Said Justice Alito, in yesterday's oral argument in City of Grants Pass v. Johnson. There's a precedent, Robinson v. California, that found it to be cruel and unusual punishment to make a crime of the "status" of drug addiction. The 9th Circuit said that the city — by prohibiting sleeping outdoors — had made a crime out of the status of homelessness.
For more detail, see the SCOTUSblog coverage: "Court divided over constitutionality of criminal penalties for homelessness."
To address its homelessness problem, the city in 2013 decided to increase enforcement of existing ordinances that bar the use of blankets, pillows, and cardboard boxes while sleeping within the city.
The ordinances impose a $295 fine for violations, with the fine increasing to more than $500 if it is unpaid. After two citations, police officers can issue an order that bans the individual from city property; a violation of that order exposes the individual to conviction on criminal trespass charges, which carry penalties of up to 30 days in jail and a $1250 fine....
Justice Sonia Sotomayor noted that the city’s ordinances only apply to homeless people who sleep in public. Police officers in Grants Pass, she suggested, don’t arrest others who fall asleep in public with blankets – for example, babies with blankets or people who are stargazing....
Justice Elena Kagan compared sleeping in public, for people who are homeless and have nowhere else to go, to “breathing in public.”...
I see that Justice Gorsuch asked: "How about if are no public bathroom facilities? Can -- do people have an Eighth Amendment right to defecate and urinate outside?... Is that conduct or is that status?"
ADDED: I've quoted this before, an unforgettable passage from George Orwell's "Down and Out in Paris and London."
When we got into London we had eight hours to kill before the lodging-houses opened. It is curious how one does not notice things. I had been in London innumerable times, and yet till that day I had never noticed one of the worst things about London — the fact that it costs money even to sit down. In Paris, if you had no money and could not find a public bench, you would sit on the pavement. Heaven knows what sitting on the pavement would lead to in London — prison, probably. By four we had stood five hours, and our feet seemed red-hot from the hardness of the stones. We were hungry, having eaten our ration as soon as we left the spike, and I was out of tobacco — it mattered less to Paddy, who picked up cigarette ends. We tried two churches and found them locked. Then we tried a public library, but there were no seats in it. As a last hope Paddy suggested trying a Rowton House; by the rules they would not let us in before seven, but we might slip in unnoticed. We walked up to the magnificent doorway (the Rowton Houses really are magnificent) and very casually, trying to look like regular lodgers, began to stroll in. Instantly a man lounging in the doorway, a sharp-faced fellow, evidently in some position of authority, barred the way.
'You men sleep 'ere last night?'
'No.'
'Then — off.'
We obeyed, and stood two more hours on the street corner. It was unpleasant, but it taught me not to use the expression 'street corner loafer', so I gained something from it.
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48 comments:
People who camp out on the streets aren't doing so because they have nowhere else to go, they're doing so because they are mentally ill drug addicts who don't want to abide by the rules of shelters and other places that might offer them a roof and a hot meal. Society shouldn't have to tolerate that.
I think the main problem is that there are all sorts of variables and conflicting interests, so the Court isn't going to want to nail anything down as a right. The city is trying to deal with the problem, and maybe needs the power to make policy without needing to work around a right to camp.
Perhaps our host can discuss "status" vs. "conduct/action" at some point. Is the distinction between the two clearly defined in law, or is it so nuanced that even judges have difficulty defining the break point?
Ann Althouse noted"all sorts of variables and onflicting interests." Exactly. That is why, in a democracy, the people get to vote for legislators to sort those variables and conflicting interests out. Courts are ill-equipped to do this. Also, if voters and legislators continually rely on courts to o the hard work, they will be out of practice of resolving hard issues. I note in California the 9th Circuit has basically handed the public parks over to the homeless. This redistribution of public resources by judicial fiat may make the benighted judges feel better about themselves. I would be more impressed if they redistributed private golf courses to the homeless. Especially golf courses of which they or their friends were members. In the end, redistributing public parks to homeless people will drive people out of cities. People will yearn to go the suburbs, where they can get sublight and the experience of sitting on grass in their own fenced in home or walled community. That, of course, is exactly the environment these judges already live in, so they have no sense that they are essentially robbing those who still live in the cities of the very amenities that help to make city living livable.
