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,

GLORIA JOHNSON, ET AL., 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 AMICI CURIAE

CURRENT U.N. SPECIAL RAPPORTEURS

IN SUPPORT OF RESPONDENTS

DAVID VENDERBUSH

Counsel of Record

ALSTON & BIRD LLP

90 Park Avenue

New York, NY 10016-1387

(212) 210-9532

david.venderbush@alston.com

April 3, 2024

Counsel for Amici Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iii

INTRODUCTION ....................................................... 1

IDENTITY AND INTEREST OF AMICI CURIAE ... 1

SUMMARY OF THE ARGUMENT ........................... 4

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

PUNISHING HOMELESSNESS VIOLATES

FUNDAMENTAL HUMAN RIGHTS. ................ 5

A. International Human Rights Standards

Are Evidence of an Evolving Standard of

Decency Crucial to Interpreting Violations

of “Cruel and Unusual Punishment” under

the Eighth Amendment. ................................ 5

B. Human Rights Bodies Articulate a Clear

and Consistent Standard that Punishing

Homelessness Constitutes CIDT. ................. 8

C. The U.S. has Itself Acknowledged

Punishment of Homelessness as a

Violation of Human Rights and CIDT. ....... 14

D. The City of Grants Pass Has Violated

Domestic and International Standards by

Punishing Homelessness. ............................ 18

II. THE

ROOT

CAUSE

THE

CRIMINALIZATION AND PUNISHMENT

OF HOMELESSNESS IS THE FAILURE TO

RECOGNIZE THE RIGHT TO ADEQUATE

HOUSING. ......................................................... 21

A. International

Human

Rights

Law

Recognizes the Right to Adequate

Housing. ....................................................... 21

B. Homelessness is a Prima Facie Violation

of the Right to Adequate Housing, as well

as a Violation of Civil and Political Rights.

...................................................................... 22

C. The U.S. Is Obligated to Address Racial

Discrimination in Homelessness and its

Criminalization. ........................................... 25

CONCLUSION ......................................................... 27

iii

TABLE OF AUTHORITIES

CASES

Bell v. City of Boise,

993 F. Supp. 2d 1237 (D. Idaho 2014) .................. 15

Graham v. Florida,

560 U.S. 48 (2010) ............................................... 7, 8

Roper v. Simmons,

543 U.S. 551 (2005) ................................................. 7

Trop v. Dulles,

356 U.S. 86 (1958) ............................................. 7, 16

CONSTITUTION AND STATUTES

U.S. CONST. art. VI ...................................................... 6

OTHER AUTHORITIES

60-Day Extended Weather Forecast for Grants

Pass,

OR,

ALMANAC.COM

(2024),

https://www.almanac.com/weather/longrange/

OR/Grants%20Pass ...............................................21

Afr. Ct. H.P.R., Request for Advisory Opinion by

the Pan African Lawyers Union (PALU) on the

Compatibility of Vagrancy Laws with the

African Charter on Human and Peoples’ Rights

and Other Human Rights Instruments

Applicable in Africa, para. 70, No. 001/2018,

Advisory

Opinion

Dec.

2020,

http://www.african-court.org/en/images/Cases/

Advisory%20Opinion/Advisory%20Opinions/00

1-2018_-_PALU-Advisory_Opinion.pdf ................13

AP, Indianapolis police officer accused of kicking

homeless man in the face, WDRB (Oct. 13,

2021),

https://www.wdrb.com/news/indianapolispolice-officer-accused-of-kicking-homelessman-in-the-face/article_e0a2bc3e-2c2b-11ec8714-8787cda497e3.html ................................26, 27

Average Winter Weather in Grants Pass, Oregon,

United

States,

WEATHERSPARK,

https://weatherspark.com/s/379/3/Average

Winter Weather in Grants-Pass-OregonUnited-States. .......................................................20

Brief for the United States as Amicus Curiae, City

of Grants Pass v. Johnson, No. 23-175 (petition

for

cert.

filed

Aug.

22,

2023),

http://www.supremecourt.gov/DocketPDF/23/2

3-175/302264/20240304183726571_23175npUnitedStates.pdf .........................................15

Magdalena

Sepúlveda

Carmona

(Special

Rapporteur on Extreme Poverty and Human

Rights), Extreme Poverty and Human Rights,

U.N. Doc. A/66/265 (Aug. 4, 2011) ........................10

CESCR, General Comment No. 3 (1990) ..................23

Committee

Against

Torture,

Concluding

Observations on the Third to Fifth Periodic

Reports of United States of America, U.N. Doc.

CAT/C/USA/3-5, at its 1264th and 1267th

meetings, and adopted at its 1276th and 1277th

meeting (Nov. 20, 2014), available at

https://www.justsecurity.org/wp content/uploads

/2014/11/UN-Committee-Against-TortureConcluding-Observations-United-States.pdf....18, 19

Committee Against Torture, Summary Record of

the 339th Meeting, 20th Sess., U.N. Doc.

CAT/C/SR.339 (18 May 1998), available at

https://www.un.org/unispal/document/autoinsert-184891/ ........................................................19

Committee Against Torture, U.N. GAOR, 52d

Sess., Supp. No. 44, U.N. Doc. A/52/44 (1997) .....18

Comm. Against Torture and other Cruel,

Inhuman, or Degrading Treatment or

Punishment, Concluding observations on the

combined third and fifth periodic reports of the

United States of America, U.N. DOC.

CAT/C/USA/CO/3-5 (Dec. 19, 2014) ......................26

Committee on Economic, Social and Cultural

Rights, General Comment No. 4: The Right to

Adequate Housing (Art. 11 (1) of the Covenant),

U.N. DOC. E/1992/23 (1991). ................................22

Committee on the Elimination of Racial

Discrimination, Concluding observations on the

combined seventh to ninth periodic reports of the

United States of America, CERD/C/USA/CO/7-9

(2014) .......................................................................9

Committee on the Elimination of Racial

Discrimination, Concluding observations on the

combined tenth to twelfth periodic reports of the

United States of America, CERD/C/USA/CO/1012 (Sep. 21, 2022) ..............................................9, 27

Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or

Punishment art. 16(1), ratified Oct. 21, 1994,

1465 UNTS 85 .........................................................6

Convention on the Elimination of All Forms of

Discrimination Against Women art. 14(2)(h),

signed July 17, 1980, 1249 U.N.T.S. 13 ...............22

Convention on the Rights of the Child art. 37,

signed Feb. 16, 1995, 1577 U.N.T.S. 3 ...................6

Decriminalizing Homelessness, HUD EXCH.

(2014),

https://www.hudexchange.info/homelessnessassistance/alternatives-to-criminalizinghomelessness/. .......................................................15

Tanya de Sousa et al., The 2022 Annual Homeless

Assessment Report (AHAR) to Congress, U.S.

DEP’T HOUS. & URB. DEV. 2 (2022),

https://www.huduser.gov/portal/sites/default/fil

es/pdf/2022-ahar-part-1.pdf ..................................25

European Convention for the Protection of Human

Rights and Fundamental Freedoms, opened for

signature Nov. 4, 1950, Art. 3, E.T.S. No. 5 .........12

G.A. Res. 71/256, New Urban Agenda (Dec. 23,

2016),

https://www.un.org/en/development/desa/popul

ation/migration/generalassembly/docs/globalco

mpact/A_RES_71_256.pdf .....................................17

Grants Pass v. Johnson, Brief in Opposition to

Petition for Writ of Certiorari, No. 23-175, U.S.

Supreme Court (2023) .....................................18, 19

Hurst Hannum, The Status of the Universal

Declaration of Human Rights in National and

International Law, 25 GA. J. INT’L & COMP. L.

287 (1996) ............................................................5, 6

vii

Hum. Rts. Comm., CCPR General Comment No.

