Author: Roger Valdez

Note: All the cases mentioned are linked at the end of this post.

Last week, the United States Supreme Court issued its decision in the Grants Pass v. Johnson case, an appeal of a lower court decision that deemed the enforcement of camping laws in the Oregon city are cruel and unusual punishment under the Eighth Amendment of the United States Constitution. The Court found for the City of Grants Pass, deciding that enforcing these laws is not cruel and unusual punishment, and homelessness is not a protected status. Predictably, some called this the criminalization of homelessness while others hailed it as a step forward for law and order. What issue did the Court really resolve and what does it mean for local governments and homeless people? The issue of status is significant, but the decision does nothing to change the economics of homeless encampments.

By now, everyone in the United States is familiar with what has come to be known as “an encampment,” a series of improvised shelters usually on public or vacant private land. Many people find these encampments threatening, ugly, and dangerous, even if they are composed of just one or two tents. Others argue that the encampments are necessary because there are no other options and even that allowing them creates a visible presence of a persistent problem; the aggravation created might motivate more support for money for programs or housing.

The Court didn’t resolve this issue. The question resolved last week is narrower; is homelessness an involuntary condition like addiction, and when local laws are created that make a crime of sleeping outside, is enforcement cruel and unusual as defined by the Eighth Amendment. There is no way I can capture the nuances of this argument, but it is important to have at least a rough sketch of the legal issues presented.

The case that started it all was Martin v. Boise, a legal challenge filed by homeless people in Idaho who alleged that ordinance that outlawed camping was unconstitutional because there were not enough shelter spaces. The ruling of the 9^th Circuit Court of Appeals was that, indeed, a law against camping is fine, but unenforceable when people have no other options. In that case, Boise agreed to settle and build more shelter beds.

Later, some homeless people in Grants Pass formed a class, and sued the City for creating a law that essentially made it illegal to camp in any public place, ever. It’s pretty clear from the record that the intention of the City was make things uncomfortable enough for homeless people in Grants Pass that they’d go somewhere else. The law was intentionally designed to keep people moving and unsettled. Fines and jail were threatened if a person was found camping outside. The argument in that appeal was largely based on a case decided by the Court in 1962, Robinson v. California which decided that enforcement of California’s law criminalizing addiction was cruel and unusual by the definitions of the Eight Amendment.

As I implied above, scholars argue over every amendment, and the Eighth has its own vocal constituency. But central to last week’s decision was a rejection of the idea that Robinson briefly established, that addiction is a status, a possibly immutable characteristic. It is critical to note that California’s law explicitly outlawed addiction. I can’t imagine anyone (except Justice Thomas) thinking this makes and logical sense and that punishing a person for being an addict is similar to punishing someone for being depressed, or to harken back to another time, possessed by an evil spirit. Yet, Robinson held that a crime of addiction, like possessing drugs, was still a crime.

Robinson established an idea that if it could be clearly proven that a law targeted a status, it would be a status offense. A subsequent case tried to take it a step further by arguing that when a person violates a law because of their status, to enforce the punishments set by the law would be cruel and unusual. The Powell v. Texas case argued that the defendant in a criminal case of public intoxication had the status of an addict and thus involuntarily violated laws against public drunkenness; to punish Powell would be cruel and unusual given the precedent set by Robinson. However, in Powell, the Court rejected this, and determined that even while a person has a status, typical punishments for violation of the laws violated are neither cruel nor unusual.

This was the question that the City of Grants Pass and many other supporters asked the court to settle; is homelessness a status like addiction and are laws that have the effect of punishing the effects of that status cruel and unusual? The Court felt it didn’t have to deal with Robinson because Grants Pass didn’t outlaw homelessness, just camping at proscribed times and places. And the Court agreed with the City, that if the law itself was not violative of Robinson, and that the essence of the Eighth Amendment is about punishment, not the law designating a crime, then the 9^th Circuit was wrong, and Grants Pass is free to make and enforce whatever law it likes about camping.

This decision does nothing to solve the complex problem of people living in improvised housing nor does it hand local jurisdictions any tools make homeless people disappear. Think about it. Now Grants Pass, or any other city, can spend a substantial portion of its budget chasing people around, fining them, even though they can’t pay, then buying them jail cells. This policy neither ends homelessness and its attendant aggravation for people who want it to go away, but it simply adds more costs and risks to the government and community. In areas where there are shelters and people don’t use them, people living in improvised housing are sending a clear message: the shelter system doesn’t work, I’d rather take my chances with other people like myself against the juggernaut of enforcement.

