Street Spirit spoke with Heather Freinkel—managing attorney and outreach supervisor at the Homeless Action Center—about the implications of the historic ruling.
On Friday, June 28, the Supreme Court ruled that the U.S. Constitution allows local governments to fine, arrest, and jail people for living outside when they have nowhere else to go. In short, the ruling says that the simple act of sleeping outside can be a crime if local governments choose to make it one.
In 2018, three homeless people sued the City of Grants Pass over giving them tickets for sleeping outside, despite the fact that the city has one single homeless shelter, which cannot accommodate the number of unhoused people there. The Ninth Circuit Court of Appeals—which governs nine states in the Western US including Oregon—sided with the unhoused people. It ruled that criminalizing basic survival amounts to cruel and unusual punishment. But the City of Grants Pass challenged that ruling and brought it to The U.S. Supreme Court. In so doing, local officials explicitly stated that their goal is to make the city “uncomfortable enough for [unhoused people]” that they decide to “move on down the road.”
The Supreme Court has now sided with Grants Pass, saying that punishing somebody for being homeless is not cruel because “such punishments…are not designed to [impose] terror, pain, or disgrace.” And, that handing down fines, arrests, and jail time is not unusual because these forms of punishment are similar to “the usual modes of punishment throughout the country.”
Many local advocates disagree. We spoke with Heather Freinkel, a managing attorney at the Homeless Action Center, about the historic ruling. Our interview has been edited and condensed for length and clarity.
Alastair Boone: When you’re out there on the ground witnessing sweeps, what kind of protections do people currently have under Martin v. Boise or other laws, which will now be overruled by Grants Pass?
Heather Freinkel: Well, Martin is pretty limited. It’s a floor. It just says that the government can’t prosecute, with criminal penalties, somebody who is sleeping in a place that they’re not allowed to sleep—if they don’t offer the person somewhere else to go. So what’s really wild about Grants Pass is that they’re [eliminating] even that very basic protection.
What we see on the street is that sometimes when people in an encampment are resisting being displaced [during a sweep], the police might detain people or arrest people, but they’ll make up charges. Things like obstructing a police officer. They [are still able to] use the law that to target specific individuals for the act of resisting being displaced, even under Martin.
AB: They can’t target them for sleeping outside, but they can still detain them for allegedly breaking other laws.
HF: Right. it’s sort of like, well, sleeping in the tent isn’t a crime, but resisting when the city comes in with trucks and tries to displace you is a crime. So, you know, I think there is some level of protection [under Martin], but it doesn’t say that they can’t make everyone move through some other means.
There are other constitutional protections that say that the government is not supposed to take or throw away all your stuff. But what we’ve seen also is that municipalities have rules about determining what is hazardous, and they have wide discretion in making those decisions. And they will go into an encampment and say, “oh, well, there’s rats here. It’s contaminated.” So I think the property question is still up in the air.
What we normally see at encampment sweeps is that residents aren’t arrested, but the city might come in and they’ll take most of the person’s stuff. Maybe
[the resident] has an opportunity to take their most important items, but a lot of the time, especially if people have disabilities, or they don’t have anywhere to put their stuff, or they don’t have any way to move it, governments will come in and just take away all their possessions. Which doesn’t doesn’t make the person disappear, but it makes the encampment disappear. Because that’s their home, and then they won’t be allowed to come back.
Sometimes people are offered some sort of shelter bed, a community cabin or hotel room, but I think we all know that the number of people who are currently unsheltered greatly exceeds the number of available beds.
AB: But I think it’s an interesting point. Because Grants Pass is saying, “we are being too restricted in our ability to sweep encampments.” And advocates are saying, “you’re not restricted, because the law does not ban sweeps.” It only creates this requirement to offer shelter.
HF: Right. Martin [doesn’t] say you can’t sweep unless you offer shelter. It says you can’t arrest people for the specific offense of sleeping on the street—unless you offer shelter. So you can sweep, you just can’t arrest them.
And [in the past], there are people who have for sure been detained, who have been locked in the back of a police car while their home was destroyed and thrown into garbage trucks, and all of their possessions were taken away. And then they were not charged with a crime, and they were released from the back of a locked police car.
AB: Right. The difference is that now, they could more easily be charged with a crime. So then in your view, what is at stake with Grants Pass?
HF: I mean, having people actually jailed [will] be heartbreaking, and horrible.
[I don’t think] that the cities will necessarily even need to do that to conduct sweeps. I think the new law [will] be used to deter people from going to [certain towns] at all, because they’ll be scared to be put in jail if they are in that area. Because there’s probably going to be another town somewhere else that’s not going to [strictly enforce] it. So some towns or cities or states maybe even will try to enforce harsher punishments in order to make people go somewhere else, which is, in the big picture, really not productive.
I think that locally, we [will] see an increase in targeted criminalization of individuals who are resisting sweeps.
It’s interesting from a legal standpoint, because the Eighth Amendment [argues] that it’s cruel and unusual to punish somebody for something that they can’t control, or something they could not have changed. It’s a big deal for the government to say that the Eighth Amendment doesn’t protect people in the United States from being criminalized for things they couldn’t help doing. That would be a bigger problem for the whole country.
AB: How you view this ruling as a referendum on our identity as a country?
HF: I think it really undermines the legitimacy of The Supreme Court. People have studied the political implications of what happens when the Supreme Court or the government at large fails to represent the true values and preferences of the population. And I hope that this is a wildly unpopular argument. My hope for our country is that most people find this repulsive, to think that people would be thrown in jail because they can’t afford the rent. My hope is that most people in the United States don’t think it’s fair to arrest somebody just for not having anywhere to go. Because you have to put your body somewhere.
I know there’s a lot of people who are really intolerant, and they’re very loud. But I hope that for the most part, people will not be okay with this. I don’t think our system is operating in a particularly democratic way right now. [And] I think that it’s dangerous to have a government that doesn’t represent the values and preferences of the people. It’s unstable.
Alastair Boone is the Director of Street Spirit.