If you have met drug addicts, especially those hooked on crack and heroine, they are incapable of stopping. My heart breaks for them, because the US wants targeted populations hooked on drugs.
But, I don't want homeless drug addicts camping out in front of my house in Sussex, WI. I'd imagine Ivory Tower liberals that work for UW-Madison don't want it either.
"Do you think... that all people who are drug addicts are absolutely incapable of refraining from using drugs?"
Any lawyer who answers this question in the affirmative deserves to be disbarred on grounds of gross stupidity.
This harkens back to the discussion of Daniel Dennett and free will. If John commits an offense against Jill, but does so by compulsion, without free will, then there's no point in punishing John. If John is compelled to act against Jill, then Jill has no recourse other than to submit to John's depredations or to take action against him proactively. If the precedent is set that drug users have no free will, then we have taken a giant step down the road to a place no one with confidence in self-government wants to go.
Stop sleep. Bad things happen to your body.
Stop drugs. Good things happen to your body.
Seems a sufficient distinction to trash a few hypotheticals, no?
The social and public problem of homelessness is less a lack of roofs over sleeping heads; and more a lack of toilets under pooping butts.
Addicts are incapable of not using drugs.
Obese people are incapable of not overeating.
Next it will be that horny teenage boys are incapable of not raping young women.
Or, all of the above could be human and behave accordingly.
"People who camp out on the streets aren't doing so because they have nowhere else to go, they're doing so because they are mentally ill drug addicts who don't want to abide by the rules of shelters and other places that might offer them a roof and a hot meal. Society shouldn't have to tolerate that."
And then there are those who have no other options but to camp out in the streets. I don't know about other cities, but the homeless shelters in NYC can be violent and dangerous. This results in many homeless people not wanting to abide shelters and the residents therein who are violent due to mental illness or purely predatory motives. People shouldn't have to tolerate that just because they are homeless..
It is insane to accommodate insanity. It is even more insane to rationalize it into a constitional "right." It is the height of insanity to elevate that invented right over the right of public to decide on rules for public order and protect itself against disorder. But that's where we are.
The notion that drug addiction is some involuntary condition akin to slavery is pure bullshit. Drug "addicts" choose to do drugs because they enjoy doing drugs more than they enjoy the alternative at that moment. Make the alternative sufficiently unpleasant, and the drug use will stop. I put quotes around addicts because I question the very idea of addiction. It is a choice. Quitting opiates is no worse than a dose of influenza, it's unpleasant, but not the end of the world. I speak with a great deal of experience about this, unfortunately.
Orwell doesn't apply. There isn't a town, let alone city in this country that lacks services funded by taxpayers for the purported and aggressively "homeless." We spend at least five billion a year -- "we" meaning taxpayers, federal, state, local, and city.
This exchange sounds like a conversation between several monumentally and hopelessly naive people who have never had to confront reality for five seconds or solve a real problem, not ever in their lives.
Remember Herman Cain's proposal that all youth should have to serve a (paid, of course) year either in the military or working in a fast food restaurant after high school? That's one of the wisest things ever uttered by a politician. I miss him.
It's insane not to accommodate insanity. Obviously these people need accommodations because they cannot provide them for themselves. Wishing the problem will go away is insane. This notion is the equal and opposite Insanity of the libtard let them camp wherever they want solution.
Gusty Winds: working in building trades and social services, I know many addicts who stopped/outgrew crack and heroin. Theodore Dalrymple, a longtime prison psychiatrist with decades of experience with addicts, has proven that getting off heroin is easier than quitting smoking: naive people just romanticize it.
The problem as I see it, is that the court is trying to squish all of the reasons a person might be camping in the streets into an explainable category. What for? Vagrancy is vagrancy. It's a social malaise, as we can all plainly see. It's not down to the constabulary to fix the problem that has been created by others, directly or indirectly. It's down to them to keep the peace and the social order.
One only needs to look at California's cities, and increasingly, other cities, to see where this is heading to - all of the living examples converge on filth, chaos, misery, and urban blight. The best solution is to honor the laws on the books and dump the homeless problem onto the people that claim to be solving it, at huge expense. Make them legally liable for the fallout - and then cut their public funding so they can live off Soro's largesse, for a change.
