 33, 34

Homelessness, Searching Out Solutions:

Constructive Alternatives to the

Criminalization of Homelessness 2

(2012) .................................................................... 32

Housing Problem: How Structural

Factors Explain U.S. Patterns. 1st

ed. University of California Press,

2022 ........................................................................ 8

Housing Not Handcuffs (2019) ........................... 24, 25

Voices of Youth .......................................................... 15

Evidence Behind Approaches That End

Homelessness, 2019 ................................. 22, 23, 24

Improved Race and Ethnicity Measures

Reveal U.S. Population Is Much

More Multiracial, U.S. Census

Bureau (Aug. 12, 2021) ........................................ 13

Income. Zillow (Dec. 11, 2018) ................................ 8, 9

JOINT CENTER FOR HOUSING

STUDIES OF HARVARD

UNIVERSITY, The State of the

Nation’s Housing (2018) ................................ 18, 19

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Jon Kamp and Shannon Najmabadi.

U.S. Homelessness Count Surges

12% to Highest-Recorded Level. Wall

Street Journal (Dec. 15, 2023) ............................... 7

Kimberly Bender et al., Experiences

and Needs of Homeless Youth with A

History of Foster Care ......................................... 16

MacArthur Foundation, Housing: Why

Educators, Health Professionals and

Those Focused on Economic Mobility

Should Care About It (Nov. 16, 2017) ................. 30

NAT’L L. CTR. ON HOMELESSNESS &

POVERTY, HOUSING NOT HANDCUFFS

2019: ENDING THE CRIMINALIZATION

OF HOMELESSNESS IN U.S. CITIES at

50-52 (2019) .......................................................... 24

National Coalition for the Homeless,

Rural Homelessness (Aug. 2020)......................... 18

National Conference of State

Legislatures, Youth Homelessness

Overview (Mar. 29, 2023) .................................... 16

Nearly Two-Thirds, Governing (Aug. 20,

2023) ....................................................................... 8

Nearly Two-Thirds, GOVERNING (Aug.

30, 2023) ............................................................... 21

vii

TABLE OF AUTHORITIES—Continued

Page(s)

New Report Shows Increase in

Homelessness Disproportionately

Affects American Indian and Alaska

Native People, NATIONAL COUNCIL

OF URBAN INDIAN HEALTH (Mar. 8,

2024) ..................................................................... 13

Oregon Statewide Homelessness

Estimates. Portland State

University Homelessness Research

and Action Collaborative (Jan. 1,

2024) ..................................................................... 12

Others, TIME (Nov. 30, 2023)..................................... 7

Parenting, Chapin Hall (2018) ................................. 15

Providence Journal.................................................... 11

Rob Moore, What Would It Cost to End

Homelessness In America? .................................. 11

SCIOTO ANALYSIS (Jan. 16, 2024) .............................. 11

Social Security Administration, How

Much You Could Get From SSI ........................... 14

Suzanne Perea Burns et al., America’s

Housing Affordability Crisis:

Perpetuating Disparities Among

People With Disability ......................................... 14

United States Constitution Eighth

Amendment ........................................................ 3, 9

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Unsheltered and Uncounted: Rural

America's Hidden Homeless, NPR

(July 4, 2019) ........................................................ 18

INTEREST OF AMICI CURIAE1

This brief is submitted to the Court by Matthew

Doherty, Shaun Donovan, Fred Karnas, and Barbara

Poppe, each of whom has significant and recent experience addressing issues related to homelessness and

people affected by it. Matthew Doherty was the executive director of the United States Interagency Council on Homelessness (USICH) from 2015 to 2019. Matthew Doherty currently provides consulting services

to national, state, and local entities focused on strategic responses to homelessness and the implementation of best practices.

Shaun Donovan is the President and CEO of Enterprise Community Partners, 2 a national nonprofit

that exists to make a good home possible for the millions of families without one. Enterprise supports

community development organizations on the ground,

aggregates and invests capital for impact, advances

housing policy at every level of government, and

builds and manages communities. Prior to Enterprise,

Shaun Donovan served as the Director of the U.S. Office of Management and Budget from 2014 to 2017,

the United States Secretary of Housing and Urban

Development (HUD) from 2009 to 2014, and the

1 Pursuant

to Rule 37.6, Amici state as follows: (1) neither

party’s counsel authored the brief in whole or in part; (2) neither

party nor their counsel contributed money that was intended to

fund preparing or submitting the brief; and (3) no person other

than amici, their members, or their counsel contributed money

that was intended to fund preparing or submitting the brief.

Counsel of record for all parties received timely notice of Amici’s

intention to file this amicus brief.

2

See https://www.enterprisecommunity.org/

(1)

2

Commissioner of the New York City Department of

Housing Preservation and Development from 2004 to

2009.

Fred Karnas is the director of the Mental Health

Strategic Impact Initiative (S2i), a project focused on

helping to transform the nation’s mental health system. Prior to being a Senior Fellow at Richmond Memorial Health Foundation, Fred Karnas served as a

senior advisor to then-HUD Secretary Shaun Donovan, acting as a liaison between the Department of

Health and Human Services and the USICH. Fred

Karnas also served as a deputy assistant secretary for

special needs at HUD, director of the Office of AIDS

Housing, executive director of the USICH, director of

the Arizona Department of Housing, and a senior policy advisor at the Department of the Treasury.

Barbara Poppe is the founder of Barbara Poppe

and Associates, a consulting group dedicated to reducing homelessness and housing instability. 3 Prior to

founding Barbara Poppe and Associates, Barbara

Poppe served as the executive director of the USICH

from 2009 to 2014. In 2010, while at the USICH, she

led the development of “Opening Doors,” the first comprehensive federal plan to prevent and end homelessness using research and evidence-based strategies.4

Together, the signatories worked together in the

federal government to implement “Opening Doors”

and demonstrated through sustained national reductions in homelessness that the right strategies

See poppeassociates.com.

Opening Doors: Federal Strategic Plan to Prevent and End

Homelessness, United States Interagency Council on Homeless3

4

ness (2015)

_1.pdf.

USICH_OpeningDoors_Amendment2015_FINAL

3

combining housing and services can end homelessness

for families and individuals. Ordinances such as those

in Grants Pass are not an effective solution to homelessness. In fact, as national experts on homelessness

and housing policy, the signatories submit this brief

to explain to the Supreme Court of the United States

that the Grants Pass ordinances are unconstitutional

because they constitute cruel and unusual punishment under the Eighth Amendment

SUMMARY OF THE ARGUMENT

Under the Eighth Amendment of the United

States Constitution, it is unconstitutional to punish a

person for an involuntary condition. Homelessness is

just such a condition, yet local governments, like

Grants Pass, Oregon, have criminalized the state of

being involuntarily and physically unable to access

shelter. The Grants Pass ordinances punish people for

the universally human acts of, for example, sleeping

or resting and using blankets to keep warm on publicly-owned property. The punishments are overly

harsh for wholly innocent, universal, and unavoidable

human behavior. The Grants Pass ordinances also set

off a banishment race with other municipalities, resulting in a spate of local punishment schemes that

collectively could operate as a nationwide ban on

homelessness and effect cruel and unusual punishment on people who are unable to access shelter.

