The constitution’s Eighth Amendment provides that: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Setting aside bail and fines for another time, the Eighth Amendment generally protects those who have been convicted of a crime from punishments that are either excessive in comparison to the seriousness of the offense or that are outlandishly cruel; essentially torture.
This case puts me in mind of Employment Division v. Smith, the one about the guy who was prosecuted for using peyote, but who used it because he was Native American and it was part of his religious practice. Scalia, writing for the Supremes, basically said "too bad, so sad, obey the law like everyone else." That seemed hard-hearted because Smith was a really sympathetic guy and Scalia was the judge everyone loved to hate, but we've seen what happened: Congress and a bunch of state legislatures went ballistic and passed laws saying "if obeying the law is against your religion then you don't have to," and now we have 303 Creative and Masterpiece Cakeshop and Hobby Lobby and all the rest of it. Johnson is just as sympathetic as Smith and maybe even more so, but if the rule is going to be is that he can violate public-sleeping laws because of his status, I have to wonder what other laws he can violate. What if it's really cold -- like, what if this were Fairbanks v. Johnson instead of Grants Pass? Can he be punished for breaking in to a building to sleep, given that he'd die if he slept outdoors? How about checking in to a hotel with a phony credit card? (Does it matter whether it was a Motel 6 or a Hilton?) How about the Les Mis scenario, where someone who can't afford food steals a loaf of bread? We all know that Valjean was the good guy and Javert was the baddie, but would that be as obvious if Valjean had stolen, say, an elaborately decorated wedding cake, or a whole roast pig? I'm very sympathetic to the unhoused, but, like I said, this has a very strong whiff of Smith/RFRA, and that's been an unmitigated disaster.
The concept of compulsion is problematic, because it doesn’t involve truly involuntary conduct like an epileptic stroke. Rather, the person still has a choice but is overwhelmingly influenced by the condition to commit the act. So I think you’re right, this analysis seems to justify stealing food by the starving, since that is a condition no less compelling than alcoholism.
I'm not sure why this even needs to be an Eighth Amendment analysis. Maybe Oregon doesn't have a necessity-defense doctrine, but California does and I thought most states do. In California, the elements are “(1) The act charged as criminal must have been done to prevent a significant evil; (2) There must have been no adequate alternative to the commission of the act; (3) The harm caused by the act must not be disproportionate to the harm avoided; (4) The accused must entertain a good-faith belief that his act was necessary to prevent the greater harm; (5) Such belief must be objectively reasonable under all the circumstances; and (6) The accused must not have substantially contributed to the creation of the emergency.” (People v. Pena (1983) 149 Cal.App.3d Supp. 14, 22.) It's an affirmative defense so the defendant has to prove all that stuff, but if he can, he's acquitted. I'd say that not being able to sleep, ever, counts as "significant evil," so that analysis looks like it would solve the problem without having to go all the way to "it's unconstitutional to punish people for conduct that's compelled by their status."
I'm just leery of this whole thing because it's so close to the Smith/RFRA situation, which I hate. I mean, if you took the Smith opinion and used a word processor to change "Free Exercise Clause" to "Eighth Amendment" and "peyote usage" to "sleeping in public," you'd have pretty much the opinion that Grants Pass wants the Supremes to issue. If they do, it's going to be godawful for a lot of unhoused people, so that's bad, but if they go the other way we'll be kind of where we were after Congress passed RFRA, and that hasn't been been so good either. Is "bigot" a status? If I can put on testimony from a licensed psychologist that I'm a bigot because my parents were and my grandparents were and I was carefully taught to hate all the people my relatives hate and I therefore have no choice whatsoever about being a bigot, can I defend against a charge of violating anti-discrimination laws? I'll bet somebody has a shot at that one if the Supremes affirm in Grants Pass.
Yeah, necessity seemingly fits the bill. And Justice White’s concurrence reads kind of like he was envisaging the Eighth Amendment as a defense that could be raised in a given case as well, rather than a class action to invalidate laws across the board, which is how it’s being presented in Grants Pass. That is something I think the 9th circuit dissenters complained about below.
