Amicus Curiae Brief — City of Grants Pass, Oregon, Petitioner v. Gloria Johnson, et al., on Behalf of Themselves and All Others Similarly Situated

No. 23-175

IN THE

Supreme Court of the United States

_______________________

CITY OF GRANTS PASS,

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 for the Ninth Circuit

_______________________

BRIEF OF CRIMINAL LAW AND

PUNISHMENT SCHOLARS AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

_______________________

ANDREA LEWIS HARTUNG

RODERICK & SOLANGE

MACARTHUR JUSTICE

CENTER

160 East Grand Avenue

6th Fl.

Chicago, IL 60611

GREGORY CUI

Counsel of Record

GEORGE MILLS*

RODERICK & SOLANGE

MACARTHUR JUSTICE CENTER

501 H Street NE, Suite 275

Washington, DC 20002

(202) 869-3434

gregory.cui@macarthurjustice.org

* Admitted only in California and

practicing under the supervision of

attorneys who are admitted in the

District of Columbia.

Counsel for Amici Curiae

TABLE OF CONTENTS

Table Of Authorities ............................................................ ii

Interest Of Amici Curiae ..................................................... 1

Introduction ......................................................................... 3

Argument ............................................................................. 4

I. Under The Eighth Amendment, Criminal Punishment

Cannot Be Imposed On Innocent Conduct. .................. 4

II. The Grants Pass Ordinances Punish Homelessness,

Which This Court Has Already Recognized Is Innocent

And Not Deserving Of Any Criminal Punishment. ..... 9

III. Rather Than Serving Any Legitimate Penological

Purpose, The Ordinances Were Used To Banish The

Homeless. ..................................................................... 15

Conclusion .......................................................................... 19

(i)

