Edited by Amelia Cantwell and Rishi Chandra
“Sleep is a biological necessity, not a crime.” With those words, Justice Sonia Sotomayor opened her dissent in City of Grants Pass v. Johnson, a 2024 Supreme Court case about whether cities may punish people for sleeping outside when they have nowhere else to go. Her sentence was simple, but it captured the moral tension at the center of the case: whether the law can turn a basic human need into evidence of a crime.
At the center of the Grants Pass case is whether a city can punish people for sleeping outside when they have nowhere else to turn. Grants Pass, Oregon, had ordinances that prohibited camping or sleeping in public spaces with basic materials such as blankets, bedding, or even cardboard. Violations could lead to fines and eventually criminal penalties. For the city’s unhoused population, this meant that the act of making oneself even a marginal amount more comfortable while attempting to rest outside constituted a crime.
The plaintiffs argued that these ordinances violated the Eighth Amendment’s ban on cruel and unusual punishment because they effectively criminalized the involuntary status of homelessness. Their argument built on earlier cases such as Robinson v. California, where the Supreme Court held that the government cannot punish a person simply for being addicted to (and not simply taking) narcotics. If a person has no available shelter, they argued, then sleeping outside is not truly voluntary conduct with mens rea, the required ‘guilty mind’ for someone who committed a crime. It is an unavoidable consequence of being homeless. But the Supreme Court’s majority rejected that reasoning, holding that the ordinances punished the conduct of camping in public, not the status of being homeless.
Justice Neil Gorsuch’s majority opinion made three primary moves. First, it framed the Eighth Amendment as a limit on the kinds of punishments the government may impose following a conviction, not on what conduct the government may criminalize in the first place. Second, it treated Robinson v. California as a narrow exception that applies only when the law punishes a “mere status,” not when it prohibits an act. Third, relying heavily on Powell v. Texas, the majority refused to extend Robinson to conduct that may be involuntary or inseparable from a person’s condition. In Powell, the Court had upheld a conviction for public intoxication even though the defendant argued that his alcoholism made his conduct involuntary. For the Grants Pass majority, sleeping or camping in public with bedding was still conduct, even if homelessness made that conduct difficult or impossible to avoid.
In a 6-3 decision, Justice Neil Gorsuch’s majority opinion in Grants Pass held that enforcing generally applicable public-camping laws does not violate the Eighth Amendment’s ban on cruel and unusual punishment. The majority reasoned that the Eighth Amendment regulates the “method or kind of punishment” imposed after conviction, not what conduct a city may criminalize in the first place. In the majority’s view, a public-camping law applies equally to a homeless person, a backpacker, or a protester sleeping on public land. Because the law was framed as a general regulation of conduct, the court didn’t apply Robinson v. California. That distinction is at the heart of Grants Pass. A backpacker, a protester, or an unhoused person could all violate the same ordinance. To the majority, that formal neutrality mattered, despite the practical outcomes of the language.
Before Grants Pass, the key rule in much of the western United States was set by Martin v. Boise, a case in the Ninth Circuit. Under that case, cities could not enforce public-camping bans against homeless individuals when there were more unhoused people than practically available shelter beds. The rule did not require cities to solve homelessness overnight, but recognized that punishing someone for sleeping outside when they lack indoor space is criminalizing their homelessness.
That is where the majority’s logic is especially dangerous. A person with a home who is merely backpacking can comply with an anti-camping ordinance by going home, on the rare occasion these ordinances are even enforced against them. A person without shelter cannot. The same law may appear neutral on paper while operating almost exclusively against one population in practice. Justice Sotomayor understood this in her dissent and acknowledged that unhoused citizens of Grants Pass were only left with one lawful option: leave the city.
The key difference between the majority and the dissent is truly a difference between a legal hypothetical and individuals’ lived reality. The majority asked whether the ordinance used the word “homeless.” The dissent asked who the ordinance actually affected. That difference matters because homelessness is not a marginal or edge problem. The Department of Housing and Urban Development (HUD) reported that on a single night in 2024, 771,480 people experienced homelessness in the United States, the highest number ever recorded in the federal count at that time. Overall, homelessness increased by 18 percent from 2023 to 2024. The effects of Grants Pass rippled outside of Oregon’s state lines and contributed to a national housing and homelessness crisis.
