On June 28, the Supreme Court ruled that subjecting people experiencing homelessness to penalties for sleeping outdoors is not “cruel and unusual” punishment. The Supreme Court’s decision upholds a local ban on outdoor sleeping in public spaces by people without shelter, even when no adequate shelter resources are provided.

A lower court had first declared it cruel and unusual for state and local governments to enact penalties for sleeping outdoors when no shelter beds are available—but the Supreme Court disagreed, stating that each locality should themselves judge the appropriateness of policies that criminalize the status of being homeless.

The ruling was announced just a day after a Congressional Subcommittee advanced a 7.3% cut to funding levels for the Department of Housing and Urban Development (HUD) for the coming fiscal year.

LeadingAge is deeply concerned with the impacts of the decision, and we call on local governments to utilize proven homelessness interventions rather than criminalization. Older adult homelessness is the fastest growing type of homelessness in America, and our country’s older adults are in urgent need of housing resources.

“Homelessness is not a crime.”

The court case originated in Grants Pass, a small town in Oregon with vastly inadequate homeless shelter resources, which led to unsheltered homelessness. The town responded by enacting a ban on sleeping in parks and on public property, as well as on using materials like blankets to sleep outdoors. People in violation of the ban faced hundreds of dollars in fines, as well as jail time in repeat instances.

In its ruling, the court was split 6-3 along ideological lines. However, conservative Justice Neil Gorsuch argued that the case had a “poor foundation” by invoking the cruel and unusual punishments clause under the Eighth Amendment of the U.S. Constitution; the “cruel and unusual” clause focuses on the type of punishment a government can impose in response to a criminal conviction, not on the question of criminalization in the first place.

In her dissent for the minority, Justice Sonia Sotomayor emphasized the need to protect society’s most vulnerable people instead of “punishing people for being homeless,” and said that “sleeping is a biological necessity, not a crime;” similarly, the ACLU wrote that “we cannot arrest our way out of homelessness.” HUD Acting Secretary Adrianne Todman, in recent testimony to a Congressional Committee, said: “homelessness is not a crime.”

Housing-First Approach

LeadingAge and our partners are deeply concerned with the ramifications of the Supreme Court ruling. Ann Olivia, the CEO of the National Alliance to End Homelessness, stated: “At a time when elected officials need to be focused on long-term, sustainable solutions that are grounded in evidence – including funding the affordable housing and supportive services that their constituents need – this ruling allows leaders to shift the burden to law enforcement. This tactic has consistently failed to reduce homelessness in the past, and it will assuredly fail to reduce homelessness in the future.”

LeadingAge will continue to advocate in Congress for crisis-level affordable housing resources and homelessness interventions. We also urge cities and localities to reconsider the harmful impacts of adopting similar penalties and instead urge a housing-first approach to addressing homelessness.