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Alegata v. Commonwealth,

231 N.E. 201 (Mass. 1967) ....................................... 11

Atkins v. Virginia,

536 U.S. 304 (2002)..................................................... 6

Austin v. United States,

509 U.S. 602 (1993)............................................... 6, 18

Baze v. Rees,

553 U.S. 35 (2008)..................................................... 17

City of Chicago v. Morales,

527 U.S. 41 (1999)....................................................... 5

Edwards v. California,

314 U.S. 160 (1941)..................................................... 9

Enmund v. Florida,

458 U.S. 782 (1982)................................................... 11

Furman v. Georgia,

408 U.S. 238 (1972)................................................... 17

Graham v. Florida,

560 U.S. 48 (2010)....................................................... 8

Harmelin v. Michigan,

501 U.S. 957 (1991)..................................................... 8

Helling v. McKinney,

509 U.S. 25 (1993)..................................................... 13

Lambert v. California,

355 U.S. 225 (1957)..................................................... 5

iii

Liparota v. United States,

471 U.S. 419 (1985)................................................. 5, 7

Manning v. Caldwell for City of Roanoke,

930 F.3d 264 (4th Cir. 2019) ...................................... 6

Memorial Hospital v. Maricopa County,

415 U.S. 250 (1974)............................................. 17, 18

Miller v. Alabama,

567 U.S. 460 (2012)..................................................... 7

Morissette v. United States,

342 U.S. 246 (1952)................................................. 4, 7

Papachristou v. City of Jacksonville,

405 U.S. 156 (1972)............................................... 9, 10

Parker v. Mun. Judge of City of Las Vegas,

427 P.2d 642 (Nev. 1967).......................................... 11

Pervear v. Commonwealth,

72 U.S. (5 Wall.) 475 (1866) ..................................... 11

Posters ‘N’ Things, Ltd. v. United States,

511 U.S. 513 (1994)..................................................... 7

Powell v. Texas,

392 U.S. 514 (1968)................................................... 11

Robinson v. California,

370 U.S. 660 (1962)....................................... 3, 8, 9, 11

Roper v. Simmons,

543 U.S. 551 (2005)..................................................... 8

Rummel v. Estelle,

445 U.S. 263 (1980)..................................................... 8

iv

Saenz v. Roe,

526 U.S. 489 (1999)................................................... 18

Shapiro v. Thomas,

394 U.S. 618 (1969)................................................... 17

Solem v. Helm,

463 U.S. 277 (1983)............................................. 6, 7, 8

Staples v. United States,

511 U.S. 600 (1994)..................................................... 5

State v. McPhail,

359 P.3d 325 (Ore. Ct. App. 2015) ........................... 14

Taylor v. Riojas,

592 U.S. 7 (2020)....................................................... 17

Timbs v. Indiana,

586 U.S. ___, 139 S. Ct. 682 (2019) .......................... 11

Tison v. Arizona,

481 U.S. 137 (1987)................................................... 10

United States v. Bajakajian,

524 U.S. 321 (1998)................................................. 6, 8

United States v. Bishop,

412 U.S. 346 (1973)..................................................... 5

Wilson v. Seiter,

501 U.S. 294 (1991)................................................... 13

Winters v. New York,

333 U.S. 507 (1948)..................................................... 5

Statutes

Ore. Rev. Stat. § 161.200(1) ........................................... 14

v

Other Authorities

Black’s Law Dictionary (11th ed. 2019)........................... 7

Camp SCOTUS: Georgetown Law Students Pull

All-Nighters Outside the Supreme Court,

Georgetown Law School (Nov. 18, 2022) ................. 13

Elise Hu, 100 Hours On The Supreme Court’s

Sidewalk: Camping Out For A Seat To

History, NPR (Mar. 24, 2013)................................... 12

1 Joel Prentiss Bishop, Commentaries on the

Criminal Law (1882) .................................................. 5

Oliver Wendell Holmes, Jr., The Common Law

(1881) ........................................................................... 4

IN THE

Supreme Court of the United States

_______________________

CITY OF GRANTS PASS,

Petitioner,

v.

GLORIA JOHNSON AND JOHN LOGAN, ON BEHALF OF

THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,

Respondents.

_______________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

_______________________

BRIEF OF CRIMINAL LAW AND

PUNISHMENT SCHOLARS AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

_______________________

INTEREST OF AMICI CURIAE1

Amici curiae are legal scholars whose work centers

on substantive criminal law and criminal

punishment. Their work bears directly on the

important questions raised by this case about the

nature and limits of criminal punishment under the

Eighth Amendment.

1 No counsel for a party authored this brief in whole or in part,

and no counsel for a party (nor a party itself) made a monetary

contribution intended to fund the preparation or submission of

this brief. No person other than amici or their counsel made a

monetary contribution to this brief’s preparation or submission.

(1)

2

William W. Berry III is the Associate Dean for

Research and Montague Professor of Law at the

University of Mississippi School of Law. He is the coeditor of The Eighth Amendment and its Future in a

New Age of Punishment (Cambridge University Press,

2020), and has written over 50 law review articles,

primarily in the areas of capital punishment,

sentencing, and substantive criminal law.

Sharon Dolovich is a Professor of Law at the

University of California, Los Angeles School of Law,

where she directs the UCLA Prison Law & Policy

Program and the UCLA Law Behind Bars Data

Project. She is a leading scholar of prisons and

punishment. Her published works include Cruelty,

Prison Conditions and the Eighth Amendment,

84 N.Y.U. L. Rev. 881 (2009), and Legitimate

Punishment in Liberal Democracy, 7 Buff. Crim. L.

Rev. 307 (2004).

Christopher Lewis is an Assistant Professor of

Law at Harvard Law School. His research focuses on

how the law (especially the criminal law) can be more

fairly and efficiently administered in response to

social and economic inequality. His published work

includes Risk-Based Sentencing and the Principles of

Punishment, 112 J. Crim. L. & Criminology 213

(2022).

Aaron Littman is an Assistant Professor of Law

and the faculty director of the Prisoners’ Rights Clinic

at the University of California, Los Angeles School of

Law. His scholarship concerns the law governing

incarceration, including constitutional and subconstitutional limits on punishment. His clinical work

addresses a wide range of criminal justice issues,

including violations of the Eighth Amendment.

3

Amici file this brief solely as individuals and not

on behalf of any institution with which they are

affiliated. Affiliations are provided solely for the

purpose of identification.

INTRODUCTION

To satisfy the Eighth Amendment’s requirement of

proportionality,

criminal

punishment

must

appropriately reflect the culpability of the relevant

offense. In many cases, the proportionality inquiry

can be complex. But in some cases, like this one,

disproportionality is plain to see because criminal

punishment has been imposed on something that is

not culpable at all. No punishment is proportional to

something that is innocent. As this Court said in

Robinson v. California, 370 U.S. 660 (1962), “[e]ven

one day in prison would be a cruel and unusual

punishment for the ‘crime’ of having a common cold.”