Homelessness is not voluntary. Homelessness can

affect anyone, and, worse still, it disparately impacts

the most vulnerable among the United States population. Criminalizing an involuntary condition is unconstitutional, and, worse still, rather than providing a

solution for the problems meant to be addressed,

4

criminalization measures only exacerbate the challenges on an individual, local, and national level.

The Grants Pass ordinances do not break these cycles. With this brief, the amici curiae highlight for this

Court that ordinances like those at issue in this case

cause more problems and solve exceedingly few, if any

at all. Instead, individuals with no option other than

to seek shelter in public spaces, and with little to no

resources to combat criminal charges or financial penalties, are subjected to myriad and mounting penalties that do little more than ensure they will remain

trapped in the cycle. The Ninth Circuit’s opinion

should be affirmed lest this Court permit localities

around this country to worsen an issue that both is

indiscriminate in its pervasiveness and disparately

affects many of the most vulnerable among us.

5

ARGUMENT

I. A BRIEF HISTORY OF HOMELESSNESS IN

AMERICA.

The “poor laws” refer to a set of laws instituted by

Queen Elizabeth that allowed local governments in colonial America to increase taxes and use those funds

to build and maintain housing for individuals who

were unable to work, often for age or health-related

reasons, as well as assist in finding work for those who

could work but could not find a job.5 Those laws not

only excluded involuntary vagrancy from punishment, but also affirmatively provided for funds to

“maintain[] and provide[] for” “poor, old, blind, impotent and lame persons or other persons not able to

work within” a city.6 These laws offered protections to

people who would now be considered “homeless.”

The term “homelessness” can be traced back to the

19th century, which intended to describe people who

traveled in search of a job.7 During the Industrialization Movement, more and more individuals travelled

to cities like Boston and Philadelphia in search of

How ‘Poor Laws’ Tried to Tackle Poverty in

Colonial America, History (June 29, 2023), https://www.his-

5 Lesley Kennedy,

tory.com/news/colonial-america-poor-laws

6 Act of Mar. 9, 1771, ch. 635, § 4, 1771 Pa. Laws 75, 77.

7 National Academies of Sciences, Engineering, and Medicine, et

al, Permanent Supportive Housing: Evaluating the Evidence for

Improving Health Outcomes Among People Experiencing

Chronic Homelessness. Washington (DC): National Academies

Press (US), Appendix B, The History of Homelessness in the

United

States

(July

11,

https://www.ncbi.nlm.nih.gov/books/NBK519584/

2018),:

6

work.8 “By the 1850s, lodging rooms for vagrants located in police stations served as the major shelter

system, and most major cities reported increasing

numbers of vagabonds[.]”9 Following the construction

of the railways, able-bodied men began traveling

cross-country in search of work. Years later, “the typical individual experiencing homelessness continued

to be disproportionately white and male but became

increasingly older (usually over 50 years old), disabled, dependent on welfare or social security, and resided in cheap hotels, flophouses, and in single room

occupancy hotels (SROs) located in the poorest neighborhoods and Skid Row areas of urban America.”10

Following World War II, the United States government began attempting to address the shortage of

housing, enacting the Housing Act of 1949 to combat

America’s housing shortage. In 1965, the government

both enacted the Housing and Urban Renewal Act11

and formally created HUD to provide Americans with

greater access to housing.12 The 1970’s brought rising

homeownership rates and construction of new rental

housing, with homelessness a rare and temporary

Id.

9 Id.

10 Id.

8

11 Notably, this Act hurt more than it helped and increased hous-

ing discrimination by displacing minorities in favor of white

Americans. See George Lipsitz, Government Policies and Practices that Increase Discrimination, Poverty & Race Research Action Council (July 15, 2008), http://www.prrac.org/projects/fair_housing_commission/chicago/lipsitz.pdf. [Reference

list]

12 National Academies of Sciences, Engineering, and Medicine, et

al, supra note 7.

7

situation.13 In the early 1980’s a surge of people experiencing homelessness emerged as federal investment

in affordable housing dramatically decreased. 14

America again saw increased numbers of those experiencing homelessness following the Great Recession

of 2007 and the COVID-19 pandemic.15

There is not enough federal, state, and local funding to support people currently experiencing homelessness secure and sustain permanent housing, or to

address the housing crises that leads to homelessness

in the first place. But we have seen what works—despite the overall trends, the rate of homelessness

among military veterans has dropped by more than

one-half since 2010 due to increased investment in

proven solutions to provide housing, services, and

healthcare. 16 Additionally, some communities have

created local response systems that are effectively reducing unsheltered homelessness. For example,

13 Id.

14

Id.

Jon Kamp and Shannon Najmabadi. U.S. Homelessness

Count Surges 12% to Highest-Recorded Level. Wall Street Jour-

15

nal (Dec. 15, 2023), https://www.wsj.com/us-news/record-homeless-united-states-2023-ef86f904; HUD Releases 2023 AHAR

Data: 12 Key Data Points to Understand the Current State of

Homelessness in America, National Alliance to End Homeless-

ness (Dec. 15, 2023), https://endhomelessness.org/blog/hud-releases-2023-ahar-data-12-key-data-points-to-understand-thecurrent-state-of-homelessness-in-america/.

16 Tara Law, Why the Major Drop in Veteran Homelessness Of-

fers

TIME

(Nov.

30,

Hope

to

Others,

https://time.com/6341061/veteran-homelessness-hope/

2023),

8

Houston cut homelessness by nearly two-thirds over a

twelve-year period.17

Recently-published research shows that factors

such as mental illness, substance abuse, poverty, and

regional conditions do not explain variations, and it

suggests that people who experience homelessness are

most impacted by macro-economic conditions rather

than things people can choose or control. 18 These

macro-economic conditions include the rising cost of

rent and low wages that price people out of housing in

the area(s) where they work.19

Homelessness in not voluntary. Consider this

Court’s decision in Robinson v. California, where this

Court addressed the question of whether California

could criminalize the status of being a narcotics addict.20 The Court recognized a narcotics addiction is

an illness, one “which may be contracted innocently or

involuntarily,” and observed that a “law which made

a criminal offense of ... a disease would doubtless be

universally thought to be an infliction of cruel and unusual punishment.”21 Robinson held the challenged

17 Alan Greenblatt, How Houston Cut Its Homelessness Popula-

tion by Nearly Two-Thirds, Governing (Aug. 20, 2023),

https://www.governing.com/housing/how-houston-cut-its-homeless-population-by-nearly-two-thirds.

