Being and Doing in Criminal Law
Amid its flurry of end-of-term opinions last week, the Supreme Court finally dropped its decision in Grants Pass v. Johnson, the case asking whether the Eighth Amendment’s prohibition on cruel and unusual punishments prevents states and localities from criminalizing the homeless sleeping outside, if those homeless individuals have nowhere else to sleep. Predictably, the six conservative justices held that it does not, overruling the Ninth Circuit’s prior decision in Martin v. City of Boise. The three dissenting liberal justices endorsed the reasoning of Martin and would have affirmed the Ninth Circuit’s decision below.
As I described previously, the Ninth Circuit in Martin reasoned that a prohibition on homeless persons sleeping outside amounted to an unconstitutional “status” crime under Robinson v. California. In Robinson, the court had held that the Eighth Amendment contains a substantive component that prohibited California from making it a crime merely to be a drug addict. But Robinson on its own did not suffice to justify the result in Martin, because the Robinson court specified that conduct associated with drug addiction, such as possessing or consuming illegal narcotics, could still be criminalized consistent with the Eighth Amendment.
The Ninth Circuit instead relied on Justice White’s concurrence in Powell v. Texas, the follow-on case to Robinson. Powell was a 4-1-4 split decision, with Justice White’s concurrence in the judgment only supplying the deciding vote to uphold Texas’s law criminalizing public intoxication. Justice White argued that it would offend the Eighth Amendment to criminalize conduct compelled by an involuntary condition.1 If it’s unconstitutional to criminalize having a cold, it must be equally unconstitutional to criminalize sneezing because of the cold.
Based on Justice White’s lone concurrence, the Ninth Circuit held that it is unconstitutional to criminalize sleeping outside if the conduct is compelled by the condition of involuntary homelessness, because the person biologically must sleep and has nowhere else to do so. There is no doubt that the Ninth Circuit was out on a limb in Martin, because four justices in Powell rejected Justice White’s argument in an opinion by Justice Marshall and reaffirmed Robinson’s distinction between a status or condition and conduct arising from it.2 The Ninth Circuit, however, thought that Justice White plus the four dissenting justices made a five-justice majority.
Then, in Grants Pass, the Ninth Circuit authorized the homeless plaintiffs in that case to seek class certification on behalf of all homeless residents of the City of Grants Pass, Oregon because it was undisputed that there are not enough beds available in the city to shelter all its homeless population.
Grants Pass ordinances prohibit sleeping on sidewalks, streets, or alleyways, and camping or overnight parking in public parks. Although a violation is only subject to a fine, multiple violations may result in an order banning the individual from city parks for 30 days. Violating the exclusion order in turn may result in a conviction for criminal trespass, punishable by up to 30 days in jail.
It came as a surprise to no one that Martin and its progeny were dead on arrival in the Supreme Court. As Judge O’Scannlain, dissenting from denial of rehearing en banc in the Ninth Circuit, noted, Martin’s reasoning is “at war with the constitutional text, history, and tradition.”
But I wondered how far the high court would go in peeling back the Ninth Circuit’s reasoning. As a matter of original meaning, the Eighth Amendment was intended to cabin methods and modes of punishment, not the substance of underlying crimes. An originalist interpretation of the Eighth Amendment would seemingly conclude that Robinson’s initial holding that there is a substantive component to the prohibition on cruel and unusual punishments was “egregiously wrong,” as the court put it in Dobbs.
But Justice Gorsuch, writing for the majority in Grants Pass, stopped short of overturning Robinson, simply noting that no one had asked them to do so. Leaving Robinson undisturbed, the majority nevertheless found that the ordinances in question were neither cruel, nor unusual, nor punishments.
The ordinances themselves were of course not punishments at all, but rather substantive crimes, a matter not implicated by the Eighth Amendment. Setting aside this technical point and examining the punishments available for violation of these ordinances, monetary fines and short jail terms could hardly be described as “unusual” since cities and states across the country “have long employed, and employ today, similar punishments for similar offenses.” Nor did they qualify as “cruel” in the sense of inflicting gratuitous “terror, pain, or disgrace” merely for their own sake.