20: Art. 7 (Prohibition of Torture, or Other

Cruel, Inhuman or Degrading Treatment or

Punishment), U.N. Doc. HRI/GEN/1/Rev.9 (Vol.

I) (Mar. 10, 1992) .....................................................7

Hum. Rts. Comm., Concluding Observations on

the Fourth Report of the United States of

America, U.N. Doc. CCPR/C/USA/CO/4 (Apr.

23, 2014) ..............................................................7, 9

Hum. Rts. Comm., Concluding Observations on

the Fifth Report of the United States of America,

U.N. Doc. CCPR/C/USA/CO/5 (Dec. 7, 2023) .........9

Human Rights Committee, General Comment No.

36,

https://www.ohchr.org/en/calls-for-input/

general-comment-no-36-article-6-right-life ..........24

HRC

Recommendations

U.S.A.

A/HRC/30/12/Add.1 – 176.310; Police Violence

Against Homeless, Poor Persons, Housing &

Homelessness Addressed at Global Review of

U.S. Human Rights Record, HOMELESSNESS

LAW (May 14, 2015),

http://homelessnesslaw.org/2015/05/policeviolence-against-homeless-poor-personshousing-homelessness-addressed-at-globalreview-of-u-s-human-rights-record/ ......................11

Hum. Rts. Comm., United States of America

Initial Report to the Human Rights Committee,

CCPR/C/81/Add.4 (Aug. 24, 1994) ..........................6

viii

Hum. Rts. Council, Draft Report of the Working

Group on the Universal Periodic Review, United

States of America, 26.255 U.N. Doc.

A/HRC/WG.6/36/L.11 (2020) .................................11

Human Rights Council, Institution-building of the

United Nations Human Rights Council,

A/HRC/RES/5/1

(June

18,

2007),

https://ap.ohchr.org/documents/dpage_e.aspx?s

i=A/HRC/RES/5/1 ....................................................2

Hum. Rts. Council, Report of the International

Independent Expert Mechanism to Advance

Racial Justice and Equality in the Context of

Law Enforcement, Visit to the United States of

America, U.N. Doc. A/HRC/54/CRP.7 (Sept. 26,

2023) ......................................................................27

Hum. Rts. Council, Report of the Special

Rapporteur on adequate housing as a

component of the right to an adequate standard

of living, and on the right to non-discrimination

in this context, U.N. Doc. A/HRC/31/54 (2015)....23,

Hum. Rts. Council, Report of the Special

Rapporteur on Contemporary Forms of Racism,

Racial Discrimination, Xenophobia and Related

Intolerance, Doudou Diene, mission to the

United States of America, U.N. Doc.

A/HRC/11/36/Add.3 at para. 64 (Apr. 28, 2009) ...26

Hum. Rts. Council, Report of the Special

Rapporteur on Extreme Poverty and Human

Rights on His Mission to the United States of

America, U.N. Doc. A/HRC/38/33/Add.1 (May 4,

2018) .......................................................... 10, 19, 24

Hum. Rts. Council, Report of the Special

Rapporteur on the Question of Torture and

Other Cruel, Inhuman or Degrading Treatment

or Punishment, U.N. Doc. A/59/324 (2004) ....19, 20

Hum. Rts. Council, Report of the Working Group

on the Universal Periodic Review, United States

of America, U.N. Doc. A/HRC/46/15/Add.1

(2021) .....................................................................12

Hum. Rts. Council, Special Rapporteur on

Adequate Housing as a Component of the Right

to an Adequate Standard of Living, and on the

Right to Non-Discrimination in This Context,

Guidelines for the Implementation of the Right

to Adequate Housing, U.N. Doc. A/HRC/43/43

(Dec. 26, 2019) .................................................10, 11

International Convention on the Elimination of

All Forms of Racial Discrimination art. 5(e)(iii),

ratified Oct. 21, 1994, 660 UNTS 195 ...... 21, 24, 25

International Covenant on Civil and Political

Rights art. 16(1), ratified Jun. 8, 1992, 999

U.N.T.S. 171 ......................................................6, 24

International Covenant on Economic, Social, and

Cultural Rights art. 11, signed Oct. 05, 1977,

993 U.N.T.S. 3 .......................................................21

Lăcătuş v. Switzerland, 14065/15 Eur. Ct. H.R.

(2021) .....................................................................23

LAWYERS’ COMMITTEE FOR CIVIL RIGHTS, CITED

BEING

PLAIN

SIGHT

(2020),

FOR

https://lccrsf.org/wp-content/uploads/2020/09/L

CCR_CA_Infraction_report_4WEB-1.pdf .............25

Letter from Lisa Foster, Dir., Off. for Access to Just.,

U.S. Dept. of Just., to Seattle City Council

Members (Oct. 13, 2016), https://assets.document

cloud.org/documents/3141894/DOJ-ATJ-Letter-t

o-Seattle-City-Council-10-13-2016.pdf .............15, 18

Kelsey McGee, Mid-January Series of Severe

Winter Storms Spikes ODOT’s Hours in

Overtime, Tons of Salt, Many Gallons of Deicer

Used, KTVZ (Jan. 26, 2024, 9:00 PM),

https://ktvz.com/news/oregon-northwest/2024/0

1/26/mid-january-series-of-severe-winter-storm

s-spikes-odots-hours-in-overtime-tons-of-saltmany-gallons-of-deicer-used/. ...............................20

NAT’L L. CTR. HOMELESSNESS & POVERTY, RACIAL

DISCRIMINATION

HOUSING

AND

HOMELESSNESS IN THE UNITED STATES (2014),

https://homelesslaw.org/wp-content/uploads/20

18/10/cerd_housing_report_2014.pdf ....................25

Office of the High Commissioner for Human

Rights (“OHCHR”), Special Procedures of the

Human Rights Council,

https://www.ohchr.org/en/hrbodies/sp/pages/int

roduction.aspx .....................................................1, 2

Catherine

Powell,

Dialogic

Federalism,

Constitutional Possibilities for Incorporation of

Human Rights Law in the United States, 150 U.

PA. L. REV. 245 (2001) .............................................6

Request for Advisory Opinion by the Pan African

Lawyers Union (PALU) on the Compatibility of

Vagrancy Laws with the African Charter on

Human and Peoples’ Rights and Other Human

Rights Instruments Applicable in Africa, No

001/2018 Afr. Ct. Hum. People’s Rts. (2020),

https://www.african-court.org/en/images/Cases/

Advisory%20Opinion/Advisory%20Opinions/00

1-2018_-_PALU-Advisory_Opinion.pdf ................13

RESTATEMENT (FOURTH) OF THE FOREIGN

RELATIONS LAW OF THE UNITED STATES (AM.

LAW INST. 2018) .................................................6, 23

SNAPS in Focus: The Case Against Laws that

Criminalize Homelessness, HUD EXCH. (Oct. 6,

2014),

https://www.hudexchange.info/news/snaps-infocus-the-case-against-laws-that-criminalizehomelessness .........................................................16

Statement of Interest of the United States, Bell v.

City of Boise, 993 F. Supp. 2d. 1237 (D. Idaho

2014) (No. 1:09-cv-00540-REB).......................15, 18

THE JOINT COMMITTEE ON HUMAN RIGHTS,

HOMELESSNESS BILL, 2001-4, HC First Report-2

(UK),

https://publications.parliament.uk/pa/jt200102/

jtselect/jtrights/30/3003.htm#n8 ...........................12

xii

Erin Vinoski Thomas and Chloe Vercruysse,

Homelessness

Among

Individuals

with

Disabilities: Influential Factors and Scalable

Solutions,

NACCHO

(Jun.