18 See, e.g., Gregg Colburn and Clayton Page Aldern. Homeless-

ness Is a Housing Problem: How Structural Factors Explain U.S.

Patterns. 1st ed. University of California Press, 2022.

https://doi.org/10.2307/j.ctv2kx88m9.

Homelessness Rises Faster Where Rent Exceeds a Third of Income. Zillow (Dec. 11, 2018) https://www.zil-

19 Zillow Research.

low.com/research/homelessness-rent-affordability-22247/

20 370 U.S. 660, 666-67 (1962).

21 Id.

9

statute violated the Eighth Amendment. The Ninth

Circuit in Martin v. City of Boise, 920 F.3d 584, 615

(9th Cir. 2019), addressed Robinson and later Supreme Court decisions and found that “five Justices

gleaned from Robinson the principle that ‘that the

Eighth Amendment prohibits the state from punishing an involuntary act or condition if it is the unavoidable consequence of one's status or being.’”22 The Supreme Court should apply similar logic here — people

experience homelessness for involuntary reasons, and

such a punishment of an involuntary attribute constitutes cruel and unusual punishment.

II. HOMELESSNESS HAS A DISPARATE IMPACT

ON CERTAIN VULNERABLE POPULATIONS

BUT IS INDISCRIMINATE IN WHO IT

AFFECTS.

A. Almost No Population is Immune to Homelessness

Because of the macro-economic factors mentioned

above, people of various backgrounds can experience

involuntary homelessness.

Homelessness affects more than 650,000 people on

any given night, with over 250,000 of that population

living in unsheltered homelessness, 23 and it cuts

across all sectors of society. In data from 2022, 60% of

the homeless individuals identified were located in

22 Id. (citing Jones v. City of Los Angeles, 444 F.3d 1118, 1135

(9th Cir. 2006)).

23 The U.S. Dep’t of Hous. and Urb. Dev., The 2023 Annual

Homelessness Assessment Report (AHAR to Congress) Part 1:

Point-In-Time Estimates of Homelessness, (herein, “The 2023

AHAR Report”). (Dec. 2023) https://www.huduser.gov/portal/sites/default/files/pdf/2023-AHAR-Part-1.pdf, at 10;

10

temporary, emergency shelters, while 40% had no access to emergency shelter and so struggled to survive

on the streets or in places that are unfit for human

habitation.24

Homelessness affects people of all ages, but the

population skews older, with people aged 25 or older

accounting for 76% of the homeless population.25 But

homelessness affects young people, too: 17% are under

age 18, and 7% are between the ages of 18 to 24.26 It

affects both sexes, with men/boys of any age accounting for around 60% of the homeless population and

women/girls of any age accounting for 38%.27 Homelessness also affects every race, with those identifying

as white accounting for 50% of those experiencing

homelessness, while racial minorities account for the

rest, which is discussed below.28

Homelessness amongst all these demographics is a

product of challenging economic forces and a lack of

funding for a problem that would take billions of dollars to address.29 Currently, individuals are facing a

24 Francis Torres, Housing Supply and the Drivers of Homeless-

ness, BIPARTISAN POLICY CENTER (Feb. 7, 2023), https://bipartisanpolicy.org/report/housing-supply-and-homelessness/?gad_source=1&gclid=CjwKCAjwte-vBhBFEiwAQSv_xU1FJuBxuHChpaSA4sdZwi5BzaX4kEJc3UKeFkEtEV3G8VO7XD6aBoCkAUQAvD_BwE.

25 Id.

26 Id.

27 Id.

28 Id.

29 Rob Moore, What Would It Cost to End Homelessness In

America?, SCIOTO ANALYSIS (Jan. 16, 2024), https://www.sciotoanalysis.com/news/2024/1/16/what-would-it-cost-to-end-homelessness-in-america.

11

one-two punch of (1) a lack of affordable housing and

(2) rapidly rising rental costs.30 Even where systems

are in place to help address the problems, those systems can be highly under-resourced. For example, the

Providence Journal reported that, in 2023, there were

154 households in Rhode Island with vouchers that

would subsidize their rent in private market housing,

but nowhere they could use them.31

Historically, emergency shelter has been the last

refuge protecting people from life on the street, but for

many people today, homeless shelters are not an option. The shelter system is overwhelmed, as more individuals and families seek aid in response to rising

rents, the lack of affordable apartments, and the expiration of the federal supports that were available during the pandemic. Research has shown that there are

simply not enough beds available. In 2023, there were

449,567 shelter beds available, but there was a national shortage of about 200,000 beds for adults experiencing homelessness on a single night. 32 Again,

these national statistics are borne out of individual

states and communities. In a report published January 2024, Oregon had 20,110 people counted as experiencing homelessness, with 13,004 unsheltered.

There were only 8,705 shelter and transitional

30 The 2023 AHAR Report, supra note 23, at 22-23.

31 Wheeler Cowperthwaite, RI Keeps Adding Shelter Space for

The Homeless, But It’s Never Enough. Why Demand Grows, THE

PROVIDENCE JOURNAL. (Oct. 10, 2023), https://www.providencejournal.com/story/news/local/2023/10/10/why-ri-cant-keepup-with-the-need-for-homeless-shelter-beds-overall-housingshortage-stokes-demand/71072433007/.

32 The 2023 AHAR Report, supra note 23, at 91.

12

housing beds so there was a shortfall of 11,405 beds.33

Thus, many individuals find themselves involuntarily

homeless, as they are unable to afford housing and unable to find beds in a shelter.

B. Homelessness Disproportionately Affects the

Most Vulnerable Populations in the United

States.

1. Homelessness disproportionately impacts

different racial and ethnic communities.

Homelessness has a disproportionate impact on

different racial and ethnic populations within our

country. For example, African Americans make up

just 13% of the population but comprise 37% of the

homeless population.34 Similarly, Hispanics make up

around 19% of the population but comprised 24% of

the homeless population during a recent calculation.35

Indigenous Americans make up only 1.1% of the U.S.,

33 Jacen Greene, Franklin Holcomb Spurbeck, and Marisa Za-

pata. et al, 2023 Oregon Statewide Homelessness Estimates.

Portland State University Homelessness Research and& Action

Collaborative (Jan. 1, 2024) https://www.pdx.edu/homelessness/oregon-statewide-homelessness-estimates;.

