CAN MR ROBINSON SAVE AMERICA'S HOMELESS?

According to the U.S. Department of Housing and Urban Development, approximately 653,100 people experienced homelessness in America on any single night in 2023, representing a 12% increase from the previous year and, tragically, the highest-ever reported level. Soaring rents coupled with the phasing out of coronavirus pandemic assistance have put housing out of reach for many ordinary Americans. From coast to coast, localities are grappling with a seemingly intractable problem. Contrary to popular misconceptions, the plight of homelessness is not just an issue facing the nation’s poorer corners. Far from it. Many of America’s most affluent cities, from New York to Los Angeles, bear a disproportionate share of the nation’s unhoused population. California, America’s wealthiest state, has the highest number of homeless people. This is no accident, as an increasing number of individuals are simply priced out of the Golden State’s notoriously expensive rental market. 

The high cost of housing has profound consequences, including labour misallocation, exacerbated wealth disparities, and decreased demand for consumer goods, which in turn has macroeconomic ramifications. Yet, the most unforgiving negative externality is homelessness. Granted, some people fall into homelessness due to severe mental illness or physical disabilities, and helping them requires compassionate and tailored solutions to their health problems. However, as a recent Pew Charitable Trusts report explains, the main driver of the uptick in homelessness has been high housing costs. The bottom line is: “homelessness is high in urban areas where rents are high, and homelessness rises when rents rise.” 

Furthermore, the biggest artificial cause of inflated housing prices is exclusionary zoning; it chokes the housing supply through a labyrinth of building restrictions. One of the most widespread practices across the country is single-family zoning, which prohibits the construction of multifamily housing – an option that would most significantly benefit working-class and lower-middle class people. Even in cases where zoning regulations do not outright prohibit specific constructions, their complex requirements result in unnecessary delays and additional cost inflation. A 2005 study in The Journal of Law & Economics found that the market value of condominiums in Manhattan was 50% higher due to burdensome zoning regulations; a 2021 study by the National Bureau of Economic Research found the highest artificial property inflation in San Francisco: more than $400,000 per house. As Richard Kahlenberg — an expert on zoning issues — has written in The New York Times: “it is incomprehensible that ubiquitous government zoning policies would be permitted to make the housing affordability crisis worse by driving prices unnaturally high.” Yet, that is the reality of the situation, in blue and red cities, across the United States. 

The origins of zoning restrictions can be largely traced to the odious practices of racial and ethnic exclusion. In his book, The Color of Law: A Forgotten History of How Our Government Segregated America, Richard Rothstein – a leading authority on housing policy – meticulously outlines how local and state zoning policies, along with federal housing policy, were engineered with a laser-like focus on segregation. For example, the 1919 zoning laws in St Louis were crafted to prevent Black families from moving into white neighbourhoods. The city’s zoning commission would alter an area’s designation from residential to industrial if it saw an influx of Black families into particular neighbourhoods. St Louis’s first full-time planning engineer, Harland Bartholomew, articulated that the aim of the city’s zoning policy was to inhibit the migration into “finer residential districts … by colored people.” Even after the Supreme Court held that the use of explicit race-based zoning violated the Fourteenth Amendment’s Equal Protection Clause in Buchanan v. Warley (1917), localities across the country either ignored the ruling for decades, or adopted facially “race-neutral” language in their zoning ordinances, to achieve similar results. The biggest policy innovation following Buchanan was single-family zoning, which swiftly ensured exclusion on the basis of race, ethnicity and class. Often, such “neutral” ordinances cleared legal challenges. As Richard Rothstein writes in his book:

 … in 1977, the Supreme Court upheld a zoning ordinance in Arlington Heights, a suburb of Chicago, that prohibited multiunit development anywhere but adjacent to an outlying commercial area. The ordinance ensured that few, if any, African Americans could reside in residential areas. The city council had adopted its zoning ordinance at a meeting where members of the public urged action for racially discriminatory reasons. Letters to the local newspaper urged support for the ordinance as a way to keep African Americans out of white neighborhoods. But despite the openly racial character of community sentiment, the Supreme Court said the ordinance was constitutional because there was no proof that the council members themselves had adopted the ordinance to exclude African Americans specifically and not exclude all lower-income families, regardless of race. 