You need at least one Ivy League degree (or maybe any old law degree) to think that being a bum is protected by the Eighth Amendment.
Tina, I'm glad you mentioned Dalymple. He is a very smart and interesting writer, and his take on addiction is exactly right. I also agree with his thoughts regarding tattoos. Of all the things I have quit in years past, cigarettes were the most difficult.
"Gusty Winds: working in building trades and social services, I know many addicts who stopped/outgrew crack and heroin. Theodore Dalrymple, a longtime prison psychiatrist with decades of experience with addicts, has proven that getting off heroin is easier than quitting smoking: naive people just romanticize it."
Keith Richards (Rolling Stones) says that of all the vices/addictions he has conquered, the hardest addiction for him to kick is smoking cigarettes.
Eventually, homeless people are "homeless", a status. But they took many, many actions to get there. Giving people a right to tents and such makes if more likely they will make bad decisions and take actions that lead to their becoming homeless. "The easier it is to be homeless, the more homeless there will be."
The people of Grant's Pass are probably not heartless. They were probably thinking they wanted to avoid the consequences experienced by other cities who provide amenities for the homeless and have a tolerant official attitude towards those living on the street, namely, those places have attracted many more homeless. The Grant's Pass approach seems to have been, if we have a tough reputation, they'll go somewhere else and it won't be our problem. It would have worked too. The homeless/drug addiction crisis would have been out of sight and out of mind for the good people of Grant's Pass.
I can't blame them. They're just individuals doing their best to keep their own ships off the rocks. They're thinking practically and locally. They're asking, what can we do here as a community because we have no control over the big picture, which is a national crisis no one seems to be able or even willing to solve. The SC is thinking about a much bigger picture in a much more abstract way.
Obviously, I don't know what the answer is. I'm just a dumb nail pounder. But there are a lot of really smart, creative people out there who could work on it. Unfortunately, it seems they've been conned into focusing their minds on non-existent problems instead serious ones like this. They've probably been conned into effective uselessness by the same people who are the source of the fentanyl that so exacerbates our homeless/drug addiction crisis.
I can't begin to imagine how much laughing and head-shaking that Thomas will have gotten over this 8th amendment case or controversy before a decision is issued - and then if there's a decision in favor of those who camp in public spaces in violation of the law, more head-shaking for his remaining years after he issues a must-read dissent.
Robert Cook said...
And then there are those who have no other options but to camp out in the streets. I don't know about other cities, but the homeless shelters in NYC can be violent and dangerous. This results in many homeless people not wanting to abide shelters and the residents therein who are violent due to mental illness or purely predatory motives. People shouldn't have to tolerate that just because they are homeless.
Cook inadvertently notices the real problem: Democrat policies of early release, no cash bail, and limiting prosecution to Republican political opponents have let violent people turn the streets of New York into a place people shouldn't have to tolerate.
Free will is a necessary fiction. I pretend that my posts are voluntary choices. But part of me understands that the decision to post here is the result of a confluence of personal and external influences. It feels like volition, but in some way my decision is already made. I am not addicted.
If a person becomes destitute as a result of inactivity can we then label inactivity a crime?
And again if a person dies as a result of inactivity can we label the society which allowed inactivity as criminals?
In the end the only tool available to fix this problem is the whip. Are you willing to use it?
The problem with the urban outdoorsmen is that they set up camp in parks, or on commercial-area or residential-area sidewalks, and make life miserable for those who would like to shop or live in peace. Who wants to dodge piles of human excrement, or to have to deal with crazy people all the time?
Cities should find (or buy) empty lots somewhere out of public sight, and allow camping there, and nowhere else. Police them for drug-dealing. Have a night-school lawyer on hand to provide an immediate trial, then throw offenders in the worst jail permitted by the law. Offer drug addiction help to those who'll take it. Offer one-way bus tickets out of town. Make sure everyone in the hobo community knows to stay away from this town. It's a bummer, man!