The effects came quickly. By December 2024, NPR reported that more than 100 places across the country had banned sleeping outside after the ruling, even when people had nowhere else to go. In the year after Grants Pass, the ACLU’s tracker found over 320 bills introduced in cities across the nation criminalizing unhoused people, with nearly 220 passing. In California, a CalMatters analysis found that homelessness-related arrests and citations rose in multiple cities after the ruling, including a 500 percent increase in San Francisco illegal-lodging arrests and citations and a 68 percent increase in Los Angeles homelessness-related arrests.
These numbers reveal a key harm of Grants Pass. Fines do not create housing, and jail time doesn’t offer treatment or support. Arrest records make it harder to find work, qualify for housing, or otherwise stabilize one’s life. The law may clear a sidewalk for a day, but it more often pushes a person into another park, alley, or more dangerous location.
In May of 2023, a Richmond, Virginia woman known as Ms. Linda died outside an abandoned church, one block away from a homeless shelter that the city had closed the month before. Local television station WTVR reported that her official cause of death was unknown and that police found nothing suspicious, but advocates who knew her said she had been worn down by the daily struggles of homelessness. At the time, Richmond had closed its seasonal weather shelters with no permanent year-round shelter in place. Richmond’s municipal code also makes it unlawful to “camp, tent, encamp, or quarter” on public grounds, parks, and similar public spaces. This combination of insufficient shelter options and entrenched laws that restrict public sleeping reveals the danger posed by the Supreme Court’s ruling in Grants Pass.
Another important harm is a violation of the Eighth Amendment. The majority’s interpretation is too narrow because it treats the punishment and the criminalized condition as separate when, in this context, they are inseparable. Although public encampment is not the same sort of “mere status” as found in Robinson, it is glaringly obvious that it is inextricable from the “mere status” of homelessness. The Eighth Amendment has long been understood as a protection that evolves with “the standards of decency that mark the progress of a maturing society.” Robinson began an evolution towards more humane punishment practices, and the majority of Grants Pass halted the progress of a maturing society that has guided Eighth Amendment jurisprudence to date.
A third harm is its political implications. The majority repeatedly emphasized that homelessness policy should be left to state and local governments, not federal judges. There is some truth in that, as courts cannot build shelters, fund housing, or run outreach programs. States also possess police powers to protect public health, safety, and welfare, and cities need authority to manage sidewalks, parks, sanitation, and public order. But police powers are not unlimited, and constitutional rights exist precisely because majorities and local governments can sometimes fail to protect the natural rights and freedoms of the American people. When a city lacks adequate shelter and then punishes people for sleeping outside, the constitutional question is not whether judges should run homelessness policy but whether they may punish people for involuntary survival actions. Federal constitutional limits do not and should not disappear because a problem is difficult, extends to localities, or is politically charged.
Homelessness policy generally belongs to states and localities, but punishment is still constrained by the Constitution. Recognizing an Eighth Amendment limit here would not make federal courts the nation’s new housing department, but simply offer a type of constitutional floor. Cities may regulate public spaces and address genuine safety threats, but they may not impose fines or jail time on citizens for sleeping outside when no shelter is available. This understanding respects local authority while still preserving the Constitution’s role as a shield against cruel punishment.
Where are we headed? The answer depends on whether governments treat Grants Pass as a floor or an invitation. The decision does not require cities to punish homelessness. It simply says the Eighth Amendment, as interpreted by this Court, does not stop them from doing so. Some jurisdictions may still choose housing-first strategies, expanded shelter capacity, outreach, and supportive services. Others are already choosing sweeps, fines, and arrests. Federal policy has also moved toward enforcement: a July 2025 White House order directed agencies to prioritize grants to jurisdictions enforcing prohibitions on urban camping, loitering, and squatting, while also encouraging the expansion of civil commitment policies. That makes the moral question even sharper. If sleep is unavoidable and shelter is unavailable, then punishment is not a neutral tool of public order.
Ms. Linda’s death should be remembered in that light. Her story does not prove that one ordinance alone killed her. The available reporting does not establish that. But her death does show what happens when a city closes shelter doors and then limits where unsheltered people may exist. The law may call it camping. The Court may call it conduct. Truly, though, this is about survival.
City of Grants Pass v. Johnson is harmful not because it forces cities to be cruel, but because it permits them to mistake cruelty for governance. It allows the government to punish the visible symptoms of homelessness while avoiding the harder work of addressing its causes. And in doing so, it turns the Eighth Amendment away from the people who most need protection: those whose poverty leaves them exposed not only to the weather, but to the power of the state.