14,

2019),

https://www.naccho.org/blog/articles/homelessn

ess-among-individuals-with-disabilitiesinfluential-factors-and-scalablesolutions#:~:text=Point%2Din%2Dtime%20cou

nts%20(,health%20and%2For%20substance%2

0abuse ..............................................................13, 14

Torture Convention/Israel special report – CAT

meeting – Summary record, “Consideration of

Reports Submitted by State Parties under

Article 19 of the Convention, Conclusions and

recommendations of the Committee against

Torture, Israel,”

https://www.un.org/unispal/document/autoinsert-187716/ ........................................................19

U.N. Conference on Housing and Sustainable

Urban Development (Habitat III), The New

Urban Agenda, 20 October 2016, A/RES/71/256,

https://habitat3.org/the-new-urban-agenda/ ........16

U.N. Conference on Human Settlements (Habitat

II), Istanbul Declaration on Human Settlements,

June

1996,

A/CONF.165/14,

https://unhabitat.org/Istanbul-declaration-on-hu

man-settlements-1996-habitat-agenda ..................16

xiii

U.N. Human Rights Council, Report of the

Working Group on the Universal Periodic

Review, United States of America, Addendum,

Views on conclusions and/or recommendations,

voluntary commitments and replies presented

by the State under review, A/HRC/30/12/Add.1,

(Sept. 14, 2015),

https://www.ohchr.org/EN/HRBodies/HRC/Reg

ularSessions/Session30/Documents/A_HRC_30

_12_Add_1_ENG.DOCX ........................................12

U.N. Secretary-General, Inclusive policies and

programmes to address homelessness, U.N. Doc.

A/78/236 (Jul. 24, 2023),

https://digitallibrary.un.org/record/4018593?ln

=en&v=pdf .............................................................17

Universal Declaration of Human Rights, art. 7,

G.A. Res. 217 (III) A, U.N. Doc. A/810 (Dec. 10,

1948) ..................................................................5, 21

USICH,

SEARCHING

OUT

SOLUTIONS:

CONSTRUCTIVE

ALTERNATIVES

THE

CRIMINALIZATION OF HOMELESSNESS (2012),

https://www.usich.gov/tools-foraction/searching-out-solutions ..............................14

U.S. INTERAGENCY COUNCIL ON HOMELESSNESS,

FEDERAL STRATEGIC PLAN TO PREVENT AND END

HOMELESSNESS 28 (2022),

https://www.usich.gov/sites/default/files/docum

ent/All_In.pdf.........................................................26

Vienna Convention on the Law of Treaties, art.

18(a), Apr. 24, 1970, 1155 U.N.T.S. 331 .................6

xiv

Jesse Walter, Explanation of a Position on a

Resolution on the New Urban Agenda and

Strengthening of the United Nations Human

Settlements Program, UNITED STATES MISSION

TO THE UNITED NATIONS (Nov. 24, 2020),

https://usun.usmission.gov/explanation-ofposition-on-a-resolution-on-the-new-urbanagenda-and-strengthening-of-the-unitednations-human-settlements-program/..................17

Gregory Yee, O.C. sheriff’s deputy who fatally shot

unarmed, homeless Black man won’t be

charged, L.A. TIMES (Feb. 11, 2022),

https://www.latimes.com/california/story/202202-11/orange-county-sheriffs-deputy-nocharges-kurt-reinhold-fatal-shooting ...................26

INTRODUCTION

Professor Balakrishnan Rajagopal, the United

Nations (“U.N.”) Special Rapporteur on adequate

housing as a component of the right to an adequate

standard of living (“Special Rapporteur on Adequate

Housing”); and Professor Olivier De Schutter, U.N.

Special Rapporteur on extreme poverty and human

rights (“Special Rapporteur on Extreme Poverty”)

respectfully submit this brief as amici curiae in

support of Respondents. They bring expertise in

human right standards as well as knowledge of lived

reality with respect to housing and homelessness

including criminalization, extreme poverty, and cruel,

inhuman, or degrading treatment and can provide the

Court with relevant analysis.

IDENTITY AND INTEREST OF AMICI CURIAE 1

Amici curiae are experts appointed by the U.N.

Human Rights Council “with mandates to report and

advise on human rights from a thematic or countryAmici serving as Special

specific perspective.” 2

Rapporteurs are part of “[t]he system of Special

Procedures” that “is a central element of the United

Nations human rights machinery and covers all

1 Pursuant to Supreme Court Rule 36.7 amici state that: 1) this

brief build on an amicus brief presented in the Ninth Circuit in

Johnson v. City of Grants Pass; and 2) no person or entity other

than the amici, their members and counsel have made a

monetary contribution intended to fund the preparation or

submission of this brief.

2 Office of the High Commissioner for Human Rights (“OHCHR”),

Special Procedures of the Human Rights Council,

https://www.ohchr.org/en/hrbodies/sp/pages/introduction.aspx

(last visited March 25, 2024).

human rights: civil, cultural, economic, political, and

social.” 3 As mandate-holders, amici are independent

human rights experts selected for their “(a) expertise;

(b) experience in the field of the mandate;

integrity; and (f) objectivity.” 4 Special Rapporteurs

“undertake to uphold independence, efficiency,

competence

and

integrity

through

probity,

impartiality, honesty and good faith” and “do not

receive financial remuneration.” 5

In the performance of their mandates, the

Special Rapporteur on Adequate Housing, and the

Special Rapporteur on Extreme Poverty are accorded

certain privileges and immunities as experts on

mission for the U.N. pursuant to the Convention on

the Privileges and Immunities of the U.N., adopted by

the U.N. General Assembly on 13 February 1946, to

which the United States (“U.S.”) is a party since 29

April 1970. This brief is submitted voluntarily without

prejudice to, and should not be considered as a waiver,

express or implied, of the privileges and immunities of

the U.N., its officials and experts on mission, pursuant

to the 1946 Convention on the Privileges and

Immunities of the U.N. Authorization for the position

and views expressed as Special Rapporteurs, in full

3 Id.

4 Human Rights Council, Institution-building of the United

Nations Human Rights Council, A/HRC/RES/5/1 (June 18, 2007),

https://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/RES/5/

1 (last visited March 25, 2024).

OHCHR, Special Procedures of the Human Rights Council,

supra note 2.

accordance with the independence afforded to their

mandates, was neither sought nor given by the U.N.,

the U.N. Human Rights Council, the Office of the U.N.

High Commissioner for Human Rights, or any of the

officials associated with those bodies.

This case involves claims that a city’s

ordinances prohibiting camping in public cannot

constitutionally be applied to individuals who have no

access to indoor shelter. That question implicates

substantial interests of the U.N. Special Rapporteurs,

global experts appointed by the U.N. Human Rights

Council to promote the realization of all relevant

human rights standards with regards to housing

including homelessness, extreme poverty, and cruel,

inhuman, and degrading treatment. The U.S. is a

member of the Human Rights Council, recognizing the

authority of the Special Rapporteurs and expertise in

these matters. Amici have a strong interest in

ensuring that countries respect human rights and

interpretations of rights are consistent with

international human rights law.

SUMMARY OF THE ARGUMENT

Amici are the top experts in various aspects of

international human rights in the U.N. system,

including housing, homelessness, extreme poverty,

and cruel, inhuman and degrading treatment.

Johnson v. Grants Pass carries profound human rights

implications for the treatment of people experiencing

homelessness across the U.S. Originating from Grants

Pass, Oregon, this case centers on a lawsuit filed by a

group of individuals experiencing homelessness, who

face fines and jail time for sleeping outdoors. The crux

of the matter lies in whether municipalities can

penalize individuals for residing outside when they

lack alternative shelter. The Ninth Circuit’s ruling, in

line with the prior case of Martin v. Boise, affirmed

that punishing homeless individuals for sleeping

outdoors, absent adequate shelter options, constitutes

cruel and unusual punishment, contravening the

Eighth Amendment.

The Ninth Circuit’s decision is in accordance

with international human rights law. In defining

“cruel and usual punishment,” U.S. courts have looked

to the international human rights analogue of “cruel,

inhuman, or degrading treatment” (“CIDT”) as a

benchmark. Human rights bodies have consistently

found that punishing homelessness and involuntary

acts of survival constitutes CIDT, a stance supported

by the U.S. itself.