Today, encampments are multiplying across public parks, lining highways, and cropping up in alleyways, emblematic of the stark reality faced by many individuals and families. Amidst these makeshift settlements, crime and drug use often thrive, exacerbating the challenges faced by already vulnerable populations. The consequences ripple outward, affecting not only those directly experiencing homelessness but also the broader community. Residents lament the degradation of their neighbourhoods, voicing concerns about safety and the erosion of quality of life. In urban centres and rural towns alike, the sight of tents and makeshift shelters has become an all-too-common occurrence, underscoring the depth and breadth of this complex societal issue. As encampments expand, tensions between homeless individuals and local residents can escalate. 

Overwhelmed by an unmanageable rise in homelessness, some elected officials, under public pressure, have resorted to more radical solutions: criminalising public sleeping and camping. One such example is Grants Pass, a city of 39,000 inhabitants, in Oregon’s Josephine County. A series of local ordinances bar anyone from sleeping in public places, including parks, sidewalks, and cars, or utilising sleeping materials (pillows, blankets etc) to establish a temporary place of shelter. According to the City Code, “parks” encompasses city halls, community centres, police and fire stations, parking lots and other areas owned or maintained by the city. The ordinances impose a $295 fine per violation, which can increase to over $500 for unpaid violations. After receiving two citations, police officers can issue an order that bans the individual from all city property. A breach of that order is backed by the threat of criminal trespass charges, which carry penalties of up to 30 days in jail and a $1250 fine. Grants Pass lacks a homeless shelter or any affiliated charitable services to accommodate the destitute, effectively leaving them with no alternatives. This, in fact, is the whole point. As Lily Morgan, the city council president, stated at a meeting last year, “The point is to make it uncomfortable enough for them in our city so they will want to move on down the road.” 

The ethics of criminalising what is, by definition, an involuntary state of being, are certainly questionable. Even those among us who are unmoved by the personal suffering of the homeless would like to see the problem go away. Yet, as the War on Drugs – announced by President Nixon in 1971 – has shown with unquestionable clarity, you cannot criminalise a complex social and health problem out of existence. The most such policies can hope to achieve is for the unhoused to become somebody else’s problem (ie, they move to the next town). But that is not a sustainable solution to a national problem. Furthermore, from a public-finances perspective, it seems like an unwise use of the public purse. Arresting and imprisoning the homeless under anti-homeless laws costs taxpayers an average of $47,057 per person per year, according to the non-profit Vera Institute of Justice. That money could be diverted to public-housing projects, rehabilitation programs and the like. Given America’s shameful record of mass incarceration, it is high time to look for real solutions to complex problems. 

As states have moved to crack down on “public sleeping”, there has been pushback. After a group of plaintiffs challenged its actions, the small community of Grants Pass, Oregon, finds itself at the epicentre of a major constitutional battle before the United States Supreme Court. The way the Justices rule in City of Grants Pass v. Johnson will determine how states can respond to the homelessness problem. The question before the Court is this: Does the enforcement of generally applicable laws regulating camping on public property constitute “cruel and unusual punishment” prohibited by the Eighth Amendment? 

The Cruel and Unusual Punishments Clause states, quite simply, “nor cruel and unusual punishments inflicted.” Naturally, cases and controversies arising under the Eighth Amendment centre around the question of whether the punishment in question, such as the method of execution or the form of confinement (ie, solitary), is “cruel and unusual”, not on laws criminalising conduct. Modern Supreme Court precedent aligns with this approach. In the 2019 capital case of Bucklew v. Precythe, a majority of the Court affirmed the view that the Eighth Amendment is primarily concerned with punishments in which “terror, pain or disgrace [were] superadded” to the mode of punishment inflicted. 

