Major Win on Homeless Encampments

Homelessness is a major problem, and it is a complex one. People become homeless for different reasons, and they have different obstacles to returning to the ability of obtaining their own shelter. Two of the most common are mental illness and addiction. These two problems are particularly difficult, as the conditions themselves may block the person’s willingness to accept and participate in the treatment needed to fix the problem. Sometimes an arrest is exactly what a person needs to provide the needed motivation. Fifty-six years ago, Justice Thurgood Marshall recognized similar considerations when he wrote the plurality opinion in Powell v. Texas. That opinion rejected the notion that the Eighth Amendment prohibited punishing an alcoholic for being drunk in public because the conduct was an involuntary result of his status. Such a constitutional mandate was too simplistic a way of dealing with a complex and difficult social problem.

Even so, the Ninth Circuit took the step that the Powell plurality rejected with regard to laws penalizing camping on public property as applied to the homeless. Today, the Supreme Court reversed that decision in City of Grants Pass v. Johnson. Justice Gorsuch wrote the opinion of the Court. Three Justices dissented. CJLF filed an amicus curiae brief in support of the city.

A key legal issue in the case involved the status and reach of an even earlier case, Robinson v. California. In that case, the Court declared a California statute unconstitutional because it made criminal the status of being addicted to drugs as opposed to the act of possessing or using an illegal drug. Oddly, the Court invoked the Eighth Amendment for this proposition, an argument only briefly mentioned by Robinson, rather than the Due Process Clause, which was Robinson’s main argument.

Does Robinson extend beyond statutes which criminalize status as such to include statutes applied to persons who lack the free will to refrain from violating them? That was the question in Powell v. Texas, noted above. The plurality opinion of four Justices said no. A dissent of four said yes. The fifth, Justice White, said he would agree with the dissent if that question were presented, but it wasn’t in this case because Powell did not show that he had no choice about being in public during his binge.

So what is the precedent in Powell? Is it the plurality opinion? Can lower courts count noses among the dissenting and concurring justices to piece together a precedent? This raises the difficult problem of interpreting fractured precedents, and the Court gave only a little additional guidance today.

As argued in CJLF’s brief at pages 18-20, the problem becomes considerably easier when a plurality opinion has been accepted by a later majority. That is the case with Powell, where the plurality opinion has been treated as precedent in several cases, including Kahler v. Kansas, 589 U.S. 271 (2020). Today’s opinion is consistent with that approach. See footnote 6 on page 23 and pages 25-26.

And what does the author of the Kahler decision have to say about this? Justice Kagan joins Justice Sotomayor’s dissent, which only mentions Kahler once, for a different point, and calls the Powell argument a “straw man,” even though it was the mainstay of the decision being reviewed.

Today’s decision is an important victory in two ways. As a matter of constitutional law, it contains and minimizes a decision that was dead flat wrong in its interpretation of the Eighth Amendment, even though the result might have been reached on another theory. As a practical matter, it lifts a litigation barrier that has seriously hampered efforts to find humane and workable solutions to one of society’s most difficult current problems.