The marginal rate of substitution is an economic term that sounds complicated, and it is. There’s even a formula. But the idea is simple, rational actors in a market will make choices about things they want and don’t want, and when they can’t get what they want or need, they will choose substitutes. If shelters offered a real solution to people dealing with addition and mental illness living in tents and other improvised housing, people would go to them. As I’ve pointed out before, survival instincts, particularly banding together in a common cause, are the building blocks of civilization. We need a housing system that doesn’t require transactions or performance to get help and shelter, but a system that meets people where they are today.

I’m pleased with the resolution of this case. Had the court established homelessness as a status like addiction, that decision would have created zero dollars, and zero community buy-in for creating solutions. Establishment of a status without resources is a hollow promise, just look at the Fair Housing Act, passed 50 years ago to end housing discrimination. Today, the gap between White and Black homeownership is wider than it was then. And giving governments the ability to “crack down” and “enforce the law” just means more costs, more suffering, and no practical results.

The decision forces us back to reality. How do we create a continuum of shelter and housing solutions that support and expand human potential for organizing into communities and economies of accessible scale. Can we create improvised solutions that may not be legal according to the building and zoning code, but are safe and healthy? Can we tolerate a world in which a code that was designed to ensure health and safety, now prevents it, forcing improvised shelter to meet unreachable standards? How much do we demand of people already traumatized and suffering, living in a tent in a vacant lot, to receive the benefits of safe and healthy shelter? The Court’s decision doesn’t answer these questions. That is up to us.

Martin v. Boise
Grants Pass v. Johnson (9^th Circuit Decision)
Grants Pass v. Johnson (Petitioner Brief)
Grants Pass v. Johnson (Respondent Brief)
Grants Pass v. Johnson (SCOTUS Decision)
Robinson v. California
Powell v. Texas

What follows is not research or a specific policy proposal, although I have made them here, and here, and here. Homelessness is complicated and, I think, difficult to define because people living out of conventional housing have a myriad of reasons why they do. What does “conservative” mean. That too is not easy to define, but I do here and in the following I mean neither social conservatism, nor libertarian but economic liberalism as described by William Grampp in his multivolume assessment title Economic Liberalism: “In a liberal economy the choice of how to make decisions is not necessarily a choice between government and the market and it is not even a choice among different combinations of government and market. Between the two there are many forms of voluntary collective action such as that of cooperatives, philanthropies, nonprofit organizations, limited-profit firms, quasi-public or quasi-private organizations, and unions. In groups of this kind, individuals can change the composition of the national output, the way it is produced, and the way it is distributed.”

During my recent work in Albuquerque with a community developing a community land trust, an encampment of homeless people formed. That community was supported by a groundswell of support among housed people in the neighborhood, arguing that while the encampment was illegal and on private property, the people living there should be respected and supported and only removed to a viable shelter option. I think there is a strong conservative argument to see these sorts of spontaneous encampments as part of the solution to mental health and addiction issues creating what today we call the “homeless crisis.”

Encampments with improvised shelter represent, perhaps, the best way out of the problem of encampments themselves. When these associations of people form, it is a demonstration of spontaneous order. If, as Hobbes suggests, nature is a war of all against all, certainly we can see that encampments are an effort to patch together a social contract, an effort to seek governance and sovereignty.

Conservative language revolves around, “leaving people alone,” and living on the streets is truly being alone in a state of nature. If people living in this state band together, aren’t they demonstrating in front of our eyes, the assembly of the basic building blocks of civil society?

My late experience with an encampment was validation that people when faced with the desperation of solitude and the various dangers of the street, will combine quite spontaneously for mutual protection and the advantages we take for granted like being able to leave or worldly possessions without worrying they’ll be stolen. Remember, these are people living outside the rules of society, autonomous, seeking to hand over some of that autonomy for safety and predictability.

The encampment I experienced began to demonstrate the most sophisticated behavior of any society: NIMBYism. Because the safety and solidarity of the camp was attractive, more people arrived, frustrating those that arrived first and proving one of the basic laws of economics, supply and demand, and of real estate, location, location, location. And Yogi Berra; no one goes there anymore, it’s too crowded.