Id. at 667.

Like the “crime” of having a common cold,

homelessness is not culpable, and thus not deserving

of criminal punishment of any kind. This Court has

already recognized that poverty and homelessness are

innocent, and the City of Grants Pass does not

contend otherwise. That resolves the case: The

plaintiffs in this case were punished even though they

did not do anything wrong. Under Robinson, that is

the clearest example of disproportionality.

Troublingly, the record indicates that the plaintiffs

were punished not because they acted culpably, but

because city officials wanted to drive homeless people

out of town. Rather than tailoring criminal

punishment to reflect the culpability of a crime,

officials in Grants Pass used the harshness of punitive

4

sanctions instrumentally to “make it uncomfortable

enough for [homeless people] in our city so they will

want to move on down the road.” JA 114. This is a

fundamental misuse of the power of criminal

punishment. Punitive sanctions cannot be used as a

tool to harm or drive away an unpopular group.

This Court has long recognized that criminal

punishment cannot be imposed on something innocent

like homelessness. Such punishment is especially

suspect when its apparent purpose is to cause pain for

the sake of pain, in order to banish unpopular groups

from town. This Court need only recognize these basic

limits on the power of criminal punishment to affirm

the judgment below.

ARGUMENT

I.

Under The Eighth Amendment, Criminal

Punishment Cannot Be Imposed On

Innocent Conduct.

Perhaps the most fundamental limit on criminal

punishment is that it cannot be imposed on innocent

conduct. Criminal punishment, by definition, is

reserved for criminal conduct—conduct that, by its

nature, is culpable and thus deserving of punishment.

See Morissette v. United States, 342 U.S. 246, 251

(1952) (“Crime, as a compound concept, generally

constituted only from concurrence of an evil-meaning

mind with an evil-doing hand.”). Thus, it has long

been recognized that no criminal punishment is

appropriate for conduct that is wholly innocent. See

Oliver Wendell Holmes, Jr., The Common Law 50

(1881) (“[A] law which punished conduct which would

not be blameworthy in the average member of the

community would be too severe for that community to

5

bear.”); 1 Joel Prentiss Bishop, Commentaries on the

Criminal Law § 431 (1882) (“[A criminal act] must be

sufficient in amount of evil to demand judicial

notice.”).

This Court has applied this basic limit on the

power of criminal punishment in a variety of contexts.

See, e.g., Winters v. New York, 333 U.S. 507, 520

(1948) (“Where a statute is so vague as to make

criminal an innocent act, a conviction under it cannot

be sustained.”); City of Chicago v. Morales, 527 U.S.

41, 57 (1999) (invalidating ordinance that failed “to

distinguish between innocent conduct and conduct

threatening harm”); Lambert v. California, 355 U.S.

225, 229 (1957) (reversing conviction for failure to

register where “her default was entirely innocent”);

Staples v. United States, 511 U.S. 600, 610 (1994)

(emphasizing “the particular care we have taken to

avoid construing a statute” in a way that would

“criminalize a broad range of apparently innocent

conduct”); United States v. Bishop, 412 U.S. 346, 360

(1973) (“It is not the purpose of the law to

penalize . . . innocent errors.”). Across different

doctrines, the bottom line has been the same:

Criminal punishment cannot be imposed on innocent

conduct.2

2 This Court has sometimes invoked the rule against punishing

innocent conduct under the void-for-vagueness doctrine and the

presumption of mens rea. Such doctrines can be a way to avoid

addressing directly the question of whether criminal punishment

can be imposed on innocent conduct. See Morales, 527 U.S. at 57

(assuming “the city cannot conceivably have meant to

criminalize” innocent conduct); Liparota v. United States, 471

U.S. 419, 426 (1985) (interpreting criminal statute narrowly to

avoid “criminaliz[ing] a broad range of apparently innocent

6

That limit is reflected in the Eighth Amendment,

which sets the Constitution’s most direct restrictions

on “the government’s power to punish.” Austin v.

United States, 509 U.S. 602, 609 (1993). The Eighth

Amendment mandates that any criminal punishment

must be proportional to the particular crime at issue.