34 The 2023 AHAR Report, supra note 23, at 14.

35 Melissa Chinchilla et al., Increasing Latino Homelessness—

What’s Happening, Why, and What to Do About It , NATIONAL

ALLIANCE TO END HOMELESSNESS (Jan. 24, 2023), https://endhomelessness.org/wp-content/uploads/2023/01/Latino-Homelessness_ResearchBrief_01242023_FINAL.pdf#:~:text=The%20latest%20PIT%20Count%20data%20shows%20that%20people,around%2019%20percent%20of%20the%20total%20U.S.%20population.

13

population,36 but indigenous people make up 4% of the

homeless population and are more likely to live in unsheltered settings.37

2. Homelessness disproportionately affects indi-

viduals with disabilities.

Disabilities also make it harder to avoid homelessness. As many as 31% of the chronically homeless population also has a disability.38 Shelters are not always

options for persons living with disabilities because

shelters are overwhelmed with demand, 39 and they

may not have features (e.g., wheelchair ramps) that

are necessary to accommodate these individuals. 40

Some people with disabilities may also have mental

36 Nicholas Jones et al, Improved Race and Ethnicity Measures

Reveal U.S. Population Is Much More Multiracial, U.S. Census

Bureau (Aug. 12, 2021), https://www.census.gov/library/stories/2021/08/improved-race-ethnicity-measures-reveal-unitedstates-population-much-more-multiracial.html#:~:text=In%202020%2C%20the%20American%20Indian%20and%20Alaska%20Native,such%20as%20White%20or%20Black%20or%20African%20American.

37 Jeremy Grabiner, New Report Shows Increase in Homeless-

ness Disproportionately Affects American Indian and Alaska Native People, NATIONAL COUNCIL OF URBAN INDIAN HEALTH (Mar.

8,

2024),

https://ncuih.org/2024/03/08/new-report-shows-increase-in-homelessness-disproportionately-affects-american-indian-and-alaska-native-people/.

38 The 2023 AHAR Report, supra note 23, at 26.

39 The 2023 AHAR Report, supra note 23, at 91.

40Kayla Robbins, The Vicious Cycle of Disability and Homeless-

ness, INVISIBLE PEOPLE (Nov. 9, 2023), https://invisiblepeople.tv/the-vicious-cycle-of-disability-and-homelessness/#:~:text=A%20disproportionate%20number%20of%20unhoused,unique%20barriers%20to%20supporting%20themselves..

14

health challenges in the form of anxiety, PTSD, or addiction that make it difficult for them to live around

other people or in crowded conditions. Individuals

with disabilities are also more likely to face discrimination when attempting to rent properties, which further increases their risk of homelessness and creates

barriers for people who are experiencing homelessness.

As with other populations, homelessness amongst

the disabled community is also a feature of the housing crisis in the United States.41 In 2021, a one-bedroom apartment was 131% of the monthly income for

a person with a disability.42 Disabled individuals may

be unable to work and subsequently rely on Social Security Income (SSI), which is not enough to meet the

escalating cost of housing. According to the Social Security Administration, the maximum federal SSI payment in 2024 is only $943 for an individual.43 This

income is well below the federal poverty line and cannot meet the needs of the current housing landscape.

2. Homelessness impacts individuals of all

ages.

In 2014, it was estimated that approximately

550,000 young people had experienced homelessness

41 The 2023 AHAR Report, supra note 23, at 26.

42 Suzanne Perea Burns et al., America’s Housing Affordability

Crisis: Perpetuating Disparities Among People With Disability ,

36 DISABILITY & SOCIETY 1719 (2021).

43 Social Security Administration, How Much You Could Get

From SSI, https://www.ssa.gov/ssi/amount.

15

for over a week.44 Of this population, 380,000 were

under the age of 18, and 170,000 were aged 18 to 24.45

Many youth are unhoused through no choice of their

own but because a parent is unhoused. 44 percent of

women between the ages 18 and 25 who experience

homelessness are pregnant or are parents.46 It is estimated that 1.1 million children have a young parent

who was recently unhoused. 47 Homeless youth also

face particular legal challenges in obtaining housing.48 For example, there is a lack of homeless service

providers who assist minor parents. 49 Some states

may require parental consent for minors to obtain

housing, and homeless youth may not have access to

obtaining identification records that are necessary for

obtaining work, and consequently, affording housing.50

44National Sexual Violence Resource Center, Homeless Youth &

Sexual Violence, https://www.nsvrc.org/sites/default/files/publications/2019-02/HomelessYouth_Final%20508.pdf..

45 Id.

46 Chapin Hall at the University of Chicago, Voices of Youth

Count: Understanding and ending youth homelessness,

https://www.chapinhall.org/project/voices-of-youth-count/.

47 Amy Dworsky et. al., A Substantial Number of Youth Experiencing Homelessness are Pregnant or Parenting, Chapin Hall

(2018), https://www.chapinhall.org/research/a-substantial-number-of-youth-experiencing-homelessness-are-pregnant-or-parenting/.

48 Chapin Hall, supra note 46.

49 Dworsky, supra note 47.

50 National Conference of State Legislatures, Youth Homeless-

ness Overview (Mar. 29, 2023), https://www.ncsl.org/human-services/youth-homelessness-overview.

16

Homelessness presents particular dangers to

youth, who are at increased risk of sexual violence.

Youth experiencing homelessness are more likely to

have experienced abusive home lives, including emotional abuse and neglect, physical abuse, and sexual

abuse.51 They may seek refuge in the streets because

they need to escape abusive conditions in their homes.

Therefore, it would not be accurate to describe these

youth as voluntarily homeless.

Homelessness is also increasing amongst older

adults. Adults aged 50 and above are the fastest growing group of people experiencing homelessness, and

many have become unhoused as a result of the affordable housing crisis.52 In the early 1990s, 11% of people

experiencing homelessness were 50 or older. In 2003,

it was 37%. Today, around 50% are 50 years or older.53

Older adults have the highest risk of paying more

than 30% of their income on housing. 54 The consequence of paying so much money on rent is that these

elderly individuals are often unable to accumulate

savings, making them particularly vulnerable to becoming unhoused as a result of a financial setback.55

51 Kimberly Bender et al., Experiences and Needs of Homeless

Youth with A History of Foster Care, 55 Children and Youth Ser-

vices Review 222 (2015).

52

Margot Kushel, Homelessness Among Older Adults: An

Emerging Crisis, GENERATIONS JOURNAL (2020), https://generations.asaging.org/homelessness-older-adults-poverty-health.

53 Id.

54 Joint

Center for Housing Studies of Harvard University,

Housing America's Older Adults (2018), https://www.jchs.harvard.edu/sites/default/files/media/imp/Harvard_JCHS_Housing_Americas_Older_Adults_2018.pdf.