Plaintiffs in the Grants Pass case rely squarely on a landmark outlier case from the heyday of the Warren Court. In that decision, Robinson v. California (1962), the Supreme Court held that laws criminalising mere addiction to narcotics were incompatible with the Eighth Amendment. Mr Robinson was stopped in Los Angeles by a police officer. During questioning, the officer discovered physical markings on Mr Robinson, consistent with drug use via injection. Crucially, there was no evidence that Mr Robinson was under the influence of drugs at the time, nor did he possess any illicit narcotics. Nevertheless, Mr Robinson was arrested and convicted under a California statute that made it illegal to be addicted to narcotics. He was sentenced to 90 days in the county jail. Mr Robinson sued, challenging his conviction on the ground that he was being punished merely for a state of being, something that required no action. The Court, by a 6-2 majority, agreed. Justice Potter Stewart memorably opined that “Even one day in prison would be cruel and unusual punishment for the ‘crime’ of having a common cold.” The plaintiffs in Grants Pass have seized on the logic of Robinson, arguing in their brief to the Court that Robinson “certainly prohibits jurisdictions from punishing people for universal biological necessities like sleeping and using a blanket to survive cold temperatures when they have no choice but to be outside.” 

Six years after Robinson, the Court returned to the “involuntary status” issue, in Powell v. Texas. In a highly fractured decision, a plurality rebuffed Leroy Powell’s arguments that a conviction for public intoxication was akin to punishing his chronic alcoholism, something over which he had no control. Justice Thurgood Marshall’s plurality opinion noted that Mr Powell was punished for being drunk in public, and not for his alcoholism condition. Justice Abe Fortas, writing for the four dissenters, saw no light between this case and Robinson. In Powell, one can sense the uneasiness from the majority of the Court, in further extending the logic of Robinson, and imperilling the constitutionality of the States’ public intoxication laws. 

A similar unease was evident during oral arguments in City of Grants Pass v. Johnson, where the six Republican-appointed Justices were sceptical of the notion of using the Eighth Amendment to wade into a complicated socio-economic problem like homelessness. The Ninth Circuit Court of Appeals held that it is a violation of the Eighth Amendment for a jurisdiction to penalise people for being involuntarily homeless if that jurisdiction did not have a commensurate number of shelter beds for its homeless population. A majority of the Court seemed inclined to reverse the Ninth Circuit and thereby allow localities across the nation more flexibility to craft their own policy responses to the problem of homelessness. However, the three Democrat-appointed Justices seemed to be in lockstep that this case falls squarely within the holding of Robinson. Justice Sonia Sotomayor forcefully pushed back against counsel for Grants Pass: “Where do we put them if every city, every village, every town lacks compassion and passes a law identical to this? Where are they supposed to sleep? Are they supposed to kill themselves not sleeping?” 

Behind every single homelessness statistic is a living, breathing human being, entitled to be treated with dignity and compassion. A single mother, who lost her job and was drowning in debt, evicted from her one-bedroom apartment with nowhere to turn; an abused teenager, who fled from home, ended up sleeping in his car; a disabled widower, burdened by medical expenses, his home repossessed due to mortgage arrears; an ex-felon, abandoned by society, found himself rejected from every job application, ultimately resorted to sleeping in a disused parking lot; and a bipolar individual, failed by an overstrained mental health care system, forced to live in a tent beside the highway. These are our brothers and sisters, our fellow citizens, downtrodden and out of luck, or simply at rock bottom because of terrible life choices. 

At the same time, it would be dishonest to dismiss the impact that ever-expanding tent cities and “skid rows” have on the safety, enjoyment and businesses of those fortunate enough not to be without a home. No one wants to take their kids to the park across the street and wade through tents, litter and used needles; no one wants to walk to the office in the morning and have to pass several homeless people defecating on the pavement. There has never been a more urgent time for broad bipartisan cooperation – from the local level up – to effectuate pragmatic and rational policies to alleviate the spiralling homelessness problem, starting with a hard look at zoning ordinances that perpetuate housing shortages without good cause, and drive up housing prices unnecessarily. Concurrently, it is submitted that criminalising people for sleeping rough, for having no viable alternative, is irrational. It is also cruel to impose punishment on individuals where they cannot reasonably avoid falling afoul of the law. Whether it is “cruel and unusual punishment” remains to be seen…