July 8, 2024
MEDIA CONTACT: July 8, 2024, 11:30am

HONOLULU, HI – On June 28, 2024, the U.S. Supreme Court ruled that the cruel and unusual punishment clause of the Eighth Amendment does not prohibit cities from punishing unhoused people for sleeping in public, even if they have nowhere else to go.

The case, Grants Pass v. Johnson, originated with the passage of municipal ordinances that barred people from sleeping outside in public using a blanket, pillow, or even a cardboard sheet to lie on. In Grants Pass, Oregon, unhoused people who violated those ordinances could be saddled with hundreds of dollars in fines and even jail time. The Ninth Circuit Court of Appeals held that enforcing these ordinances when the city lacked adequate shelter spaces for all of the unhoused people living in the city constituted cruel and unusual punishment under the Eighth Amendment

of the U.S. Constitution. The U.S. Supreme Court disagreed under the theory that punishing a person for sleeping in public, even if they have no other option, punishes conduct, not status, and so Robinson v. California, which established that it is cruel and unusual to criminalize a person’s status, does not apply.

“It is hard to imagine a starker example of excessive punishment than fining and jailing a person for the basic human act of sleeping,” said Scout Katovich, staff attorney in the Trone Center for Justice and Equality. “As Justice Sotomayor’s dissent powerfully acknowledged, sleep is a biological necessity, not a crime. We cannot arrest our way out of homelessness, and we will continue litigating against cities that are emboldened by this decision to treat unhoused people as criminals.”

The American Civil Liberties Union (“ACLU”) submitted, and the ACLU of Hawai‘i signed onto, a friend-of-the-court brief arguing that punishing unhoused people for sleeping outside when they lack access to shelter violates the Eighth Amendment protection against cruel and unusual punishment under the U.S. Constitution. As the brief highlights, the original intent and meaning of the Eighth Amendment and its application (in more than a century of Supreme Court cases) make clear that the government cannot impose punishment that is disproportionate to the crime.

The brief goes on to argue that Robinson v. California is consistent with this proportionality principle. The brief stated that when applying the same proportionality principle, punishing

unhoused people for sleeping in public when they have no other choice violates the Eighth Amendment.

“The Supreme Court’s ruling in Grants Pass opens the door for cities to ticket, fine, and jail people simply for trying to survive while poor,” said Wookie Kim, Legal Director for the ACLU of Hawai‘i. “But just because the court says they can, does not mean cities and counties in Hawai‘i should. Local efforts to criminalize the unhoused may still violate the Hawai’i Constitution. Hawai‘i Courts have a long history of providing broader protections under our Hawai‘i Constitution. Just last spring, the Hawai‘i Supreme Court ruled in Davis v. Bissen that homeless individuals have a constitutionally recognized property interest in their possessions and

are entitled to a fair hearing before the state can seize and destroy their property. Moreover, it’s important to know that sweeps and enforcement of other actions, when applied to homeless people with no other options, may still violate other rights and be challengeable on other legal grounds under our Hawai‘i Constitution.”

“The Grants Pass decision, which legalizes the punishment of our unhoused neighbors for sleeping in public spaces, is a bleak and cruel decision that will embolden some cities to oppress those who are simply trying to survive while living unhoused,” said Salmah Rizvi, Executive Director for the ACLU of Hawai‘i. “Despite this incredibly alarming ruling, we urge community leaders to commit to forging solutions in response to our affordable housing crisis in Hawai‘i and to treat our unhoused neighbors with dignity and respect. The ACLU of Hawai‘i is determined to work with governmental and community stakeholders to implement effective strategies to address houselessness and improve lives. And despite the Supreme Court’s decision, we will continue to fight for the constitutional rights of our most vulnerable in State Court and the State Legislature. As federal law is continually used to thwart the public interest, we will use

legal, advocacy, and policy strategies to ensure that the civil rights of Hawai‘i’s residents are protected.”

“Every person in Hawai‘i deserves a safe and dignified place to live,” said Carrie Ann Shirota, Policy Director at ACLU of Hawai‘i. “The U.S. Supreme Court’s terrible ruling continues in the shameful tradition of choosing to remove unhoused people from public view rather than provide our community members with the resources they actually need: affordable housing and support services. Our state and local leaders still have a choice. They can either continue attempting – and failing – to punish people out of poverty, or they can address the root causes of houselessness by increasing access to housing, health care, education, and jobs.”