This week, City of Grants Pass, Oregon v. Johnson was circulated to the Justices of the Supreme Court for conference. As covered previously on this blog, Johnson is the latest in a series of decisions from the 9th Circuit Court of Appeals to interpret the 8th Amendment’s prohibition against “cruel and unusual punishment” to apply to anti-camping, vagrancy, and other anti-homeless laws often used by municipalities to prosecute homeless people for their lack of indoor shelter. The Supreme Court will now review the case, examine the briefs submitted by counsel, and decide whether to take up the case, commonly called a grant of certiorari.
Grants of certiorari only require four of the nine justices to want to take up the case. Traditionally, the Court only takes up a fraction of the cases submitted before it, both due to practical concerns about caseload, as well as out of respect for federalist principles of state courts controlling state law. Often, the Court will step in to resolve a difference of opinion between two or more Circuits, commonly known as a “circuit split”. The gravity or importance of a case also has strong bearing on whether cert will be granted. However, ultimately the Court has complete discretion to grant or deny a writ of certiorari.
In Johnson, and the cases preceding it, the 9th Circuit that, with some exceptions, criminalizing homelessness in the absence of sufficient public housing or shelter was a violation of the 8th Amendment. There is yet to be a true circuit split on this issue – some state courts have cited Martin or Johnson approvingly or disapprovingly, but no 8th Amendment/homelessness case has been appealed to a federal Circuit Court of Appeals, let alone been decided, much less been decided in a way that disagrees with the 9th Circuit precedent. As a result, one would hope that the Justices, per longstanding practice absent extenuating circumstances, would wait to resolve this question of law until the appellate courts have true disagreement.
Unusually but not surprisingly, the criminalization of poverty and homelessness is an issue where both Republican and Democratic mayors and county supervisors find common ground – the parties and amici pushing for the end of the 9th Circuit’s 8th Amendment jurisprudence on homelessness hail from a diverse array of partisan backgrounds. Municipalities remain committed to addressing visible poverty not by diverting resources to meet peoples’ basic needs, but rather by kicking the can down the road and using the veneer of law enforcement and “tough love” to say they’re trying their best.
CCWRO Homelessness News and Notes 