Justice Gorsuch did not struggle with Robinson despite leaving it intact; that opinion was easily distinguishable because it expressly did not apply to conduct. While “Robinson already sits uneasily with the Amendment’s terms, original meaning, and our precedents … [i]ts holding is restricted to laws that criminalize ‘mere status.’” Instead, this case was like Powell, where the court upheld the Texas public intoxication law because, as the lead opinion by Justice Marshall in that case reasoned, it required the conduct of drinking in public, not the mere status of being an alcoholic. Similarly, the Grants Pass ordinances do not criminalize homelessness as such, they make the conduct of sleeping or camping in public places an offense.
In a footnote, the majority opinion criticized Martin’s reliance on Justice White’s Powell concurrence because “the Court has repeatedly relied on Justice Marshall’s opinion, as we do today.” I will admit, I was a bit surprised by this facile justification, which skirted the sticky methodological question raised by Powell and struggled with by the court below of what constitutes the governing opinion of a three-way split Supreme Court decision where no one opinion garners an absolute majority of the court.
Below in the Ninth Circuit, the majority and dissent had sparred over the meaning of Marks v. United States, a previous Supreme Court case that purported to resolve that issue. As noted, the Martin majority counted five justices, the four dissenters plus Justice White, for the proposition that conduct compelled by a condition is protected by the Eighth Amendment. The Martin dissenters, however, read Marks to say that only those Justices agreeing in the outcome of the case are counted. In that interpretation, Justice Marshall’s opinion rejecting that position governs because the Powell dissenters don’t count.
But Justice Gorsuch did not take up the question and seemed to simply say instead that, because the court had subsequently relied on the Marshall opinion in later cases, it had essentially adopted or ratified that rationale. This is an unsatisfying tack because it gives lower courts no direction on how to handle future three-way plurality splits, at least until a particular opinion has been “repeatedly relied on.” How does a court handle a fresh triple split plurality? And how many times does a particular rationale need to be relied on before it can be taken as the governing analysis?3
But I digress.
Ultimately, the majority upheld the status/conduct distinction established in Robinson and (apparently) affirmed by Powell, wiping Martin and its compelled-conduct innovation off the books. Have the homeless been sent up the creek without a paddle? Not entirely. As Justice Gorsuch noted, the legal defense of “necessity” may “extend[] to charges for illegal camping when it comes to those with nowhere to go.”
That point is part of a larger critique of this line of cases, going all the way back to Robinson itself, that these decisions unnecessarily constitutionalize issues already addressed by garden variety state criminal law. As I discussed previously, for example, the obvious flaw with California’s law against being a drug addict is that it contains no “actus reus” or criminal conduct. In a fundamental sense, being something without doing anything can’t be a crime.
So what is the rationale for making this about the constitution? Well, if a law is declared unconstitutional, it’s struck down across the board, relieving individual defendants of the burden of proving their case in court. A single plaintiff may, on behalf of all affected individuals, seek to enjoin the government from enforcing the law altogether, as in fact the Grants Pass plaintiffs sought to do in the Ninth Circuit.
This is a particularly urgent concern where, as here, we are dealing with petty misdemeanors charged against indigent defendants. Access to public defenders in such cases is sometimes limited and even where they are available, the incentive to litigate such cases to acquittal, as opposed to pleading out, is minimal. Nonetheless, the trauma and disruption of being jailed for up to 30 days are absolutely no joke.
If the Eighth Amendment can’t support a constitutional challenge to laws that effectively criminalize homelessness, is there another way to get there?
Justice White nonetheless joined in the judgment upholding the Texas law because Powell didn’t offer evidence at trial that he was homeless and therefore couldn’t help getting sauced in public.
Those four justices plus White’s concurrence in the judgment made 5 votes not to strike down the Texas law.
Granted, triple split pluralities like we saw in Powell are relatively rare. Still, if it is true that the court is developing a “center block” consisting of Roberts, Kavanaugh, and Barrett, we may spot more of this elusive beast in the future.