See Solem v. Helm, 463 U.S. 277, 284 (1983)

(prohibiting “sentences that are disproportionate to

the crime committed”); United States v. Bajakajian,

524 U.S. 321, 334 (1998) (requiring “some relationship

to the gravity of the offense that [a punitive fine] is

designed to punish”). That requirement can only be

satisfied when criminal punishment is applied to

criminal conduct—offenses, like theft, fraud, and

murder, that are by their nature culpable, and thus

warrant criminal punishment of some kind. See

Atkins v. Virginia, 536 U.S. 304, 319 (2002) (“[T]he

severity of the appropriate punishment necessarily

depends on the culpability of the offender.”); see also

Bajakajian, 524 U.S. at 338 (emphasizing the

offender’s lack of culpability: “he is not a money

launderer, a drug trafficker, or a tax evader”). As

conduct”). Such avoidance is not possible here, however, because

the ordinances are not vague about their scope or susceptible to

a narrowing construction; Grants Pass has consistently

maintained that the ordinances penalize something wholly

innocent. See Pet. App. 57a (“[W]e hold simply that it is

unconstitutional to punish simply sleeping somewhere in public

if one has nowhere else to do so.” (cleaned up)). The question,

therefore, is whether criminalizing something innocent like

homelessness exceeds “the government’s power to punish” under

the Eighth Amendment. Austin v. United States, 509 U.S. 602,

609 (1993); see Manning v. Caldwell for City of Roanoke, 930 F.3d

264, 278 (4th Cir. 2019) (discussing “independent Eighth

Amendment concerns” separate from vagueness).

7

Grants Pass acknowledges, under the Eighth

Amendment, “criminal penalties may be inflicted only

if” there is “some actus reus”—i.e., some “wrongful

deed.” Brief for Petitioner 32; Black’s Law Dictionary

(11th ed. 2019) (emphasis added).3

This Court’s proportionality cases typically

concern conduct that is culpable to some degree. See,

e.g., Solem, 463 U.S. at 296 (considering a minor

financial crime by a repeat offender); Miller v.

Alabama, 567 U.S. 460, 465-68 (2012) (robbery and

murder by juvenile offenders). In such cases, the

proportionality inquiry can be complex because it

requires weighing the relative culpability of the

offense and the offender against the harshness of the

3 Typically, both actus reus and mens rea are required to ensure

the requisite minimum of culpability. See Morissette, 342 U.S.

at 251. This Court has sometimes relaxed the requirement of

mens rea for so-called “public welfare offenses,” i.e., offenses

involving “potentially dangerous conduct” that has historically

been closely regulated. Posters ‘N’ Things, Ltd. v. United States,

511 U.S. 513, 522 (1994); see Liparota, 471 U.S. at 433

(discussing “conduct that a reasonable person should know is

subject to stringent public regulation and may seriously threaten

the community’s health or safety”). In these limited cases, the

type of conduct, alone, may be sufficient to ensure a minimum

level of culpability. See, e.g., Liparota, 471 U.S. at 433 (“[O]ne

would hardly be surprised to learn that possession of hand

grenades is not an innocent act.”). That is not the case here, as

homelessness is not a dangerous or closely regulated behavior.

And regardless of whether mens rea, specifically, is required, the

ordinances apply criminal punishment in the absence of

culpability of any kind—neither an evil-meaning mind nor an

evil-doing hand. See Dist. Ct. ECF 63-5 at 15 (officer noting

violations of the ordinance involved “No Culpable Mental State”);

JA 93 (“Woke Jerry Lee up from a dead sleep. He was again

sleeping in the van. He was cited for camping in the city limits

and told to vacate the van.”).

8

punishment, with deference to legislative “judgments

about the appropriate punishment for an offense.”

Bajakajian, 524 U.S. at 336; Graham v. Florida, 560

U.S. 48, 69 (2010) (discussing the limited culpability

of the offender based on his age and “the nature of the

crime”); Harmelin v. Michigan, 501 U.S. 957, 1004

(1991) (Kennedy, J., concurring) (noting that “[t]he

severity of petitioner’s crime brings his sentence

within the constitutional boundaries”). Even so, this

Court has recognized that punishments violate the

Eighth Amendment when they fail to reflect properly

the level of culpability involved. See, e.g., Roper v.

Simmons, 543 U.S. 551, 571 (2005) (“Retribution is

not proportional if the law’s most severe penalty is

imposed on one whose culpability or blameworthiness

is diminished.”); Solem, 463 U.S. at 296 (emphasizing

that the crime was “among the less serious offenses”);

see also Rummel v. Estelle, 445 U.S. 263, 274 n.11

(1980) (noting that proportionality would likely be

violated if harsh criminal punishment were imposed

on conduct like overtime parking).