Actually, it has been my understanding that some homeless people DO have an alternative but some are mentally ill and will not take advantage of their alternatives, while others are afraid to go into shelters due to crime in them.
Which is not to say that there's shelter room for every single homeless person. There's not. But the issue is not entirely black and white.
It does harm to people if you let them live in these homeless encampments. They haven't learned how to control themselves. Churches did an infinitely better job of actually helping these people.
The politicians in these cities are farming homeless people using their problems and their pain to get rich. Homelessness is a billion dollar industry in multiple cities with an army of grifters pulling in 6 figure salaries and sucking the life out of these homeless people like vampires.
It is disgusting and it is time we purged the country of these bureaucrat grifter scumbags.
'They have absolutely none.'
Every large city in America has programs (at great expense with a lot of fraud) to provide beds for the 'unhoused.'
These are either city-run or some organization like Catholic Charity or St. Anthony's.
But all of them (as far as I know) do not allow drug use at the facilities.
So the drug addicts are choosing drugs over beds.
I have quit drinking and I have quit smoking. Addicted to both. Quitting smoking way harder than stopping drinking.
So the shelters available for the homeless are dangerous because they are filled with the homeless. So to be safe they go to REI and purchase a nice tent and some comfy sleeping pads and maybe a gas stove and a backpack for the drugs and the pipe or the needles and syringes. Because the dangerous shelters don’t let you shoot up.
Why do some towns and cities not have this problem. I suspect those places make drug taking and dealing a hassle which is totally avoidable in cities that allow, condone, drugs. Because those places have robust homeless industries with sober people making a good living by keepin homeless a problem that cannot be solved.
Hopefully the court will permit camping in suburban front yards. Because fair.
Ya know if you quit feeding them they'll go away.
If you quit paying them to be homeless they'll go away.
If you quit giving them drugs they'll go away.
Both sides of my family were illegal aliens. My mom was an anchor baby. My grandpa was sent back to Mexico a couple of times. One time my uncle, born here, was getting watched at a neighbor's when an INS raid happened. So my grandma had to go pick him up later with his birth record. When these things happened to them, they knew it was part of the game.
I would imagine being homeless 30 years ago was much the same. If you slept somewhere obvious enough to get caught, be better. The alternative is what we have now and its not good for anyone, homeless or not.
Two critical concerns must be considered when addressing the needs of the homeless and of the broader community:
1. Many of the homeless are mentally or physically ill, or addicted to alcohol or drugs, and need professional psychiatric and medical care. If they are unwilling or unable to seek treatment, it may be necessary to consider requiring care without their consent for their own safety and well-being and that of the general public. (Forced care is a controversial topic that is beyond the scope of this comment but is nonetheless an option.)
2. Some homeless people engage in criminal or other antisocial behavior that poses harm and danger to the general public, so it is not unreasonable for these people to be handled by the justice system.
It is not that homelessness is being criminalized; it is that criminal or other antisocial behavior of some homeless individuals is best dealt with by the legal system.
The challenge is to protect the rights, well-being and safety of homeless individuals while simultaneously protecting society at large from the dangerous and sometimes lethal behavior of some homeless individuals.
The homeless are afraid of shelters due to the risk of crime in them and instead, they're allowed to camp out wherever they choose. Result? The law-abiding taxpayers who are paying for those shelters are afraid to go out into their cities due to the risk of crime in them.
Sounds about what you'd expect from compassionate leftist policies.
Thirty days in county and you are cured of physical drug addiction.
Warm bed, toilet, shower, food. Interesting company. Books, chess, dominoes
Some will go back to drugs, some will stay clean and sober.
Anecdotal observation, rehab cost a lot of money, and sucks.
AA and NA are free and work (if you work it)
Yeah, and if someone is sitting on Justice Alito's lap, and blowing his nose on Justice Alito's tie, he has literally nowhere else to sit, and literally nothing else to blow his nose on. Just wait until he needs to take a shit, Your Honor.
Achilles said...
Cook inadvertently notices the real problem: Democrat policies of early release, no cash bail, and limiting prosecution to Republican political opponents have let violent people turn the streets of New York into a place people shouldn't have to tolerate.