55 Kushel, supra note 52.

17

Nearly half of the older homeless population had long

work histories before some pivotal event, such as divorce, job loss, illness, or death of a loved one, forced

them into homelessness.56 They then also struggle to

find housing because they experience a harder time

finding employment.57

It should be noted that the stresses of life on the

street often result in homeless persons in their 50’s

presenting as many years older physically. This presents a significant challenge regarding their ability to

hold employment. And since the safety net of Social

Security does not become available until age 62, many

homeless older adults have no economic options to address their circumstances.

3. Homelessness affects individuals regardless

of location.

Contrary to popular belief, homelessness is not

only a problem for urban communities, as it is increasingly affecting rural Americans.58 For example, half

of Wisconsin’s homeless population lives in rural communities. 59 Rural communities face similar challenges in establishing affordable housing as their urban counterparts because, even though housing costs

are lower in rural areas, wages are also relatively

56 Id.

57 Id.

58 Mary Meehan, Unsheltered and Uncounted: Rural America's

Hidden Homeless, NPR (July 4, 2019), https://www.npr.org/sections/health-shots/2019/07/04/736240349/in-rural-areas-homeless-people-are-harder-to-find-and-to-help.

59 Justin Runberg, Rural Homelessness Is a Growing Unseen

Crisis, The Osceola Sun (Mar. 23, 2024), https://www.osceolasun.com/news/rural-homelessness-is-a-growing-unseen-crisis/article_4418bb88-e5fc-11ee-834a-438f4960e474.html.

18

lower, which causes similar financial burdens.60 Rural communities also face unique challenges when it

comes to housing accessibility. Housing in rural areas

is much more likely to be older, lack basic necessities

such as plumbing, and generally fall below modern

construction standards. 61 Additionally, a lack of access to developers, labor, and construction materials

can be a significant challenge in rural communities.

Another issue that rural communities face is underfunding, which is a consequence of how federal and

state funding is allocated. Federal funding is often

tied to the number of people experiencing homelessness in the community.62 There are challenges, however, in identifying homeless individuals in rural communities because of the spread-out nature of rural

spaces and the relative invisibility of rural homelessness. The issue of an insufficient number of shelter

beds is also prevalent in rural communities, as was

noted in Fremont, Nebraska.63 Individuals in rural

communities can become unhoused through no fault

of their own, as they face both a lack of affordable

housing and a lack of shelters.

60 National Coalition for the Homeless, Rural Homelessness

(Aug.

2020),

https://nationalhomeless.org/wp-content/uploads/2021/03/Rural-Homelessness-Fact-Sheet-2020.pdf.

61 JOINT CENTER FOR HOUSING STUDIES OF HARVARD

UNIVERSITY, The State of the Nation’s Housing (2018),

https://www.jchs.harvard.edu/sites/default/files/jchs_2016_state_of_the_nations_housing_lowres.pdf.

62 Id.

63 Health Resources and Services Administration, National Ad-

visory Committee on Rural Health and Human Services (2014),

https://www.hrsa.gov/sites/default/files/hrsa/advisory-committees/rural/2014-homelessness.pdf.

19

C.

Homelessness is a National Issue and

the Federal Response Has Not Been

Sufficient to End Homelessness

In response to growing numbers of homeless individuals and families, Congress passed the Stewart B.

McKinney Act in 1987. The purpose of the Act was to

“(1) establish an Interagency Council on the Homeless; (2) use public resources in a more coordinated

manner to meet the needs of the homeless; and (3) provide program funds for the homeless, with special emphasis on elderly persons, handicapped persons, families with children, Native Americans, and veterans.” 64 Thereafter, new funding was available from

federal agencies to provide housing, services, shelter,

job training and education, healthcare, mental health

and substance use treatment, and other supports. A

newly established interagency council, now the

USICH, was charged with coordinating the federal response in partnership with state and local governments, the nonprofit and philanthropic sectors, and

faith-based organizations. 65 These interventions

sought to create housing stability using equity, data,

and collaboration to achieve housing and supports,

64 Stewart B. McKinney Homelessness Assistance Act, Pub. L.

No. 100-77, § 102, 101 Stat 482, 485 (1987).

See, e.g., ALL IN: The Federal Strategic Plan to Prevent and

End Homelessness. United States Interagency Council on Homelessness: 2022 Dec. All_In.pdf (usich.gov); Home, Together: The

Federal Strategic Plan to Prevent and End Homelessness.

65

United States Interagency Council on Homelessness: 2018.

Home-Together-Federal-Strategic-Plan-to-Prevent-and-EndHomelessness_3.pdf (usich.gov); Opening Doors: Federal Strategic Plan to Prevent and End Homelessness, United States Interagency Council on Homelessness. (2015). USICH_OpeningDoors_Amendment2015_FINAL_1.pdf.

20

homelessness responses, and prevention solutions. To

that end, the USICH continues to track data on all

types of homelessness and progress to prevent and reduce homelessness.

HUD has provided funding for programs such as

Emergency Solutions Grant (ESG), which provides local and state governments with funding that can be

used to provide homelessness prevention, rapid rehousing, temporary shelter and other services, and

Continuums for Care (CoC), which are local planning

bodies “responsible for coordinating the full range of

homelessness services in a geographic area.”66 Both

of these programs are applicable to all geographic areas. Despite the government’s attempt to combat

homelessness, there has simply not been enough funding or resources to assist persons remaining involuntarily unsheltered. In 2023, HUD found that 4 out of

10 people experiencing homelessness were unsheltered.67

There are bright spots in efforts to reduce homelessness that occur when the scale of the response is

sufficient and aligned with best practices. For example, the rate of homelessness among military veterans

has dropped by more than one-half since 2010 due to

increased investment in proven solutions to provide

housing, services, and healthcare. 68 Some communities have created local response systems that are effectively reducing unsheltered homelessness. For

66 The 2023 AHAR Report,

67

Id.

68 Id.

supra note 23, at 4.

21

example, as noted above, Houston cut homelessness

by nearly two-thirds over a twelve-year period.69

As further noted above, homelessness is not a

unique issue to Grants Pass, Oregon. Reports show

that in 2023, approximately 653,000 people around

the country were experiencing homelessness on any

given night, and that forty-one states had increased

numbers of people without permanent housing.70

HUD is charged by Congress to fund the CoC program. 71 The program “promotes a community-wide

commitment to the goal of ending homelessness” and

equitably deploys homelessness assistance funding.

