Democrats argue against criminalization of unhoused people in Supreme Court brief

A host of Democratic legislators have filed an amicus brief with the Supreme Court in opposition to subjecting unhoused people to criminal penalties. 

Led by Rep. Cori Bush (D-Mo.), 18 Democrats argue that arresting or fining people who have no other choice than sleeping outside is unconstitutional and will trap unhoused people in a cycle of poverty.

“Punishing poverty traps people in cycles of debt, unemployment, and hopelessness, increasing the likelihood someone will become chronically homeless, which makes the problem worse for everyone and therefore serves no legitimate penological purpose,” the brief says.

“While the members of Congress signing here agree that the political branches have at least partially failed homeless Americans by turning away from their historical role in ensuring broad access to affordable housing, this Court has never permitted a local government to inflict pain on its own innocent residents for the deliberate purpose of running them off and making them someone else’s burden.”

The brief comes ahead of the case of Johnson v. City of Grants Pass, which would determine if local governments can make it a crime to live outside and unsheltered when adequate shelter is unavailable.

The Court of Appeals for the 9th Circuit previously ruled that local governments are not allowed to fine or arrest people for sleeping outside if no indoor space is available, based on the Eighth Amendment’s protection against cruel and unusual punishment.

But local officials in Grants Pass, Oregon, are seeking the right to arrest and jail unhoused people, citing potential consequences of letting the 9th Circuit’s decision stand, including crime, fires, drug overdoses and deaths.

“(The 9th Circuit Court of Appeals’) decisions are legally wrong and have tied the hands of local governments as they work to address the urgent homelessness crisis,” Theane Evangelis, a lawyer for Grants Pass, said in a statement earlier this year when the Supreme Court agreed to hear the case. “The tragedy is that these decisions are actually harming the very people they purport to protect.” 

Officials in San Francisco and Phoenix, as well as California Gov. Gavin Newsom (D) and 20 Republican state attorneys general backed Grants Pass’s request for the Supreme Court to take the case, saying current law ties their hands.

But the Democratic lawmakers argue in their brief that houselessness began soaring in the 1980s following housing disinvestment that has since worsened. The lawmakers also argue that criminalizing homelessness will disproportionately impact unhoused people who are Black and brown, youth, disabled, elderly, and/or LGBTQ+.

The brief highlights that 37 percent of the adult houseless population is Black, 28 percent is Hispanic, 4 percent is Native American, and 2 percent is Asian. Up to 40 percent of the 4.2 million youth experiencing homelessness identify as LGBTQ+. The brief adds that Black and Hispanic individuals are far more likely to receive citations than white people. 

The lawmakers instead call for investment in solutions dedicated to ending poverty and homelessness for good.

The brief is signed by Sens. Ed Markey (D-Mass.), Bernie Sanders (I-Vt.), and Elizabeth Warren (D-Mass.) and Democratic Reps. Gwen Moore (Wis.), Rashida Tlaib (Mich.), Shri Thanedar (Mich.), Barbara Lee (Calif.), Alexandria Ocasio-Cortez (N.Y.), Nydia Velázquez (N.Y.), André Carson (Ind.), Ayanna Pressley (Mass.), Jamaal Bowman (N.Y.), Pramila Jayapal (Wash.), Sylvia Garcia (Texas), Summer Lee (Pa.), Delia Ramirez (Ill.), Linda Sánchez (Calif.), and Ro Khanna (Calif.).