Moreover, while beyond the question presented

in this case, the root cause of this issue lies in the

failure to recognize the right to adequate housing,

which is inherently violated by homelessness. This

violation extends to various civil and political rights.

Specifically, we underscore the intersection of

homelessness with racial justice and the need for

affirmative measures to address racial discrimination

in housing.

The Supreme Court's review of Johnson v.

Grant Pass provides an opportunity to ensure the

fundamental constitutional and human rights of

people experiencing homelessness. We urge the Court

to uphold the lower court's decision and prevent a

backsliding on critical rights.

ARGUMENT

PUNISHING HOMELESSNESS VIOLATES

FUNDAMENTAL HUMAN RIGHTS.

A. International Human Rights Standards

Are Evidence of an Evolving Standard

of Decency Crucial to Interpreting

Violations of “Cruel and Unusual

Punishment”

under

the

Eighth

Amendment.

The right to be free from “cruel, inhuman, and

degrading treatment or punishment” (“CIDT”) is set

out in core international instruments drafted with the

leadership of the U.S. These include the Universal

Declaration

Human

Rights

(“UDHR”); 6

6 Universal Declaration of Human Rights, art. 7, G.A. Res. 217

(III) A, U.N. Doc. A/810 (Dec. 10, 1948) [hereinafter UDHR]. The

UDHR holds normative force as the foundational document of the

international human rights system, with parts of it binding

customary law. Hurst Hannum, The Status of the Universal

Declaration of Human Rights in National and International Law,

25 GA. J. INT’L & COMP. L. 287, 289 (1996). The U.S. played a key

role in the UDHR’s drafting, and it has “perhaps been referred to

International Covenant on Civil and Political Rights

(“ICCPR”) 7 and Convention Against Torture and

Other Cruel, Inhuman or Degrading Treatment or

Punishment (“CAT”), 8 treaties ratified by the U.S.; 9

and Convention on the Rights of the Child (“CRC”). 10

CIDT is an expansive concept that applies not

only to “acts that cause physical pain but also to acts

more frequently by U.S. courts than by courts in any other

jurisdiction.” Id. at 304-05 (1996).

7 International Covenant on Civil and Political Rights art. 16(1),

ratified Jun. 8, 1992, 999 U.N.T.S. 171 [hereinafter ICCPR].

Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment art. 16(1), ratified Oct. 21,

1994, 1465 UNTS 85, 113 [hereinafter CAT].

Treaties that the U.S. has ratified are legally binding. U.S.

CONST. art. VI (“[A]ll Treaties made . . . shall be the supreme

Law of the Land.”). Upon ratification of these human rights

treaties, however, the U.S. also entered a declaration that they

are not self-executing (Catherine Powell, Dialogic Federalism,

Constitutional Possibilities for Incorporation of Human Rights

Law in the United States, 150 U. PA. L. REV. 245, 258–259 (2001)),

meaning they do not on their own create a private right of action

directly enforceable in U.S. courts. Hum. Rts. Comm., United

States of America Initial Report to the Human Rights

Committee, para. 8, CCPR/C/81/Add.4 (Aug. 24, 1994).

10 Convention on the Rights of the Child art. 37, signed Feb. 16,

1995, 1577 U.N.T.S. 3 [hereinafter CRC]. While the U.S. has only

signed and not ratified the CRC, upon signature, it must “avoid

actions which could . . . defeat [the treaty’s] basic purpose.”

RESTATEMENT (FOURTH) OF THE FOREIGN RELATIONS LAW OF THE

UNITED STATES § 304 (AM. LAW INST. 2018); see also Vienna

Convention on the Law of Treaties, art. 18(a), Apr. 24, 1970, 1155

U.N.T.S. 331 (“A State is obliged to refrain from acts which would

defeat the object and purpose of a treaty when it has signed the

treaty.”).

that cause mental suffering to the victim.” 11 This

definition encompasses punishing individuals for

engaging in life-sustaining activities. 12

The Supreme Court has referred to these CIDT

provisions in determining the meaning of “cruel and

unusual punishment” within the Eighth Amendment.

In Roper v. Simmons, the Court consulted

international standards when applying the “evolving

standards of decency” test, which looks to “the

progress of a maturing society’ to determine which

punishments are so disproportionate as to be ‘cruel

and unusual.’” 13 The Court noted that the

“overwhelming weight of international opinion”

reflected in the CRC’s ban provided “significant

confirmation” for its determination that the death

penalty for juvenile offenders is cruel and unusual

punishment. 14

The Court in Graham v. Florida again found

the consensus of the international community

persuasive in determining whether the Eighth

Hum. Rts. Comm., CCPR General Comment No. 20: Art. 7

(Prohibition of Torture, or Other Cruel, Inhuman or Degrading

Treatment or Punishment), ¶ 5, U.N. Doc. HRI/GEN/1/Rev.9 (Vol.

I) (Mar. 10, 1992).

Hum. Rts. Comm., Concluding Observations on the Fourth

Report of the United States of America, ¶ 19, U.N. Doc.

CCPR/C/USA/CO/4 (Apr. 23, 2014) [hereinafter HRC Concluding

Observations: United States] (“The Committee notes that such

criminalization [of homelessness] raises concerns of

discrimination and cruel, inhuman or degrading treatment.”).

13 Roper v. Simmons, 543 U.S. 551, 551 (2005) (citing Trop v.

Dulles, 356 U.S. 86, 100–01 (1958).

14 Id. at 554.

Amendment’s prohibition of “cruel and unusual

punishment” applies to life without parole sentences

for juvenile offenders who had not committed

homicide. 15 In finding that this punishment violates

the Eighth Amendment, the Court noted that the U.S.

is “the only Nation that imposes this type of sentence,”

applying the “evolving standards of decency” test. 16

The Court looked to the practices of other countries

and international agreements as evidence “that a

particular sentencing practice is inconsistent with

basic principles of decency” within the meaning of the

Eighth Amendment. 17

B. Human Rights Bodies Articulate a

Clear and Consistent Standard that

Punishing Homelessness Constitutes

CIDT.

Punishing people experiencing homelessness

simply for engaging in life-sustaining conduct

constitutes CIDT under international law, as

repeatedly articulated by various human rights

bodies, including with direct reference to practices in

the U.S. During its review of the U.S. for its

compliance with ICCPR, the U.N. Human Rights

Committee (“HRC”) concluded that the U.S.’s

“criminalization of people living on the street for

everyday activities such as eating, sleeping, sitting in

particular areas. . . raises concerns of . . . cruel,

15 Graham v. Florida, 560 U.S. 48, 52–53 (2010).

16 Id. at 81.

17 Id. at 82.

inhuman or degrading treatment.” 18 In its recent 2023

review, the HRC called upon the U.S. to “[a]bolish the

laws and policies criminalizing homelessness at all

levels,” which includes fining people merely for

engaging in life-sustaining conduct, and “redirect[]

funding from criminal justice response towards

adequate housing and shelter programs.” 19 In its

review of the U.S., the U.N. Committee on the

Elimination of Racial Discrimination (“CERD”) issued

this same recommendation. 20

Previous U.N. Special Rapporteurs have

likewise condemned punishing homelessness as CIDT.

During her August 2011 visit to the U.S., the Special

Rapporteur on Extreme Poverty, remarked, “Where

18 HRC Concluding Observations: United States, supra note 12,

¶19.

19 Hum. Rts. Comm., Concluding Observations on the Fifth Report

of the United States of America, ¶ 41, U.N. Doc.

CCPR/C/USA/CO/5 (Dec. 7, 2023); see also HRC Concluding

Observations: United States, supra note 12, ¶19.

