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Yves here. It is hard to wrap one’s mind around the insanity and cruelty of the recent Grants Pass v. Johnson, which allows governments to not merely evict the homeless from sleeping places but even fine or incarcerate them. The previous, long-standing precedent of Martin v. Boise had concluded that if a jurisdiction could not provide enough or adequate shelter for the homeless, it could not clear encampments.
Six members of the Supreme Court concluded that persecuting, now prosecuting, the homeless was not cruel or unusual. It’s too bad they can’t be subjected to at least a night of sleeping rough plus one in a shelter. But it’s too late for that now, in terms of the state of the law.
This piece does not consider self-serving/community reasons to want to address, rather than criminalize homelessness, such as preventing the spread of disease (the effect of trying to break up encampments will be the homeless moving about regularly and/or to not well policed or patrolled areas), the fact that further attacks on the homeless via denying them a place to live makes it pretty much impossible for them to work (surveys have found that about 40% are employed), and harms their children even more (how do they go to school if they don’t have even an encampment as a base?)
So the next question is: when will we see Dickensian workhouses?
By Cedar Monroe and Liz Theoharis. Originally published at TomDispatch
In 2019, a group of homeless folks were living on a deserted piece of land along the Chehalis River, a drainage basin that empties into Grays Harbor, an estuary of the Pacific Ocean, on the coast of the state of Washington. When the city of Aberdeen ordered the homeless encampment cleared out, some of those unhoused residents took the city to court, because they had nowhere else to go. Aberdeen finally settled the case by agreeing to provide alternative shelter for the residents since, the year before, a U.S. court of appeals had ruled in the case of Martin v. Boise that a city without sufficient shelter beds to accommodate homeless people encamped in their area couldn’t close the encampment.
Indeed, for years, homeless people on the West Coast have had one defense set by the 9th Circuit Court of Appeals. In Martin v. Boise, it ruled that criminalizing people who had nowhere else to sleep was indeed “cruel and unusual punishment.” However, a group of homeless folks in Grants Pass, Oregon, who had been fined and moved from place to place because they lacked shelter, took their case all the way to the Supreme Court. And in June, it ruled against them, overturning Martin v. Boise and finding that punishing homeless people with fines and short stints in jail was neither cruel, nor unusual, because cities across the country had done it so often that it had become commonplace.
Dozens of amicus briefs were filed around Grants Pass v. Johnson, including more than 40 friends of the court briefs against the city’s case. The Kairos Center for Religions, Rights & Social Justice (to which the authors of this piece are connected) submitted one such brief together with more than a dozen other religious denominations, historic houses of worship, and interfaith networks. The core assertion of that brief and the belief of hundreds of faith institutions and untold thousands of their adherents was that the Grants Pass ordinance violated our interfaith tradition’s directives on the moral treatment of the poor and unhoused.
One notable amicus brief on the other side came from — be surprised, very surprised — supposedly liberal California Governor Gavin Newsom who argued that, rather than considering the poverty and homelessness, which reportedly kills 800 people every day in the United States, immoral and dangerous, “Encampments are dangerous.” Wasting no time after the Supreme Court ruling, Newsom directed local politicians to start demolishing the dwellings and communities of the unhoused.
Since then, dozens of cities across California have been evicting the homeless from encampments. In Palm Springs, for instance, the city council chose to demolish homeless encampments and arrest the unhoused in bus shelters and on sidewalks, giving them just 72 hours’ notice before throwing out all their possessions. In the state capital of Sacramento, an encampment of mostly disabled residents had their lease with the city terminated and are now being forced into shelters that don’t even have the power to connect life-saving devices (leaving all too many homeless residents fearing death). The Sacramento Homeless Union filed a restraining order on behalf of such residents, but since Governor Newsom signed an executive order to clear homeless encampments statewide, the court refused to hear the case and other cities are following suit.
In the wake of the Supreme Court ruling, such acts of demolition have spread from California across the country. In August alone, we at the Kairos Center have heard of such evictions being underway in places ranging from Aberdeen, Washington, to Elmira, New York, Lexington, Kentucky, to Lancaster, Pennsylvania — to name just a few of the communities where homeless residents are desperately organizing against the erasure of their lives.
Cruel but Not Unusual
However unintentionally, the six conservative Supreme Court justices who voted for that ruling called up the ghosts of seventeenth-century English law by arguing that the Constitution’s mention of “cruel and unusual punishment” was solely a reference to particularly grisly methods of execution. As it happens, though, that ruling unearthed more ghosts from early English law than anyone might have realized. After all, in the sixteenth and seventeenth centuries, peasants in England lost their rights to land they had lived on and farmed for generations. During a process called “enclosure,” major landholders began fencing off fields for large-scale farming and wool and textile production, forcing many of those peasants to leave their lands. That mass displacement led to mass homelessness, which, in turn, led the crown to pass vagrancy laws, penalizing people for begging or simply drifting. It also gave rise to the English workhouse, forcing displaced peasants to labor in shelters, often under the supervision of the church.