This case is unusual—and straightforward—

because it concerns conduct that is not culpable at all.

In such cases, the proportionality question is simple.

No punishment is proportional for someone who has

done nothing wrong. In Robinson v. California, 370

U.S. 660 (1962), this Court held that the State could

not punish a condition, like drug addiction, that “may

be contracted innocently or involuntarily.” Id. at 667.

Because merely having an addiction is not culpable,

no punishment—not even “one day in prison”—could

be proportional. Id. (comparing addiction to “the

‘crime’ of having a common cold”). Robinson

recognized that punishing something innocent is the

clearest example of disproportionality.

9

II.

The Grants Pass Ordinances Punish

Homelessness, Which This Court Has

Already Recognized Is Innocent And Not

Deserving Of Any Criminal Punishment.

That principle from Robinson applies here because

the Grants Pass ordinances punish something this

Court has already recognized is innocent:

homelessness. That condition “may be contracted

innocently or involuntarily,” and does not reflect

culpability. Robinson, 370 U.S. at 667. Thus, it is

something for which no criminal punishment is

proportional.

This Court has already recognized that poverty

and the homelessness that results from it are not

culpable. In Edwards v. California, 314 U.S. 160

(1941), for example, this Court struck down a

California statute making it a crime to transport an

“indigent” person into the State. Id. at 176-77. In

doing so, this Court explained that it cannot be

“seriously contended that because a person is without

employment and without funds he constitutes a

‘moral pestilence,’” as prior attempts to criminalize

indigence had assumed. Id. at 177. “Poverty and

immorality,” this Court made clear, “are not

synonymous.” Id.

Similarly, in Papachristou v. City of Jacksonville,

405 U.S. 156 (1972), this Court invalidated an

ordinance prohibiting conduct attendant to poverty

like “nightwalking,” “neglecting all lawful business,”

being “able to work but habitually living upon the

earnings of” others, and being “habitual loafers.” Id.

at 156 n.1, 158. The Court emphasized that the

ordinance made “criminal activities which by modern

standards are normally innocent.” Id. at 163. And the

10

Court reiterated Edwards’s recognition that being

indigent is no crime; people can fall on hard times for

reasons entirely beyond their control. Id. at 163 & n.5.

Because homelessness is not culpable, punishing it

serves none of the legitimate purposes of criminal

punishment. The ordinances do not, for example,

advance a retributive purpose because homelessness

does not reflect any culpability warranting

retribution. See Tison v. Arizona, 481 U.S. 137, 149

(1987) (“The heart of the retribution rationale is that

a criminal sentence must be directly related to the

personal culpability of the criminal offender.”). The

ordinances also have no deterrent effect because

homeless people living in Grants Pass have no choice

but to “sleep somewhere in public” using blankets or

bedding “if one has nowhere else to do so.” Pet.

App. 57a; see JA 109 (describing the discovery of “a

homeless individual who is repeatedly picked up for

trespassing after hours, in severe distress outside in

the frigid air,” who “disclosed fear that he would be

arrested and trespassed again for being outside”). And

the ordinances do not prevent violations through

incapacitation or rehabilitation. To the contrary, the

ordinances cause violations by further impoverishing

the homeless, with fines starting at $295 and rising as

high as $1,250 per violation. See JA 134 (describing a

$295 fine for “lying down on a friend’s mat” given to a

person who is “still homeless” and “unable to pay”);

JA 182 (owing “more than $5000 in fines”).

For the “offense” of not having enough money even

to afford a $50 motel room on a cold night, homeless

people are fined hundreds, if not thousands, of dollars.

Such punishment is “purposeless and needless,” and

thus violates the Eighth Amendment’s requirement of

11

proportionality. Enmund v. Florida, 458 U.S. 782, 798

(1982); cf. Timbs v. Indiana, 586 U.S. ___, 139 S. Ct.

682, 687-88 (2019) (noting that the Magna Carta

prohibited economic sanctions disproportionate to

“the wrong” and that would “deprive [a person] of his

livelihood”). “It simply is not a crime to be

unemployed, without funds, and in a public space. To

punish the unfortunate for this circumstance debases

society.” Parker v. Mun. Judge of City of Las Vegas,

427 P.2d 642, 644 (Nev. 1967); see Alegata v.

Commonwealth, 231 N.E. 201, 207 (Mass. 1967)

(“Idleness and poverty should not be treated as a

criminal offence.”).