Committee on the Elimination of Racial Discrimination,

Concluding observations on the combined tenth to twelfth periodic

reports of the United States of America, CERD/C/USA/CO/10-12,

¶ 40 (Sep. 21, 2022) [hereinafter CERD Concluding Observations:

USA] (calling upon the U.S. to “abolish laws and policies that

criminalize homelessness” and “redirect funding from criminal

justice responses towards adequate housing and shelter

programmes”); see also Committee on the Elimination of Racial

Discrimination, Concluding observations on the combined

seventh to ninth periodic reports of the United States of America,

CERD/C/USA/CO/7-9, ¶ 12 (2014) (calling upon the U.S. to

“[a]bolish laws and policies making homelessness a crime”;

“intensify efforts to find solutions for the homeless, in accordance

with human rights standards”; and “[o]ffer incentives to

decriminalize homelessness”).

there is insufficient public infrastructure and services

to provide families with alternative places to perform

such behaviours, persons living in poverty and

homelessness are left with no viable place to sleep, sit,

eat or drink. These measures can thus have serious

adverse physical and psychological effects on persons

living in poverty. . . even amounting to cruel, inhuman

or degrading treatment.” 21 In 2017, the subsequent

Special Rapporteur on Extreme Poverty and Human

Rights highlighted the cruelty of regimes that fine

people experiencing homelessness for existing in

public: “Ever more demanding and intrusive

regulations lead to infraction notices for the homeless,

which rapidly turn into misdemeanours, leading to

warrants, incarceration, unpayable fines and the

stigma of a criminal conviction that in turn virtually

prevents subsequent employment and access to most

housing.” 22 In 2019, the Special Rapporteur on

Adequate Housing further noted that the very

existence of homelessness itself is “a profound assault

on dignity, social inclusion and the right to life. It is a

prima facie violation of the right to… freedom from

cruel, degrading and inhuman treatment.” 23 She thus

Magdalena Sepúlveda Carmona (Special Rapporteur on

Extreme Poverty and Human Rights), Extreme Poverty and

Human Rights, ¶ 36, U.N. Doc. A/66/265 (Aug. 4, 2011).

Hum. Rts. Council, Report of the Special Rapporteur on

Extreme Poverty and Human Rights on His Mission to the United

States of America, ¶¶ 45, U.N. Doc. A/HRC/38/33/Add.1 (May 4,

2018).

23 Hum. Rts. Council, Special Rapporteur on Adequate Housing

as a Component of the Right to an Adequate Standard of Living,

and on the Right to Non-Discrimination in This Context,

recommended that “any and all laws or measures that

criminalize, impose fines on or restrict homeless

people or behavior associated with being homeless,

such as sleeping or eating in public spaces, must be

immediately repealed.” 24

Universal Periodic Reviews (“UPR”) of the

U.S.’s compliance with human rights standards, a

peer review process under the U.N. Human Rights

Council, have further pointed to the need to address

the criminalization of homelessness and poverty.

During such reviews, countries have recommended

that the U.S. “[a]mend laws that criminalize

homelessness and which are not in conformity with

international human rights instruments” 25; that that

the U.S. refrain from using “policing as a response to

societal problems largely related to poverty” and

instead focus on solutions “that do not involve

criminalization” 26; and that the U.S. “[e]nd the

criminalization of poverty.” 27 While the U.S. did not

Guidelines for the Implementation of the Right to Adequate

Housing, ¶ 30, U.N. Doc. A/HRC/43/43 (Dec. 26, 2019).

24 Id. at ¶ 91(e).

HRC Recommendations to U.S.A. A/HRC/30/12/Add.1 –

176.310; Police Violence Against Homeless, Poor Persons,

Housing & Homelessness Addressed at Global Review of U.S.

Human Rights Record, HOMELESSNESS LAW (May 14, 2015),

http://homelessnesslaw.org/2015/05/police-violence-againsthomeless-poor-persons-housing-homelessness-addressed-atglobal-review-of-u-s-human-rights-record/.

26 Hum. Rts. Council, Draft Report of the Working Group on the

Universal Periodic Review, United States of America, 26.255

U.N. Doc. A/HRC/WG.6/36/L.11 (2020).

27 Id. at 26.284.

concede that current laws violate international

standards, it declared that it is “committed to helping

communities pursue alternatives to criminalizing

homelessness.” 28 The U.S. has also affirmed that it

“supports investing in direct solutions to alleviate the

personal and social problems surrounding the issues

of poverty.” 29

Other countries have further concluded that

punishing homelessness constitutes CIDT. For

instance, the United Kingdom Parliament expressed

concern that preventing a local housing authority from

allocating housing to certain groups of people

experiencing homelessness violated the right to be free

from CIDT under the European Convention for the

Protection of Human Rights and Fundamental

Freedoms. 30 Additionally, the African Court on

Human and Peoples’ Rights found that vagrancy laws,

which “punish the poor and underprivileged, including

28 U.N. Human Rights Council, Report of the Working Group on

the Universal Periodic Review, United States of America,

Addendum, Views on conclusions and/or recommendations,

voluntary commitments and replies presented by the State under

review, A/HRC/30/12/Add.1, ¶ 12 (Sept. 14, 2015),

https://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Sess

ion30/Documents/A_HRC_30_12_Add_1_ENG.DOCX.

Hum. Rts. Council, Report of the Working Group on the

Universal Periodic Review, United States of America, ¶ 12 U.N.

Doc. A/HRC/46/15/Add.1 (2021).

THE JOINT COMMITTEE ON HUMAN RIGHTS, HOMELESSNESS

BILL,

2001-4,

First

Report-2

(UK),

https://publications.parliament.uk/pa/jt200102/jtselect/jtrights/3

0/3003.htm#n8. See also European Convention for the Protection

of Human Rights and Fundamental Freedoms, opened for

signature Nov. 4, 1950, Art. 3, E.T.S. No. 5.

… the homeless,” 31 violate the African Charter on

Human and Peoples’ Rights’ prohibition on “cruel,

inhuman or degrading punishment and treatment.” 32

The Advisory Opinion also held that the enforcement

of vagrancy laws is contrary to States’ obligation to

protect the rights of women, children, and persons

with disabilities 33 and held such laws with

discriminatory effect towards marginalized groups to

be in violation of the right to equal protection. 34 This

is an important issue before the Court, as nearly a

quarter of the people experiencing homelessness in

the U.S. have a disability. 35

Afr. Ct. H.P.R., Request for Advisory Opinion by the Pan

African Lawyers Union (PALU) on the Compatibility of Vagrancy

Laws with the African Charter on Human and Peoples’ Rights

and Other Human Rights Instruments Applicable in Africa, para.

70, No. 001/2018, Advisory Opinion of Dec. 4, 2020,

http://www.africancourt.org/en/images/Cases/Advisory%20Opinion/Advisory%20Op

inions/001-2018_-_PALU-Advisory_Opinion.pdf.

32 Id.

Request for Advisory Opinion by the Pan African Lawyers

Union (PALU) on the Compatibility of Vagrancy Laws with the

African Charter on Human and Peoples’ Rights and Other

Human Rights Instruments Applicable in Africa, No 001/2018

Afr. Ct. Hum. People’s Rts. ¶ 139 (2020), https://www.africancourt.org/en/images/Cases/Advisory%20Opinion/Advisory%20Op

inions/001-2018_-_PALU-Advisory_Opinion.pdf.

34 Id. at para. 73.

35 Erin Vinoski Thomas and Chloe Vercruysse, Homelessness

Among Individuals with Disabilities: Influential Factors and

Scalable

Solutions,

NACCHO

(Jun.

14,

2019),

https://www.naccho.org/blog/articles/homelessness-amongindividuals-with-disabilities-influential-factors-and-scalable-

C. The U.S. has Itself Acknowledged

Punishment of Homelessness as a

Violation of Human Rights and CIDT.

