U.S. Supreme Court case could see the homeless housed in jails

Mark Jenkins

When it comes to affording housing, more and more Americans are living on the edge of the abyss.

A recent report by Redfin notes that half of U.S. homeowners and renters sometimes, regularly, or greatly struggle to make their house payments. More than a third took no or fewer vacations. And more than a fifth skipped meals and/or worked overtime in order to pay for monthly housing costs.

To make matters worse, even if Americans could afford such costs, there simply aren’t enough houses to go around. At the end of 2023, America was short upwards of 3.2 million homes, according to census data analyzed by Hines, a global real estate developer. And those houses and apartments that are being built are not easily afforded.

It is amid such a shortage of affordable housing that the U.S. Supreme Court on Monday will hear oral arguments in arguably the most significant case about the rights of unhoused people to come before the court in more than 40 years. At issue in City of Grants Pass, Oregon v. Johnson is whether cities are allowed to punish people for using what they are classifying as “camping equipment” — pillows, sleeping bags, even cardboard boxes — as shelter for sleeping outside even when there are no available options for safe shelter.

The city council makes no pretense of their intent. Their president is on record as saying, “the point is to make it uncomfortable enough for them in our city so they will want to move on down the road.

Like many small towns, Grants Pass has no homeless shelters qualified by the Department of Housing and Urban Development. The city relies solely upon the Gospel Rescue Mission to fill that need. But the mission has strict requirements for those who would stay there. Residents “must dress and behave according to their birth gender;” work six hours a day, six days a week; attend mandatory Bible studies every morning and evening; and pay $100 monthly rent. And if one is too sick or disabled to work, there is simply “no room at the inn.”

“Instead of responding to an increase in homelessness with compassion and housing services,” said Jesse Rabinowitz of the National Homelessness Law Center (NHLC), “the city of Grants Pass decided to give people tickets of around $350 for camping outside.” Rabinowitz continued, “This is literally about if people can be punished for using something like a blanket a cardboard box or a pillow when they’re sleeping outside.”

In 2019, in the case of Boise v. Martin, the Ninth Circuit court held that enforcing criminal restrictions on public camping when there is no “access to adequate temporary shelter” violates the Eighth Amendment’s Cruel and Unusual Punishments clause. It is this ruling that Grants Pass is challenging. Should the Supreme Court rule in Grants Pass’s favor and overturn Boise v. Martin, it will, in effect, criminalize homelessness during a growing shortage of housing. Freddie Mac recently estimated that, as of the fourth quarter of 2020, the United States had a housing supply deficit of 3.8 million units. This means that, if every available housing unit were filled tonight, millions of Americans would still find themselves sleeping out of doors. And, if Grants Pass were to have its way, they would be sleeping without pillows or blankets.

All too often, when confronted with the facts of this case, the response is to assume that unhoused persons are living on the streets by choice or as the result of a choice to become addicted to drugs or alcohol. Little regard is given to the systematic dismantling of the social safety net that has occurred over the last fifty years.

When I was 10 years old, in 1968, my clergyman father enrolled in a summer training program at the Chicago Urban Training Center. Twelve major American denominations established this center to train clergy, seminarians, and laity interested in inner city ministry. Among the mentors he met there was Kwame Ture, then known as Stokely Carmichael, one of the most active, committed, and engaging social organizers of the day.

On the first week of the program, he and others were subjected to something called, “the Plunge.” They were each given five dollars in change and sent out to live on the streets. In order to fit in, my father wore an old army overcoat that had been dyed. He spent his first night in a flophouse. The second in an all-night movie theater. After that, he was out of money. No food. And nowhere to stay.

So he signed on at a local business called “Rent-a-Man.” There he got a job unloading box cars making $11.25 for the day. At the end of the day, when he was paid, he noted that social security had been withheld even though the company had not bothered to get his number. It was a tax that would clearly never be paid. And to make things worse, he was paid not in cash but in a voucher. Like the 19th century Welsh coal miners who were paid with vouchers from the company store, workers at “Rent-a-Man” were paid with a voucher that could only be cashed at the bar across the street.

“You get a cycle going there,” my father later said. “You go to the bar. You cash your check. You drink up most of your check. And then the next day you’re without funds. You’ve got to go back and work again for a day.”

Life on the streets is not what it seems. Societal structures – structures purposefully designed to do what they do – conspire to keep people homeless and in poverty. It is, in essence, a modern-day indentured servitude. Only the indentureship is structured in such a way as to trap people permanently in their circumstance. Perhaps saying it’s a conspiracy seems over the top. But it was no accident that those alcoholic workers were sent to the bar to get paid.

“We need to be very clear,” says Rabinowitz of the NHLC, “that there is a well-funded, billionaire-backed, national campaign to criminalize homelessness in cities and states across the country.”

Regardless of what so many think, the vast majority of people who live on the streets are not there by choice. They are there because they lack the resources, financial and otherwise, to find shelter. They are there because there simply isn’t enough housing or shelters available.

If the court should side with Grants Pass, as it seems likely, we will be housing the homeless in jails and prisons. But even should they rule that jailing or fining the homeless for using a pillow when no safe shelter is available does indeed constitute cruel and unusual punishment, that will not solve the problem. Until this country gets serious about providing its citizens with a living wage and affordable housing, none of this is going to go away.


Mark Jenkins retired in 2015 after 30 years of parish ministry in the Episcopal Church and 11 years teaching at Wayne State University. Since then he has spent his days reading, writing, cooking, and publishing the occasional essay.

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