Importantly, Grants Pass does not contest that

homelessness is innocent and not deserving of

criminal punishment. See Brief for Petitioner 7

(noting department policy acknowledging that

“[h]omelessness is not a crime”). That concession is

sufficient to resolve this case. Because homelessness

is not culpable, no punishment—not even “one day in

prison”—could be proportional. Robinson, 370 U.S.

at 667.4

4 Given Grants Pass’s concession, this case does not implicate

closer questions about defining innocent conduct. In Powell v.

Texas, 392 U.S. 514 (1968), for example, this Court divided over

whether public intoxication was the kind of wrongful conduct for

which criminal punishment may be appropriate. A plurality

concluded that it was, because it “may create substantial health

and safety hazards” and “offends the moral and esthetic

sensibilities of a large segment of the community.” Id. at 532

(opinion of Marshall, J.); see also Pervear v. Commonwealth,

72 U.S. (5 Wall.) 475, 480 (1866) (citing the “manifold evils of

intemperance”). The dissent disagreed, arguing that the statute

punished chronic alcoholics for “being in a condition which [they]

had no capacity to change or avoid.” Powell, 392 U.S. at 568

12

Rather than dispute that homelessness is

innocent, Grants Pass claims that the ordinances do

not punish homelessness at all, characterizing them

instead as “generally applicable prohibitions against

the act of camping on public property.” Brief for

Petitioner 4. But the ordinances explicitly single out

the homeless by defining a “campsite” as “any place

where bedding, sleeping bag, or other material used

for bedding purposes” is placed “for the purpose of

maintaining a temporary place to live.” Pet. App. 172a

(emphasis added). Thus, what separates prohibited

conduct from permissible conduct is a person’s intent

to “live” in public spaces. Infants napping in strollers,

Sunday afternoon picnickers, and nighttime

stargazers may all engage in the same conduct of

bringing blankets to public spaces, but they are

exempt from punishment because they have a

separate “place to live” to which they presumably

intend to return. See Dist. Ct. ECF 63-7 at 2 (officer

testifying that “laying on a blanket enjoying the park”

would not violate the ordinances); Dist. Ct. ECF 63-5

at 5-6 (officer testifying that bringing a sleeping bag

to look at the stars would not be punished); id. at 6

(officer testifying that someone would, however,

violate the ordinance if he did not “have another home

to go to”).5 As a result, the Deputy Chief of Police

(Fortas, J., dissenting). This Court need not decide whether

compulsive conduct such as drug or alcohol use may ever be

treated as innocent in order to resolve this case. See Brief for

Petitioner 5 (casting a parade of horribles about compulsive

conduct that are not implicated here).

5 Indeed, using blankets to stay warm in public spaces is

celebrated, not criminalized, when it occurs outside this Court.

See Elise Hu, 100 Hours On The Supreme Court’s Sidewalk:

Camping Out For A Seat To History, NPR (Mar. 24, 2013),

13

Operations acknowledged that he was not aware of

“any non-homeless person ever getting a ticket for

illegal camping in Grants Pass.” Dist. Ct. ECF 63-4

at 16. By their plain text and their pattern of

enforcement, the ordinances are not generally

applicable; they criminalize being homeless.

Next, Grants Pass attempts to distinguish

Robinson by arguing that the ordinances punish the

conduct of camping, rather than the status of

homelessness. Brief for Petitioner 37. But phrasing

the ordinances to prohibit “conduct” like using a

blanket to stay warm does not change the basic flaw

of the ordinances: They impose criminal punishment

on something that is not criminal. There is nothing

culpable about falling asleep, or using a blanket to

stay warm, in a public place when you “have nowhere

else to go.” Pet. App. 172a, 186a; JA 108-09 (“They are

not choosing to live on the street or in the woods. It is

that there simply are not nearly enough affordable

places for people to live or find shelter.”); Dist. Ct.