The U.S. federal government has on multiple

occasions acknowledged that punishing lifesustaining conduct violates human rights and is

ineffective. In 2012, the U.S. Interagency Council on

Homelessness (“USICH”) issued a report noting that

“individuals who are arrested or fined for ‘act of living’

crimes in public spaces now have a criminal record,

resulting in barriers to work and difficulty in receiving

mainstream services and housing that often bar

individuals with criminal histories.” 36 The report

continues, “[i]n addition to violating domestic law,

criminalization

measures

may

also

violate

international human rights law, specifically the

Convention Against Torture and the International

Covenant on Civil and Political Rights.” 37 The USICH,

representing the expertise of 19 federal agencies, thus

recognizes that these laws are not only cruel, but

perpetuate a cycle of homelessness and constitute

potential treaty violations.

The Department of Justice (“DOJ”) and the

Department of Housing and Urban Development

solutions#:~:text=Point%2Din%2Dtime%20counts%20(,health%

20and%2For%20substance%20abuse.

U.S. Interagency Council on Homelessness, SEARCHING OUT

SOLUTIONS:

CONSTRUCTIVE

ALTERNATIVES

THE

CRIMINALIZATION OF HOMELESSNESS 1 (2012), https://

www.usich.gov/tools-for-action/searching-out-solutions.

37 Id. at 8.

(“HUD”) have likewise acknowledged the cruel futility

of laws punishing homelessness. In 2014, the DOJ

filed a brief in Bell v. Boise (later Martin v. Boise)

stating, “It should be uncontroversial that punishing

conduct that is a universal and unavoidable

consequence of being human violates the Eighth

Amendment.” 38 In 2016, the DOJ later affirmed that

its position in Bell was an “acknowledgement of the

human rights of people experiencing homelessness.” 39

The DOJ reiterated these same sentiments in its

amicus brief in this case. 40 HUD’s website also states

“criminalization policies further marginalize men and

women who are experiencing homelessness, fuel

inflammatory attitudes, and may even unduly restrict

constitutionally protected liberties and violate our

international human rights obligations.” 41 HUD

endorses USICH’s 2012 report, which emphasizes a

“human rights approach to ending homelessness and

points out that criminalization measures are not

38 Statement of Interest of the United States, Bell v. City of Boise,

993 F. Supp. 2d. 1237 (D. Idaho 2014) (No. 1:09-cv-00540-REB).

39 Letter from Lisa Foster, Dir., Off. for Access to Just., U.S. Dept.

of Just., to Seattle City Council Members 3 (Oct. 13, 2016),

https://assets.documentcloud.org/documents/3141894/DOJ-ATJLetter-to-Seattle-City-Council-10-13-2016.pdf.

40 Brief for the United States as Amicus Curiae at 19, City of

Grants Pass v. Johnson, No. 23-175 (petition for cert. filed Aug.

22,

2023),

http://www.supremecourt.gov/DocketPDF/23/23175/302264/20240304183726571_23-175npUnitedStates.pdf.

Decriminalizing Homelessness, HUD EXCH.

https://www.hudexchange.info/homelessnessassistance/alternatives-to-criminalizing-homelessness/.

(2014),

aligned with this approach.” 42 These prominent

acknowledgements by the U.S. government that

punishing homelessness violates basic rights,

combined with universal condemnation from the

international community, establish a clear standard

this Court should use to inform its interpretation of

the Eighth Amendment. Propping up laws punishing

homelessness through fines and fees would entail a

step backwards from “the evolving standards of

decency that mark the progress of a maturing

society.” 43

The U.S. has signed the Habitat II

Declaration, 44 adopted in Istanbul in 1996, along with

the subsequent Habitat III New Urban Agenda, 45

established in Quito in 2016. The New Urban Agenda,

adopted by the U.N. General Assembly with the

SNAPS in Focus: The Case Against Laws that Criminalize

Homelessness, HUD

EXCH. (Oct. 6, 2014), https://

www.hudexchange.info/news/snaps-in-focus-the-case-againstlaws-that-criminalize-homelessness.

43 Trop v. Dulles, 356 U.S. 86, 100–01 (1958).

44 U.N. Conference on Human Settlements (Habitat II), Istanbul

Declaration on Human Settlements, 14 June 1996,

A/CONF.165/14, available at: https://unhabitat.org/istanbuldeclaration-on-human-settlements-1996-habitat-agenda.

U.N. Conference on Housing and Sustainable Urban

Development (Habitat III), The New Urban Agenda, 20 October

2016, A/RES/71/256, available at: https://habitat3.org/the-newurban-agenda/.

affirmative vote of the U.S., 46 calls upon States to

“prevent and eliminate homelessness, as well as to

combat and eliminate its criminalization.” 47 In 2023,

the Report of the U.N. Secretary General on inclusive

policies and programmes to address homelessness,

called on States to review “legislation, regulations and

policies that may result in discriminatory outcomes

and taking steps to repeal or reform laws that penalize

or criminalize homelessness and essential activities

such as sleeping, begging, eating, or maintaining

personal hygiene in public spaces.” 48 These documents

underline the international community's position

against the criminalization of homelessness and

underscore the need for holistic strategies to address

the root causes of homelessness.

46 Jesse Walter, Explanation of a Position on a Resolution on the

New Urban Agenda and Strengthening of the United Nations

Human Settlements Program, UNITED STATES MISSION TO THE

UNITED NATIONS (Nov. 24, 2020),

https://usun.usmission.gov/explanation-of-position-on-aresolution-on-the-new-urban-agenda-and-strengthening-of-theunited-nations-human-settlements-program/.

47 G.A. Res. 71/256, New Urban Agenda, ¶ 33 (Dec. 23, 2016),

https://www.un.org/en/development/desa/population/migration/g

eneralassembly/docs/globalcompact/A_RES_71_256.pdf.

48 U.N. Secretary-General, Inclusive policies and programmes to

address homelessness, ¶ 82(f), U.N. Doc. A/78/236 (Jul. 24, 2023),

https://digitallibrary.un.org/record/4018593?ln=en&v=pdf.

D. The City of Grants Pass Has Violated

Domestic and International Standards

by Punishing Homelessness.

The City of Grants Pass has no shelters for

homeless individuals and a single transitional housing

program. 49 Further, the City Council President of

Grants Pass testified that the purpose of the

ordinances was to “make it uncomfortable,” so that

affected individuals “will want to move on down the

road.” 50 This kind of intentional cruelty in punishing

sleep, a universal and involuntary human

requirement, is the exact type of “punishing conduct”

that the DOJ states “uncontroversially” violates the

Eighth Amendment, 51 as well as human rights

standards. 52 The U.N. Committee against Torture

(“CAT Committee”) has noted that sleep deprivation

for prolonged periods is itself a form of torture or

CIDT. 53 Moreover, anti-camping ordinances not only

49 Grants Pass v. Johnson, Brief in Opposition to Petition for Writ

of Certiorari, No. 23-175, at 7, U.S. Supreme Court (2023).

50 Id. at 1.

51 Statement of Interest of the United States, Bell v. City of Boise,

993 F. Supp. 2d. 1237 (D. Idaho 2014) (No. 1:09-cv-00540-REB).

52 Letter from Lisa Foster, Dir., Off. for Access to Just., U.S. Dept.

of Just., to Seattle City Council Members 3 (Oct. 13, 2016),

https://assets.documentcloud.org/documents/3141894/DOJ-ATJLetter-to-Seattle-City-Council-10-13-2016.pdf (affirming that

the DOJ’s position in the City of Boise case was an

“acknowledgement of the human rights of people experiencing

homelessness.”).

53 Committee Against Torture, U.N. GAOR, 52d Sess., Supp. No.

44, at ¶ 257, U.N. Doc. A/52/44 (1997). See also Committee

Against Torture, Concluding Observations on the Third to Fifth

fail to address homelessness but impede “subsequent

employment and access to most housing,” trapping

individuals

poverty

and

exacerbating

homelessness. 54

Additionally, by defining its prohibition on

camping so expansively to include any bedding or

protection from the elements, 55 Grants Pass forces

individuals who have nowhere else to go to “choose”

between arrest or exposure to extreme temperatures.