During FY 2023, $3.2 billion in funding was distributed through a competitive process. The U.S. Department of Veterans Affairs offers an extensive array of

housing, healthcare, mental health, employment/job

training and services to prevent and end homelessness among military veterans.72

And yet, Petitioner seems to suggest homelessness

is a problem unique to Grants Pass. For Grants Pass

to claim that its only viable solution is to push people

experiencing homelessness outside of its city limits,

69 Alan Greenblatt, How Houston Cut Its Homeless Population

by

Nearly Two-Thirds, GOVERNING (Aug. 30, 2023),

https://www.governing.com/housing/how-houston-cut-its-homeless-population-by-nearly-two-thirds

Homelessness in America: Statistics, Analysis, and Trends. Security.org, (Jan. 25, 2024), https://www.secu-

70 Adkins, Matthew.

rity.org/resources/homeless-statistics/.

71 Continuum of care Program. U.S. Department of Housing and

Urban

Development.

fices/comm_planning/coc

https://www.hud.gov/program_of-

72 VA Homeless Programs, U.S. Department of Veterans Affairs,

https://www.va.gov/homeless/.

22

into other locales that also have homeless populations

within their limits, ignores the realities of the homelessness situation across this country. The Grants

Pass ordinances will only exacerbate homelessness in

surrounding areas, as individuals from Grants Pass

who are involuntarily homeless and unsheltered will

be forced to relocate or face compounding fines, arrest,

and incarceration.

The solution to homelessness in America cannot be

pushing human beings outside of cities and communities over and over again via cruel ordinances criminalizing their existence while providing nowhere for

them to go. The proper answer is federal, state, and

local investment, and the implementation of housing

and services models and programs that have been

proven to be effective73 at the scale necessary to address the number of people who are experiencing or at

risk of homelessness. Through such housing and services models, people who are involuntarily experiencing homelessness can be supported to find and secure

permanent housing and to end their homelessness.

Measures which criminalize homelessness do not and

will never support such outcomes for people and for

our communities.

III. CRIMINALIZATION EXACERBATES

HOMELESSNESS—IT DOES NOT HELP.

Criminalization is not the response needed to aid

people experiencing homelessness in Grants Pass or

73 USICH, The Evidence Behind Approaches that Drive an End

to

Homelessness,

USICH

(Sept.

209),

https://www.usich.gov/sites/default/files/document/Evidence-Behind-Approaches-That-End-Homelessness-Brief-2019.pdf

23

anywhere else in the United States. An increasing

amount of research has been conducted in recent

years to shed light on the optimal tools for helping

families and individuals escape homelessness.74 Such

research has been undertaken as a coordinated effort

among various federal and state agencies, including

the U.S. Department of Justice, the U.S. Department

of Health and Human Services, and HUD, along with

local organizations.75 These experts in homelessness

have concluded that community-oriented housing and

service programs, along with collaborations between

health, behavioral health, and social service providers, are the most effective solutions to overcoming

homelessness, instead of laws or ordinances that punish homelessness.76 Indeed, in line with these experts’

findings, the vast majority of jurisdictions have rejected sleeping bans.77

A. Punishing Homelessness Actually Perpetuates

a Cycle of Homelessness.

The Grants Pass ordinances not only fail to address any of the root causes of homelessness, but also

74 See, e.g., U.S. Interagency Council on Homelessness, Searching Out Solutions – Constructive Alternatives to the Criminalization of Homelessness (2012) [hereinafter USICH Report] (documenting solutions generated at a summit dedicated to developing constructive alternatives to criminalizing homelessness).

75 Id. at 44-46.

76 Id. at pp. 2-4

77 See Resp. Br. at 40-42, City of Grants Pass v. Gloria Johnson

and John Logan et al., No. 23-175 (2024) (81.5% of the 200 Amer-

ican cities with populations closest to that of Grants Pass do not

impose sleeping bans, and 46 states and the District of Columbia

similarly do not criminalize resting or sleeping everywhere in

public, with the remaining four states having laws that are far

narrower than the Grants Pass ordinances.)

24

trap homeless individuals in a vicious cycle that increases the likelihood of individuals remaining homeless.78 The presence of a criminal record can disqualify these individuals experiencing homelessness from

obtaining aid that is critical to lifting them out of

homelessness, including disqualification from subsidized housing and drug and mental health treatments, and suspension of benefits.79 The presence of a

criminal record further impacts the ability of these individuals to seek employment and/or private housing,

which often involves a background check, thus continuing the cycle of homelessness.80

Civil citations that require a court appearance can

“lead to warrants for failure to appear,” especially in

cases involving homeless individuals, who “lack a

physical address or phone number” and may not receive notice of relevant hearings.”81 Other barriers to

attending court appearances faced by homeless individuals include a lack of transportation, a lack of storage space for their belongings, and a fear of property

loss.82 The consequences of having a warrant for failure to appear are dire—warrants often lead to incarceration. Further, Grants Pass does not attempt to

78 NAT’L L. CTR. ON HOMELESSNESS & POVERTY, HOUSING NOT

HANDCUFFS 2019: ENDING THE CRIMINALIZATION OF HOMELESSNESS IN U.S. CITIES at 50-52 (2019) [hereinafter HOUSING NOT

HANDCUFFS],

https://homelesslaw.org/wp-content/uploads/2019/12/HOUSING-NOT-HANDCUFFS-2019-FINAL.pdf.

79 See id.

80 See id.

81 Blake v. City of Grants Pass, No. 1:18-cv-01823-CL, 2020 U.S.

Dist. LEXIS 129494, at *54 (D. Or. 2020); see also Housing Not

Handcuffs at 52.

82 See id.

25

disguise the ordinances as mere civil citations: it admits that repeat violators of the ordinances “are subject to prosecution for criminal trespass, which is punishable by 30 days in jail and a $1,250 fine.”83

Additionally, the Grants Pass ordinances impose

substantial fines that are particularly problematic for

homeless individuals. 84 Each violation results in a

mandatory $295 fine that rises to $537.60 as interest

accrues.85 These costs can quickly rise—as an example, Debra Blake received “three $295 fines in the

course of just one morning, along with an exclusion

order subjecting her to arrest if she was ‘found on City

property’ again.” 86 (internal citations omitted). By

March 2020, Debra Blake owed over $5,000 in fines

due to her homelessness.87 These fines remain almost always unpaid when the recipient of the fines is

incapable of even affording shelter.88 Thus begins a

precipitous spiral, where the unpaid fines lead to poor

credit, which has dire consequences on an individual’s

ability to seek out housing options and employment

opportunities. 89 The fines imposed by Grants Pass

thus entrench homeless individuals in a continued cycle of homelessness by establishing barriers to lifting

individuals out of homelessness.

83 See Brief of Petitioner at 12, City of Grants Pass v. Gloria

Johnson and John Logan et al., No. 23-175 (2024).