ECF 63-1 at 12 (city official describing “below

freezing” temperatures); see also Helling v. McKinney,

509 U.S. 25, 32 (1993) (noting shelter is a basic need);

Wilson v. Seiter, 501 U.S. 294, 304 (1991) (noting

warmth is a basic need). Thus, whether the “crime” is

fairly described as conduct or not, the ordinances’

punishment is fundamentally disproportionate.

https://www.npr.org/sections/thetwo-way/2013/03/24/175195917

/100-hours-on-the-supreme-court-s-sidewalk-camping-out-for-aseat-to-history; Camp SCOTUS: Georgetown Law Students Pull

All-Nighters Outside the Supreme Court, Georgetown Law School

(Nov. 18, 2022), https://www.law.georgetown.edu/news/campscotus-georgetown-law-students-pull-all-nighters-outside-thesupreme-court/.

14

Grants Pass also suggests that Oregon’s necessity

defense avoids any concern of overcriminalization. See

Brief for Petitioner 41. But if the necessity defense

immunizes anyone who violates the city’s ordinances

because they are homeless, then Grants Pass should

not be pressing this appeal at all. The Ninth Circuit

only enjoined enforcement of the ordinances against

people who “sleep[] somewhere in public” using

blankets or bedding “if one has nowhere else to do so.”

Pet. App. 57a. Grants Pass should have no interest in

challenging that decision if it genuinely believes that

homeless people are covered by the necessity defense.

Yet those are exactly the people against whom Grants

Pass has enforced the ordinances for years, and

against whom Grants Pass seeks to enforce the

ordinances going forward.6

Finally, Grants Pass argues that the ordinances

are necessary to address problems it associates with

homelessness: “violent crime, drug overdoses, disease,

fires, and hazardous waste.” Brief for Petitioner 47.

But those issues can already be addressed directly:

Oregon’s necessity defense is also no answer to the basic

problem that the ordinances criminalize innocent conduct. The

State’s necessity defense provides a justification for conduct that

is criminal based on a “choice of evils.” State v. McPhail, 359 P.3d

325, 329 (Ore. Ct. App. 2015). The defense exempts otherwise

culpable conduct when the conduct is “necessary as an

emergency measure to avoid an imminent public or private

injury,” if the injury is “of such gravity that . . . the desirability

and urgency of avoiding the injury clearly outweigh the

desirability of avoiding the injury sought to be prevented by the

statute.” Ore. Rev. Stat. § 161.200(1). Homelessness is not

culpable; it needs no justification because it is not something for

which criminal punishment is appropriate in the first place, as

this Court recognized in Edwards and Papachristou.

6

15

Under the district court’s injunction, the city retains

the authority to prohibit and punish every act that

could conceivably be an appropriate subject of

punishment—“littering,

public

urination

or

defecation, obstruction of roadways, possession or

distribution of illicit substances, harassment, or

violence.” Pet. App. 200a. And that injunction may be

further modified if Grants Pass identifies other

culpable conduct it needs to address. See Pet. App. 55a

(remanding for consideration of narrowing the

injunction).7 What Grants Pass cannot do is punish

people for the blameless “offense” of being homeless.

See Brief for Respondents 13 (“It is difficult to imagine

a more blameless offense than resting outside with a

blanket to survive the cold when you have nowhere

else to go.”); id. at 28-29.

III.

Rather Than Serving Any Legitimate

Penological Purpose, The Ordinances

Were Used To Banish The Homeless.

The use of criminal punishment in this case is

especially troubling because it appears that the

ordinances were never meant to impose an

appropriate punishment proportional to culpable

conduct. To the contrary, disproportionality was the

point. The record indicates that the ordinances’

excessive harshness was used instrumentally to drive

homeless people out of Grants Pass.

Officials in Grants Pass previously tried to get

homeless people to leave town by buying them bus

tickets, only for them to return “with a request from

7 The Ninth Circuit also preserved Grants Pass’s ability to create

“a regime of purely civil infractions.” Pet. App. 57a-58a.

16

the other location to not send them there.” Pet.

App. 17a; see JA 114. At a community roundtable in

2013, officials discussed taking that approach one step

further and simply driving homeless people out of

town “and leaving them there.” JA 113. That idea was

rejected, however, because of concerns with “liability”

and “the legality of detaining someone without

charging them with a crime.” Id.

Accordingly, officials changed tack. One city

councilor announced that “the point is to make it

uncomfortable enough for [homeless people] in our

city so they will want to move on down the road.”

JA 114; see Pet. App. 17a. Another city councilor

stated that “until the pain of staying the same

outweighs the pain of changing, people will not

change.” JA 119. He suggested that “some people need

an external source to motivate that needed change.”

