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.
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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
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