84 See Resp. Br. at 30.

85 See id.

86 Id.

87 Id.

88 Id.

89 See id. at 30-31; see also Blake, 2020 U.S. Dist. LEXIS 139494,

at *54.

26

This Court has made it clear that defendants cannot be imprisoned for being too poor to pay fines, yet

the Grants Pass ordinances call for just such imprisonment even if based on only the accumulation of fines

that homeless individuals often cannot combat, in

large part due to their homeless condition that itself

is almost always involuntary. The Court addressed

this issue in Tate v. Short, 401 U.S. 395 (1971). In that

case, the defendant Tate was convicted of traffic offenses and fined a total of $425.90 According to the provisions of a Texas state statute and municipal ordinance, when Tate was unable to pay the fines, he was

“committed to the municipal prison farm [and] required [to] remain there a sufficient time to satisfy the

fines at the rate of five dollars for each day.” 91 The

Court explained the unconstitutionality of the Texas

statute and resulting punishment of Tate:

[T]he Equal Protection Clause of the

Fourteenth Amendment requires that

the statutory ceiling placed on imprisonment for any substantive offense be

the same for all defendants irrespective

of their economic status.” Since Texas

has legislated a “fines only” policy for

traffic offenses, that statutory ceiling

cannot, consistently with the Equal

Protection Clause, limit the punishment to payment of the fine if one is

able to pay it, yet convert the fine into

a prison term for an indigent defendant

without the means to pay his fine. Imprisonment in such a case is not

90 Id. at 396.

91 Id. at 396-97.

27

imposed to further any penal objective

of the State. It is imposed to augment

the State's revenues but obviously does

not serve that purpose; the defendant

cannot pay because he is indigent and

his imprisonment, rather than aiding

collection of the revenue, saddles the

State with the cost of feeding and housing him for the period of his imprisonment.92

The Court granted Tate’s petition for habeas corpus

and held that it is a denial of equal protection to limit

punishment to payment of fines for individuals who

are able to pay such fines but to convert such fines to

punishments of imprisonment for those who are unable to pay them.93

The Court addressed a similar situation in

Bearden v. Georgia, 461 U.S. 660 (1983). In that case,

the petitioner Bearden pled guilty to the felonies of

burglary and theft by receiving stolen property.94 Pursuant to the Georgia First Offender’s Act, however,

the trial court did not enter a judgment of guilt but

instead deferred further proceedings and sentenced

Bearden to three years’ probation, fined him $750 in

fees and restitution, and ordered him to pay the

amount owed via a payment plan.95 Bearden successfully made the first few payments but eventually lost

his job and could not pay the remainder. 96 When

92 Id. at 398-99 (citations omitted).

93 See id.

94 Id. at 662.

95 Id.

96 Id.

28

Bearden informed his probation officer that he was going to be late with his next payment, the State filed a

petition in the trial court to revoke Bearden’s probation because he had not paid the balance of his debt.97

After an evidentiary hearing, the trial court revoked

Bearden’s probation and sentenced him to serve the

remaining portion of the probationary period in

prison, effectively imprisoning him for being too poor

to pay his fines.98 The Georgia Court of Appeals upheld the trial court’s decision, and the Georgia Supreme Court denied review.99

The Supreme Court, which has been “long . . . sensitive to the treatment of indigents in our criminal justice system,” reversed the appellate court’s judgment. 100 The Court stated, “The question presented

here is whether a sentencing court can revoke a defendant’s probation for failure to pay the imposed fine

and restitution, absent evidence and findings that the

defendant was somehow responsible for the failure or

that alternative forms of punishment were adequate.” 101 The Court answered “no” because “if the

State determines a fine or restitution to be the appropriate and adequate penalty for the crime, it may not

thereafter imprison a person solely because he lacked

the resources to pay it.”102

97 Id. at 663.

98 See id.

99 See id.at 664.

100 See id.

101 Id. at 665.

102 Id. at 667-68.

29

Accordingly, the due process and equal protection

principles of the Fourteenth Amendment prohibit

“punishing a person for his poverty.” 103 To comply

with this constitutional requirement, state and local

courts must inquire as to a person’s ability to pay prior

to imposing incarceration for nonpayment, and they

should do so sua sponte.104 Further, courts should inquire as to a defendant’s ability to pay at sentencing

when contemplating the assessment of fines and fees,

rather than waiting until the defendant fails to pay.105

In short, a court must make every effort to avoid imprisoning an indigent defendant for failure to pay

fines—the Grants Pass ordinances seemingly ignore

this important guidance from the Court when addressing indigent individuals, a population that

makes up the vast majority of individuals experiencing homelessness across the country.

Further, homeless individuals face additional barriers to lifting themselves out of homelessness. Poor

health status is often associated with homelessness.

Elevated rates of mental health conditions and substance use disorders are often both a consequence and

cause of homelessness.106 Experiencing homelessness

during the pre-natal and post-natal period is associated with increased risk of adverse birth and health

outcomes as well as development delays and high

health care utilization. In instances where the

103 Id. at 671.

104 Id. at 671.

105 See id.

106 Cheyenne Garcia, Kelly Doran, and Margot Kushel, Home-

lessness and Health: Factors, Evidence, Innovations That Work,

And Policy Recommendations, Health Affairs (Feb. 2024),

https://doi.org/10.1377/hlthaff.2023.01049.

30

homeless individuals are children, the impact of

homelessness on their education is overwhelming.

Homelessness is associated with achievement gaps,

school absences, and other challenges.107

B. Punishing Homelessness Merely Shuffles Individuals Among Jurisdictions and Has No Impact on

Reducing Homelessness.

The Grants Pass ordinances punish homeless

individuals without alleviating homelessness. Indeed,

despite working within the City of Grants Pass, John

Logan has no option but to sleep in his truck at a rest

stop north of Grants Pass out of fear of being ticketed

for violating the Grants Pass ordinances.108 Mr. Logan is not the only homeless individual to experience

this risk to health and safety, as well as discomfort, in

Grants Pass. 109 If this Court were to permit the

Grants Pass ordinances to stand, cities will begin or

continue to enforce and pass similar ordinances that

prohibit sleeping, and the potential for a cascading

107 The Evidence Behind Approaches that Drive an End to

Homelessness, United States Interagency Council on Homelessness (2019), https://www.usich.gov/sites/default/files/document/Evidence-Behind-Approaches-That-End-HomelessnessBrief-2019.pdf. See also MacArthur Foundation, Housing: Why

Educators, Health Professionals and Those Focused on Economic Mobility Should Care About It (Nov. 16, 2017),

https://www.macfound.org/press/article/lessons-learned-housing-researchould Care About It - MacArthur Foundation

(macfound.org)

108 See also Blake, 2020 U.S. Dist. LEXIS 139494, at *11-12.

109 See id.; see Resp. Br. at 33 (noting “the chaos the City seeks

to unleash by making it so ‘uncomfortable’ for its homeless residents that they will be forced to move to other jurisdictions”).