Id. He wondered aloud if “[m]aybe they aren’t hungry

enough or cold enough.” JA 122.

Following these “mean-spirited” discussions,

JA 106, city officials stepped up enforcement of the

ordinances against “Transients,” i.e., the homeless.

See JA 71, 77; see also JA 107 (describing “increase in

recent years of fines and convictions against homeless

individuals”). In doing so, officials delivered a clear

message: “[T]here is nowhere in Grants Pass” that

homeless people “can legally sit or rest.” JA 180-81;

see Dist. Ct. ECF 63-4 at 18 (deputy police chief

testifying that a person could not use a sleeping bag

or other bedding anywhere on public property without

violating the ordinances); id. at 24 (same as to

sleeping in a vehicle). The police even told one

homeless person explicitly to “leave town.” JA 181.

17

Using punitive sanctions to drive unwanted

individuals out of town is an egregious misuse of

criminal punishment. This Court has repeatedly held

that criminal punishment cannot be used as a tool to

cause pain “for the sake of pain.” Baze v. Rees,

553 U.S. 35, 48 (2008); see Taylor v. Riojas, 592 U.S. 7,

8-9 (2020) (finding “obvious cruelty” in the deliberate

use of degrading and dangerous prison conditions).

Nor can punishment be used to target or harm an

unpopular group. See Furman v. Georgia, 408 U.S.

238, 245 (1972) (Douglas, J., concurring) (“[I]t is ‘cruel

and unusual’ to apply the death penalty—or any other

penalty—selectively to minorities whose numbers are

few, who are outcasts of society, and who are

unpopular, but whom society is willing to see suffer

though it would not countenance general application

of the same penalty across the board.”). As the

Solicitor General notes, such punishment “is akin to a

form of banishment, a measure that is now generally

recognized as contrary to our Nation’s legal tradition.”

Brief for the United States as Amicus Curiae 21.

This is not the first time a government has used its

power to “try to fence out” the poor or the homeless.

Shapiro v. Thomas, 394 U.S. 618, 631 (1969),

overruled on other grounds by Edelman v. Jordan,

415 U.S. 651 (1974). In Memorial Hospital v.

Maricopa County, 415 U.S. 250 (1974), this Court held

that an Arizona statute prohibiting indigent people

from receiving emergency medical care at county

hospitals unless they established one year of

residency violated the right to travel because it denied

people “a basic necessity of life.” Id. at 259, 261-62.

The Court noted that “[t]he denial of medical care is

all the more cruel in this context” because it punished

“indigents who are often without the means to obtain

18

alternative treatment.” Id. at 261. And the Court

made clear: “[T]o the extent the purpose of the

[statute] is to inhibit the immigration of indigents

generally,

that

goal

is

constitutionally

impermissible.” Id. at 263-64; cf. Saenz v. Roe,

526 U.S. 489, 511 (1999) (“The States . . . do not have

any right to select their citizens.”).

So too is it constitutionally impermissible to use

criminal penalties to “make it uncomfortable enough

for [homeless people] in our city so they will want to

move on down the road.” JA 114. States and local

governments have ample authority to use criminal

punishments to serve legitimate ends related to

culpable conduct. Their “power to punish” does not

extend, however, to imposing criminal sanctions on

innocent conduct, for the purpose of causing pain and

suffering, in the hopes of banishing an unpopular

group from town. Austin, 509 U.S. at 610; Brief for

Respondents 32 (“[P]olicymakers are not free to inflict

punishment on a disfavored group of people in order

to make them leave the community.”). This Court

need only reaffirm these basic limits on criminal

punishment to resolve this case.

19

CONCLUSION

For the foregoing reasons, this Court should affirm

the judgment of the Court of Appeals for the Ninth

Circuit.

Respectfully submitted,

GREGORY CUI

Counsel of Record

GEORGE MILLS*

RODERICK & SOLANGE

MACARTHUR JUSTICE CENTER

501 H Street NE, Suite 275

Washington, DC 20002

(202) 869-3434

gregory.cui@macarthurjustice.org

* Admitted only in California and practicing

under the supervision of attorneys who are

admitted in the District of Columbia.

ANDREA LEWIS HARTUNG

RODERICK & SOLANGE

MACARTHUR JUSTICE CENTER

160 East Grand Avenue, 6th Fl.

Chicago, IL 60611

Counsel for Amici Curiae

APRIL 2024