Both the CAT Committee and Special Rapporteur on

Torture have identified exposure to extreme

temperatures as a form of torture or CIDT. 56 In fact,

Periodic Reports of United States of America, U.N. Doc.

CAT/C/USA/3-5, at its 1264th and 1267th meetings, and adopted

at its 1276th and 1277th meeting (Nov. 20, 2014), available at

https://www.justsecurity.org/wp-content/uploads/2014/11/UNCommittee-Against-Torture-Concluding-Observations-UnitedStates.pdf (identifying sleep deprivation as a form of prisoner and

detainee abuse practiced by the U.S. Government in

Guantanamo Bay and other detention facilities).

Hum. Rts. Council, Report of the Special Rapporteur on

Extreme Poverty and Human Rights on His Mission to the United

States of America, ¶¶ 45, U.N. Doc. A/HRC/38/33/Add.1 (May 4,

2018).

55 Grants Pass v. Johnson, Brief in Opposition to Petition for Writ

of Certiorari, No. 23-175, at 3, U.S. Supreme Court (2023).

Committee Against Torture, Summary Record of the 339th

Meeting, 20th Sess., U.N. Doc. CAT/C/SR.339 (18 May 1998),

available at https://www.un.org/unispal/document/auto-insert184891/; Torture Convention/Israel special report – CAT meeting

– Summary record, “Consideration of Reports Submitted by State

Parties under Article 19 of the Convention, Conclusions and

recommendations of the Committee against Torture, Israel,”

https://www.un.org/unispal/document/auto-insert-187716/; Hum.

Rts. Council, Report of the Special Rapporteur on the Question of

even without an ordinance punishing people for

sleeping outside, the lack of shelter beds in Grants

Pass forcing people to sleep in the cold is already cruel

and a violation of human rights. Grants Pass is thus

heaping punishment on top of suffering. This year, a

majority of Oregon, and specifically the City of Grants

Pass, experienced one of the harshest winters in

years. 57 Oregon’s Department of Transportation

(“ODOT”) reported that “[s]tatewide, this [was] one of

the biggest and most wide stretching storms that

we’ve seen in a long time.” 58 The storms brought high

winds, icy roads, and deep snowfall to most of the

state, and the ODOT has stated that some

communities are still recovering. 59 Based on these

Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, ¶ 17, U.N. Doc. A/59/324 (2004) (explaining that

even without other forms of abusive interrogation or detention

techniques, exposure to extreme temperatures constitutes

torture or CIDT).

Average Winter Weather in Grants Pass, Oregon, United

States, WEATHERSPARK, https://weatherspark.com/s/379/3/

Average-Winter-Weather-in-Grants-Pass-Oregon-United-States;

Kelsey McGee, Mid-January Series of Severe Winter Storms

Spikes ODOT’s Hours in Overtime, Tons of Salt, Many Gallons of

Deicer

Used,

KTVZ

(Jan.

26,

2024,

9:00

PM),

https://ktvz.com/news/oregon-northwest/2024/01/26/midjanuary-series-of-severe-winter-storms-spikes-odots-hours-inovertime-tons-of-salt-many-gallons-of-deicer-used/.

58 Kelsey McGee, Mid-January Series of Severe Winter Storms

Spikes ODOT's Hours in Overtime, Tons of Salt, Many Gallons of

Deicer

Used,

KTVZ

(Jan.

26,

2024,

9:00

PM),

https://ktvz.com/news/oregon-northwest/2024/01/26/midjanuary-series-of-severe-winter-storms-spikes-odots-hours-inovertime-tons-of-salt-many-gallons-of-deicer-used/.

59 Id.

extreme weather conditions, it is clear that residents

of Grants Pass would have died had they attempted to

sleep outside without any protection. 60

II.

THE

ROOT

CAUSE

THE

CRIMINALIZATION AND PUNISHMENT

OF HOMELESSNESS IS THE FAILURE

TO RECOGNIZE

THE RIGHT TO

ADEQUATE HOUSING.

A. International Human Rights Law

Recognizes the Right to Adequate

Housing.

Rights violations caused by the punishment of

homelessness stem from the failure to recognize the

right to adequate housing—a fundamental right

under international law. International instruments

that provide for this right include the UDHR, 61

International Convention on the Elimination of Racial

Discrimination (“ICERD”), 62 International Covenant

Economic,

Social

and

Cultural

Rights

(“ICESCR”), 63 and Convention on the Elimination of

60-Day Extended Weather Forecast for Grants Pass, OR,

ALMANAC.COM (2024),

https://www.almanac.com/weather/longrange/OR/Grants%

20Pass.

61 UDHR, supra note 6 at art. 25(1).

62 International Convention on the Elimination of All Forms of

Racial Discrimination art. 5(e)(iii), ratified Oct. 21, 1994, 660

UNTS 195, 212 [hereinafter ICERD].

International Covenant on Economic, Social, and Cultural

Rights art. 11, signed Oct. 05, 1977, 993 U.N.T.S. 3.

all Forms of Discrimination Against Women. 64 As the

U.N. Committee on Economic, Social and Cultural

Rights (“CESCR”) has explained, the right to adequate

housing is not merely a right to shelter, nor does it

require that governments provide a house to every

person free of charge. 65 Instead, it requires that

governments take steps to ensure all people are able

to house themselves with dignity. 66 This obligates

housing with security of tenure, including protection

against forced eviction, and availability of services,

materials and infrastructure—both of which are

affordable, habitable, accessible, well-located, and

culturally adequate. 67

B. Homelessness is a Prima Facie

Violation of the Right to Adequate

Housing, as well as a Violation of Civil

and Political Rights.

Homelessness itself is a prima facie violation of

the right to adequate housing. As CESCR explained,

“a State party to [ICESCR] in which any significant

number of individuals are deprived of basic shelter

and housing is, prima facie, failing to discharge its

64 Convention on the Elimination of All Forms of Discrimination

Against Women art. 14(2)(h), signed July 17, 1980, 1249 U.N.T.S.

13.

65 Committee on Economic, Social and Cultural Rights, General

Comment No. 4: The Right to Adequate Housing (Art. 11 (1) of the

Covenant), ¶ 7, U.N. DOC. E/1992/23 (1991).

66 Id.

67 Id. at ¶ 8.

obligations under the Covenant.” 68 While the U.S. has

not yet ratified ICESCR, as a signatory, it must not

act in any way that violates the Covenant’s object and

purpose. 69. Homelessness itself violates this and

punishing it makes it far worse. As the Special

Rapporteur on Adequate Housing noted, the “right to

adequate housing is, at its core, the right to a place to

live in dignity and security.” 70 Punishment heaped

upon people already experiencing homelessness for

engaging in life sustaining activities directly

undermines their dignity and security. Evolving

standards of human rights recognize that such

punishments of extremely vulnerable people are

inconsistent with international law. 71

Moreover, homelessness is not just a violation

of the right to adequate housing, but also a violation

of various civil and political rights, espoused in

treaties the U.S. has ratified. 72 In addition to violating

Hum. Rts. Council, Report of the Special Rapporteur on

adequate housing as a component of the right to an adequate

standard of living, and on the right to non-discrimination in this

context, ¶ 48, U.N. Doc. A/HRC/31/54 (2015) (citing CESCR,

General Comment No. 3 (1990), ¶ 10).

69 RESTATEMENT (FOURTH) OF THE FOREIGN RELATIONS LAW OF

THE UNITED STATES § 304 (AM. LAW INST. 2018)

Hum. Rts. Council, Report of the Special Rapporteur on

adequate housing as a component of the right to an adequate

standard of living, and on the right to non-discrimination in this

context, ¶ 11, U.N. Doc. A/HRC/34/51 (2017).