31

nationwide bans may have disastrous consequences.110 The City and its amici have yet to explain

to this Court how pressuring homeless individuals to

leave the City alleviates homelessness—these

measures may reduce the number of homeless individuals identified in Grants Pass, but this statistic

should not be conflated with an actual reduction in the

number of people who are experiencing homelessness.

C. Punishing Homelessness Not Only Hurts Individuals, But Also Harms the Community at Large.

Taxpayers, such as Grants Pass residents, pay an

exorbitant price for these measures.111 They are not

only costly, but also fail to effectively reduce homelessness.112 Experts on homelessness from federal, state,

and local public and non-profit agencies, who participated in a 2012 summit organized by the USICH113

reached similar conclusions: that such ordinances “are

costly and consume substantial state and local resources,” and “[i]n today’s economic climate, it is important for state, county, and local entities to invest

in programs that work rather than spend money on

activities that are unlikely to achieve the desired result and which may, in some cases, open the

110 See Pet. Br. at 27 (“[I]f every jurisdiction in the Nation

adopted ordinances like those at issue here, there would be nowhere for people without homes to lawfully reside”).

111 See, e.g., Housing Not Handcuffs (“chronic homelessness” can

cost the public “between $30,000 and $5,000 per person every

year” at least in part due to criminalization).

112 See id.

113 U.S. Interagency Council on Homelessness, Searching Out

Solutions: Constructive Alternatives to the Criminalization of

Homelessness

2

(2012),

https://www.usich.gov/sites/de-

fault/files/document/Searching_Out_ Solutions_2012.pdf.

32

jurisdiction to liability.” 114 The experts instead recommended a care-based approach that involved collaboration among health, behavioral health, and social service providers in lieu of criminalization. 115

That is where we see both results and cost-savings, for

example in Denver, providing housing and services to

people who are homeless and disabled, has been

demonstrated to reduce the cost of other public services.116

D. This Court Has Required Punishment to Have

a Constructive Purpose—the Grants Pass Ordinances

Do Not.

This Court has required punishment to be “justified under one or more of three principal rationales:

rehabilitation, deterrence, and retribution.”117 The

criminalization of homelessness fails to meet any of

the three constructive purposes of punishment defined in Kennedy.

The Grants Pass ordinances do not deter people experiencing homelessness from being homeless, especially considering deterrence is not a viable solution

given that homelessness, as discussed above, is almost

always an involuntary condition.118 The punishment

114 Id. at 1.

115 See id. at 2-4.

116 Sarah Gillespie, Costs and Offsets of Providing Supportive

Housing to Break the Homelessness-Jail Cycle, Urban Institute

(2021),

https://www.urban.org/sites/default/files/publication/104499/costs-and-offsets-of-providing-supportive-housingto-break-the-homelessness-jail-cycle_0.pdf.

117 Kennedy v. Louisiana , 554 U.S. 407, 420 (2008) (citing Har-

melin v. Michigan, 501 U.S. 957, 999 (1991)).

118 See supra §I (explaining that homelessness is involuntary).

33

of homeless individuals does not cause people to

choose not to be homeless—indeed, these individuals

are homeless because they have no viable alternative

housing options, and to assume that homeless individuals have a choice in whether they are homeless or not

demonstrates a lack of understanding of the causes of

homelessness.119

The Grants Pass ordinances also do not rehabilitate homeless individuals. The definition of “rehabilitation” has evolved over the years, but it has been

historically seen through the lens of treatment, training, or moral reform.120 Rehabilitation in the form of

treatment involved the idea that an individual would

be punished by receiving guidance away from criminal

behavior with the goal of re-entering society and not

returning to the criminal behavior.121 Rehabilitation

through training referred to equipping individuals

with the skills to become a productive member of society at the end of the term of punishment—for example, by providing vocational training and education or

drug treatment as punishment.122 Moral reform requires the individual to see the error of his ways and

feel remorse over his behavior. 123 Even under this

wide umbrella of potential definitions, the Grants

Pass ordinances fail to serve any rehabilitative purposes. These three interpretations of rehabilitation

have at least one factor in common—the individual,

119 See id.

120 Chad Flanders, The Supreme Court and the Rehabilitative

Ideal 5-17 (2014).

121 See id. at 7-11.

122 See id. at 12-14.

123 See id. at 14-17.

34

having been punished for a behavior, emerges back

into society and does not repeat the behavior.124 Criminalizing homelessness has no such impact. Indeed,

after having the Grants Pass ordinances enforced

against them, homeless individuals will remain homeless, and they now have additional barriers to obtaining alternative housing in light of the extensive fines

(and potential criminal records) levied against them.

The Grants Pass ordinances further serve no retributive purposes. “The goal of retribution … reflects

society’s and the victim’s interests in seeing that the

offender is repaid for the hurt he caused.”125 Retribution, therefore, hinges on a crime where hurt was

caused unto a victim. 126 Homelessness is no such

crime. There is no victim when homeless individuals

sleep in locations prohibited under the Grants Pass

ordinances, and the City has offered no identification

of any potential “victim.”127

The failure of the Grants Pass ordinances to meet

any of the three constructive purposes of punishment

is telling—the City’s attempt to punish homelessness

is incompatible with this Court’s precedent.128

124 See id. at 5-17.

125 Kennedy, 554 U.S. at 442 (internal citations omitted).

126 See id.

127 See generally Brief of Petitioner.

128 See Kennedy, 554 U.S. at 420.

35

CONCLUSION

The Grants Pass ordinances punish individuals for

an involuntary condition, resulting in cruel and unusual punishment for universal and unavoidable actions. Homelessness is pervasive, and it is not voluntary. Criminalization does not help with homelessness—if anything, it makes the problem worse. Accordingly, the amici curiae respectfully request that

the Court affirm the lower court’s decision and hold in

favor of Respondents.

Respectfully submitted,

RICARDO J. BONILLA

Counsel Of Record

RBONILLA@FR.COM

FISH & RICHARDSON P.C.

1717 MAIN STREET

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TAYLOR REEVES

FISH & RICHARDSON P.C.

222 DELAWARE AVENUE

17TH FLOOR

WILMINGTON, DE 19801

(302) 652-5070

REEVES@FR.COM

DANIEL H. WADE

WADE@FR.COM

JOSIE LITTLE

LITTLE@FR.COM

FISH & RICHARDSON P.C.

ONE MARINA PARK DRIVE

BOSTON, MA 02210

(617) 542-5070

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.

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