This case puts me in mind of Employment Division v. Smith, the one about the guy who was prosecuted for using peyote, but who used it because he was Native American and it was part of his religious practice. Scalia, writing for the Supremes, basically said "too bad, so sad, obey the law like everyone else." That seemed hard-hearted because Smith was a really sympathetic guy and Scalia was the judge everyone loved to hate, but we've seen what happened: Congress and a bunch of state legislatures went ballistic and passed laws saying "if obeying the law is against your religion then you don't have to," and now we have 303 Creative and Masterpiece Cakeshop and Hobby Lobby and all the rest of it. Johnson is just as sympathetic as Smith and maybe even more so, but if the rule is going to be is that he can violate public-sleeping laws because of his status, I have to wonder what other laws he can violate. What if it's really cold -- like, what if this were Fairbanks v. Johnson instead of Grants Pass? Can he be punished for breaking in to a building to sleep, given that he'd die if he slept outdoors? How about checking in to a hotel with a phony credit card? (Does it matter whether it was a Motel 6 or a Hilton?) How about the Les Mis scenario, where someone who can't afford food steals a loaf of bread? We all know that Valjean was the good guy and Javert was the baddie, but would that be as obvious if Valjean had stolen, say, an elaborately decorated wedding cake, or a whole roast pig? I'm very sympathetic to the unhoused, but, like I said, this has a very strong whiff of Smith/RFRA, and that's been an unmitigated disaster.
The concept of compulsion is problematic, because it doesn’t involve truly involuntary conduct like an epileptic stroke. Rather, the person still has a choice but is overwhelmingly influenced by the condition to commit the act. So I think you’re right, this analysis seems to justify stealing food by the starving, since that is a condition no less compelling than alcoholism.
I'm not sure why this even needs to be an Eighth Amendment analysis. Maybe Oregon doesn't have a necessity-defense doctrine, but California does and I thought most states do. In California, the elements are “(1) The act charged as criminal must have been done to prevent a significant evil; (2) There must have been no adequate alternative to the commission of the act; (3) The harm caused by the act must not be disproportionate to the harm avoided; (4) The accused must entertain a good-faith belief that his act was necessary to prevent the greater harm; (5) Such belief must be objectively reasonable under all the circumstances; and (6) The accused must not have substantially contributed to the creation of the emergency.” (People v. Pena (1983) 149 Cal.App.3d Supp. 14, 22.) It's an affirmative defense so the defendant has to prove all that stuff, but if he can, he's acquitted. I'd say that not being able to sleep, ever, counts as "significant evil," so that analysis looks like it would solve the problem without having to go all the way to "it's unconstitutional to punish people for conduct that's compelled by their status."
I'm just leery of this whole thing because it's so close to the Smith/RFRA situation, which I hate. I mean, if you took the Smith opinion and used a word processor to change "Free Exercise Clause" to "Eighth Amendment" and "peyote usage" to "sleeping in public," you'd have pretty much the opinion that Grants Pass wants the Supremes to issue. If they do, it's going to be godawful for a lot of unhoused people, so that's bad, but if they go the other way we'll be kind of where we were after Congress passed RFRA, and that hasn't been been so good either. Is "bigot" a status? If I can put on testimony from a licensed psychologist that I'm a bigot because my parents were and my grandparents were and I was carefully taught to hate all the people my relatives hate and I therefore have no choice whatsoever about being a bigot, can I defend against a charge of violating anti-discrimination laws? I'll bet somebody has a shot at that one if the Supremes affirm in Grants Pass.
Yeah, necessity seemingly fits the bill. And Justice White’s concurrence reads kind of like he was envisaging the Eighth Amendment as a defense that could be raised in a given case as well, rather than a class action to invalidate laws across the board, which is how it’s being presented in Grants Pass. That is something I think the 9th circuit dissenters complained about below.