71 Lăcătuş v. Switzerland, 14065/15 Eur. Ct. H.R. (2021).

Hum. Rts. Council, Report of the Special Rapporteur on

adequate housing as a component of the right to an adequate

the

prohibition

against

CIDT,

punishing

homelessness violates the rights to life, liberty and

security of person, 74 freedom of movement, 75 and

equality and non-discrimination. 76 As the Special

Rapporteur on Adequate Housing explained,

“homelessness is an extreme violation of the rights to

adequate housing and non-discrimination and often

also a violation of the rights to life, to security of

person, to health, to protection of the home and family

and to freedom from [CIDT].” 77

standard of living, and on the right to non-discrimination in this

context, ¶ 4, U.N. Doc. A/HRC/31/54 (2015).

ICCPR, supra note 7 at art. 6. Human Rights Committee,

General Comment No.36, ¶ 26 (“The duty to protect life also

implies that States parties should take appropriate measures to

address the general conditions in society that may give rise to

direct threats to life or prevent individuals from enjoying their

right to life with dignity. These general conditions may include

… deprivation of indigenous peoples’ land, territories and

resources… widespread hunger and malnutrition…and

homelessness. available at https://www.ohchr.org/en/calls-forinput/general-comment-no-36-article-6-right-life.

74 ICCPR, supra note 7 at art. 9.

75 ICCPR, supra note 7 at art. 12.

76 ICCPR, supra note 7 at art. 4(1) and art. 26; ICERD, supra note

62 at art. 5.

77 Hum. Rts. Council, supra note 54 at ¶ 4.

C. The U.S. Is Obligated to Address Racial

Discrimination in Homelessness and its

Criminalization.

Having ratified the ICERD, the U.S. has

undertaken “to eliminate racial discrimination” and

“guarantee” equality “in the enjoyment of . . . the right

to housing.” 78 However, in the U.S., homelessness is

deeply intertwined with racial discrimination and

systemic

racism.

Despite

only

constituting

approximately 12% of the general population in the

U.S., Black people account for 37% of unhoused

persons, due to long-standing laws and policies

adversely affecting Black communities. 79 As such, the

criminalization of homelessness disproportionately

impacts Black communities. Moreover, Black people

are more likely to receive citations under laws that

prohibit life-sustaining activities than white people. 80

As the U.N. Special Rapporteur on Racism has

recognized, “The enforcement of minor law

enforcement violations . . . take a disproportionately

78 ICERD, supra note 62 at art. 5(e)(iii).

79 Tanya de Sousa et al., The 2022 Annual Homeless Assessment

Report (AHAR) to Congress, U.S. DEP’T HOUS. & URB. DEV. 2

(2022),

https://www.huduser.gov/portal/sites/default/files/pdf/2022ahar-part-1.pdf.

NAT’L L. CTR. HOMELESSNESS & POVERTY, RACIAL

DISCRIMINATION IN HOUSING AND HOMELESSNESS IN THE UNITED

STATES

(2014),

https://homelesslaw.org/wpcontent/uploads/2018/10/cerd_housing_report_2014.pdf. See also

LAWYERS’ COMMITTEE FOR CIVIL RIGHTS, CITED FOR BEING IN

PLAIN

SIGHT

5-6

(2020),

https://lccrsf.org/wpcontent/uploads/2020/09/LCCR_CA_Infraction_report_4WEB1.pdf.

high number of African American homeless persons to

the criminal justice system.” 81 The USICH has itself

acknowledged that “Anti-Black racism continues to be

ignored as a root cause of homelessness, and Black

unhoused persons continue to be inadequately

protected from housing discrimination, over-policing,

criminalization of poverty, and other systemic forces

that contribute to their overrepresentation in the total

population of unhoused persons.” 82 Criminalization

further places law enforcement as front-line

responders to homelessness, all too often resulting in

violations of physical integrity that have a disparate

impact by race. 83 In its 2023 report, the U.N. Expert

Hum. Rts. Council, Report of the Special Rapporteur on

Contemporary Forms of Racism, Racial Discrimination,

Xenophobia and Related Intolerance, Doudou Diene, mission to

the United States of America, ¶ 64, U.N. Doc. A/HRC/11/36/Add.3

at para. 64 (Apr. 28, 2009).

U.S. INTERAGENCY COUNCIL ON HOMELESSNESS, FEDERAL

STRATEGIC PLAN TO PREVENT AND END HOMELESSNESS 28 (2022),

https://www.usich.gov/sites/default/files/document/All_In.pdf

(quoting a homeless rights advocate from Washington, District of

Columbia).

Comm. Against Torture and other Cruel, Inhuman, or

Degrading Treatment or Punishment, Concluding observations

on the combined third and fifth periodic reports of the United

States of America, ¶ 26, U.N. DOC. CAT/C/USA/CO/3-5 (Dec. 19,

2014) (highlighting the disproportionate and increasing incidents

of police brutality against people of color in the U.S.). See, e.g.

Gregory Yee, O.C. sheriff’s deputy who fatally shot unarmed,

homeless Black man won’t be charged, L.A. TIMES (Feb. 11, 2022),

https://www.latimes.com/california/story/2022-02-11/orangecounty-sheriffs-deputy-no-charges-kurt-reinhold-fatal-shooting;

AP, Indianapolis police officer accused of kicking homeless man

the

face,

WDRB

(Oct.

13,

2021),

https://www.wdrb.com/news/indianapolis-police-officer-accused83

Mechanism on Law Enforcement and Racism

expressed its “deep[] concern[] . . . that homelessness

persecution and criminalization is ineffective in

addressing the issue and deeply damaging to

individuals and communities” and urged the U.S. “to

address the root causes of homelessness, including the

confluence of various and intersecting layers of

discrimination and systemic racism at the heart of the

housing problem.” 84

CONCLUSION

As the top international human rights experts

on housing, homelessness, extreme poverty, as well as

cruel, inhuman and degrading treatment, we

unequivocally condemn laws that force human beings

to make a choice between keeping themselves alive

through life-sustaining activities due to lack of

available alternatives, or subjecting themselves to

arrest or other punishment that becomes a slippery

slope of escalating vulnerability. By using such laws

to purposefully and cruelly exclude people

experiencing homelessness from its public spaces and

subjecting them to arrest, fines, and fees, Grants Pass

of-kicking-homeless-man-in-the-face/article_e0a2bc3e-2c2b11ec-8714-8787cda497e3.html.

Hum. Rts. Council, Report of the International Independent

Expert Mechanism to Advance Racial Justice and Equality in the

Context of Law Enforcement, Visit to the United States of

America, ¶¶ 121, 123, U.N. Doc. A/HRC/54/CRP.7 (Sept. 26,

2023). See also CERD Concluding Observations: USA, supra note

20 at ¶ 39 (noting with concern “the increasing number of state

and local laws that criminalize homelessness and … the

disproportionately high number of persons belonging to racial

and ethnic minorities affected by homelessness”).

has violated fundamental human rights. In defining

“cruel and unusual punishment” under the Eighth

Amendment, this Court has relied on international

human rights standards as a moral benchmark in line

with “evolving standards of decency.” Similarly, this

Court should apply the clear and consistent standard,

articulated by numerous human rights bodies, that

laws punishing homelessness in the absence of any

adequate alternative housing constitute CIDT and

analogously violate the Eighth Amendment.

Upholding the 9th Circuit’s ruling in this case is a first

step, but ultimately, addressing the underlying causes

of homelessness requires recognition of the right to

adequate housing and measures to enable access to

adequate

housing

for

people

experiencing

homelessness.

Respectfully submitted,

DAVID VENDERBUSH

Counsel of Record

ALSTON & BIRD LLP

90 Park Avenue

New York, NY 10016-1387

(212) 210-9532

david.venderbush@alston.com

April 3, 2024

Counsel for Amici Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.