Homelessness or living on the streets is not liminality as described by Victor Turner in his essay Liminality and Communitas, a departure from social structure with the intention of gaining experience and knowledge from a less ordered experience of reality and an eventual return, earning credibility and even promotion within the social order. Instead, those who fail to function in the social order exit that order into chaos, where the marginal rates of substitution favor drug use, crime, and self-destruction. As one member of the community said, “You throw way our things and our tents and wonder why we steal things and tents.”

The rinse and repeat cycle of “sweeping” encampments has produced nothing but a cat and mouse game. It is understandable that the apparent chaos and shambles of an encampment seems to represent disorder, yet it is anything but that. Instead, encampments are a demonstration of human capacity to survive. Ironically, because the diffusion of street living becomes concentrated and visible, the powers that be must stamp it out, not recognizing that every single bad thing that could happen, in an encampment happens every day in corners, alleyways, and parking lots, diffused and unseen. Support of the instinct to create order out of chaos with effective and consistent case management could create a path back into functioning within the dominate social order.

It is understandable that the apparent chaos and shambles of an encampment seems to represent disorder, yet it is anything but that. Instead, encampments are a demonstration of human capacity to survive.

Homelessness is not a simply a housing problem; it is a mental health crisis. Mental illness is endemic in American society. It is like what we call the “common cold” or the flu. When people have a compromised immune system or comorbidities, these endemic diseases can kill or disable. We need to think of what we typically call “homelessness” like this. My anxiety and depression are managed with a variety of techniques most of us use, ranging from behaviors like exercise to drugs like alcohol or antidepressants. Mental illness is not a glitch, but a feature of modern American life; the fact that we treat it as outside the norm contributes to its virulence when untreated or treated ineffectively. Handing someone living in the streets an apartment key doesn’t substantively address trauma, addiction, and mental illness.

What makes the difference between a person who is living under a bridge surrounded by foraged and hoarded items and someone like you is the quantity and quality of risk and protective factors. More protective factors like an income, a family, insurance, and a car will mean mental health issues won’t likely lead quickly to a series of crises that lead to taking powerful drugs on the street.

We need to change how we think about mental illness. Until we do, we’re going to have many dislocated people on our streets. We have a pandemic of acute mental health issues aggravated by drugs and poverty. Building more units won’t solve this and neither is criminalizing the outcomes of the illness nor, in the case of encampments, a demonstrable effort by suffering people of responding to their own pain through collaboration and self-government.

Friedrich Hayek in The Use of Knowledge in Society prescribes a solution to change and complexity that isn’t a prescription at all, but a stance of humility in the face of what we cannot know, affirming that “the ultimate decisions must be left to the people who are familiar with these circumstances, who know directly of the relevant changes and of the resources immediately available to meet them. We cannot expect that this problem will be solved by first communicating all this knowledge to a central board which, after integrating all knowledge, issues its orders.”

Who can speak to life on the streets? People on the streets. When they resist shelter options that don’t allow pets or partners or are dangerous and unhealthy, they are delivering the data on the marginal rates of substitution that guide their choices. When they choose a collaborative encampment, they have expressed the free will of the market, giving up some autonomy and facing the risk of being swept in exchange for some security and predictability.

I’ll quote from Jacob Viner’s review of Hayek’s The Constitution of Liberty,

“This important and challenging book presents a learned and powerfully argued brief on behalf of the propositions, that, in general, the maximum possible amount of “liberty” or of “freedom” from “coercion” is both practicable and urgently to be desired, and that the encroachments on freedom which prevail even in the western world are a major evil, in their actual and prospective consequences, if not in themselves.”

Yet, order is the central ingredient of a functioning social order. People living in improvised housing and forming communities are often strong people who could, given the protective factors those in the median enjoy, thrive. But aren’t we rewarding vagrancy by allowing encampments and providing case management and more secure shelter options? Maybe. But what w we rewarding, really? Genuine human effort to survive.

I don’t have any illusions that patient engagement with people on the streets who form communities will lead to a wholesale end to people living in the streets. But regardless of the decision on the Johnson v. Grants Pass case, we simply must change our approach. We shouldn’t facilitate addiction or service it. But criminalizing spontaneity makes no rational sense, whether aimed at developers trying to meet demand for a housing or people on the street banding together to survive.