4/23/24, 9:25 AM
Don't forget the prior decades of Democrat policies that emptied the psychiatric wards allowing those undergoing treatment for mental illnesses the freedom to roam the streets at will where they get zero treatment, self medicate with whatever they find, and live under conditions of violence. That set of policies are the grandparents of where we are today with the homeless. There are others but I see this set as the genesis of today's homeless issues.
Cigarettes were childs play to give up compared to Skoal and Copenhagen.
Todd @ 9:25, your thoughts agree with mine. Maybe we've reached a point where the cost of programs to assist the homeless have become too much to bear given the lack of progress. It's time to return to involuntary commitment (with treatment). It won't be less expensive, but voluntary programs are simply not effective for the vast majority of the mentally ill and addicted.
Build reservations in the middle of nowhere and send the homeless there.
Give them basic food and medical care.
They are ruining cities. It’s irresponsible to allow them to drag the rest of society down with them.
Remember, ladies, you can use Skoal as mace, and it's FAR more painful. Just throw it or blow it without chawing first into your assailant's eyes. Legal everywhere.
If you've never chewed or smoked, which I have not, you do have to be careful about even briefly popping some in your mouth, and do not chew or swallow it. Though I suppose power-vomiting all over an assailant could be effective in its own way. Someone unknowingly gave me a piece of nicorette once, before my first required public poetry reading. I thought it was just gum. I was horifically nervous and sick with performance anxiety already. Then my ears started ringing, and I threw up a big Ybor City dinner in front of a big Ybor City crowd.
I was excused from the rest of the required public readings.
Robert Cook -- you might like some of Dalrymple. He was very sympathetic to his young inmates. As I recall -- may be a bit off -- he surveyed them once and found that not a single youth in his prison had ever sat down at a table and had a meal with his parent.
The Supreme Court should be required to read his many essays on homelessness and addiction. Like, tonight.
Robert Cook
And then there are those who have no other options but to camp out in the streets.
"They" didn't have to 60 years ago.
Where did these people come from?
"Where did these people come from?"
They're subsidized. Seriously. People, mostly leftists, make good money "advocating" for the homeless. You can't be a homeless advocate if there aren't any homeless. So there are taxpayer funded programs to deal with the problem.
I wouldn't doubt if they subsidized the drug dealers as well.
”Cook inadvertently notices the real problem: Democrat policies of early release, no cash bail, and limiting prosecution to Republican political opponents have let violent people turn the streets of New York into a place people shouldn't have to tolerate.”
Well, not quite. This isn’t a recent development, not a consequence of recent changes in the law or the loosening of bail requirements, etc. This has been a problem in the NYC homeless shelters for years. At some point in recent decades, mentally ill persons were released from psychiatric custodianship, and the facilities shut down. This led to a surge of homeless persons who were mentally ill. (NY once had many SROs, (Single Room Occupancies), inexpensive rooms where individuals could find affordable short or long term shelter. They are gone.) Many of those people found their way to the shelters. (Others stayed on the street.) There is no commitment nationally to fund facilities where the homeless mentally ill can find shelter along with treatment. There is also no commitment nationally to fund low cost facilities where mentally stable homeless can obtain shelter.
Unless affordable shelter can be found or built to accommodate the vast population of indigents across the country, the problem of what to do with the homeless will go unresolved. I’m sure a number of resident commenters here would happily say, “Throw them all in jail,” but that is inhumane and not a solution. Even working folks living in their own homes can find themselves financially ruined if they lose their jobs and/or incur huge medical debts due to cancer and other serious ailments…and can lose their homes.
Sorry for the late and incomplete comment. I started reading some of the briefs the other day and it looks like this case is even more complicated than it appears. There was an amicus brief from a "gospel" mission in Grant's Pass (I think that was the name of the town). It noted that after the Boise decision, which effectively outlawed these ordinances, they had plenty of bed space. They said that they required lodgers to follow certain rules, some of which were tied to Christian discipleship. There was a separate amicus brief, in support of neither party, arguing that there had been a misapplication of the establishment clause. I only skimmed both and have not read the district Court opinion or order, but it looked like that Court may have ruled that the city ordinance was an unconstitutional establishment since the only shelter was a Christian mission.
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