To anyone who has been or is homeless in the United States today, the choice between criminalization and mandated shelters (often with religious requirements) should sound very familiar. In fact, Justice Neil Gorsuch, who delivered the majority opinion in the Grants Pass case, seemed incredulous that the lower court ruling they were overturning had not considered the Gospel Rescue Mission in that city sufficient shelter because of its religious requirements. In the process, he ignored the way so many private shelters like it demand that people commit to a particular religious practice, have curfews that make work inconceivable, exclude trans or gay people, and sometimes even require payment. He wrote that cities indeed needed criminalization as “a tool” to force homeless people to accept the services already offered. In addition to such insensitivity and undemocratic values, Gorsuch never addressed how clearly insufficient what Grants Pass had to offer actually was, since 600 people were listed as homeless there, while that city’s mission only had 138 beds.
Instead, the Supreme Court Justice sided with dozens of amicus briefs submitted by police and sheriff’s associations, cities and mayors across the West Coast (in addition to Governor Newsom), asking for a review of Martin v. Boise. In that majority opinion, Gorsuch also left out what his colleague, Supreme Court Justice Sonia Sotomayor, revealed in her fiery dissent: the stated goal of Grants Pass, according to its city council (and many towns and cities across the West), is to do everything possible to force homeless people to leave city limits. The reason is simple enough: most cities and towns just don’t have the resources to address the crisis of housing on their own. Their response: rather than deal better with the homelessness crisis, they punch down, attempting to label the unhoused a threat to public safety and simply drive them out. In Grants Pass, the council president said, in words typical of city officials across the country: “The point is to make it uncomfortable enough for [homeless people] in our city, so they will want to move on down the road.”
The United States of Dispossession
This country, of course, has a long history of forcing people to go from one place to another, ranging from the horrors of the transatlantic slave trade to widespread vagrancy laws. From the very founding of the United States, as the government encountered Indigenous people who had held land in common since time immemorial, they forced them off those very lands. They also subjected generations of their children to Indian boarding schools patterned after English workhouses. In just a few hundred years, the government attempted to destroy a series of societies that provided for all their people and shared the land. Now, Indigenous people have the highest rates of homelessness in this country. And in the modern version of such homelessness, the West has become a region of stark inequality, where Bill Gates owns a quarter of a million acres of land, while millions of people struggle to find housing. Put another way, 1% of the American population now owns two thirds of the private land in the nation. Such inequality is virtually unfathomable!
In Trash: A Poor White Journey (a memoir by Monroe with a foreword by Theoharis), we argue that the homelessness crisis in this country reveals the chasm between those relative few of us who possess land and resources and those of us who have been dispossessed and are landless or homeless. There were indeed periods in our recent history — the New Deal of the 1930s and the War on Poverty of the 1960s — when government agencies built public housing and invested more in social welfare, greatly reducing the number of homeless people in America. However, this country largely stopped building public housing more than 40 years ago. Housing services have been reduced to the few Department of Housing and Urban Development (HUD) apartments still left and a tiny bit of money funding housing vouchers for landlords. Our cities are now full of people like Debra Black, who said in her statement in the Grants Pass case, “I am afraid at all times in Grants Pass that I could be arrested, ticketed, and prosecuted for sleeping outside or for covering myself with a blanket to stay warm.” She died while the case was being litigated, owing the city $5,000 in unpaid fines for the crime of sleeping outdoors.
The Supreme Court ruled that ordinances against sleeping or camping outdoors or in a car applied equally “whether the charged defendant is currently a person experiencing homelessness, a backpacker on vacation, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building.” As Anatole France, the French poet and novelist, said so eloquently long ago, “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” In this country, of course, everyone is forbidden from occupying space they don’t own.
After all, while the Bill of Rights offers civil rights, it offers no economic ones. And while the United States might indeed be the richest country in history, it hasn’t proven particularly rich in generosity. Even though there are far more empty homes than homeless people (28 for each homeless person HUD has counted on a single January night annually), they’re in the hands of the private market and developers looking to make fast cash. In short, privatizing land seems to have been bad for all too many of us.
In the end, the Supreme Court’s ruling proved short-sighted indeed. While it gave the cities of the West Coast what they thought they wanted, neither the court nor those cities are really planning for the repercussions of millions of people being forced from place to place. The magical thinking exhibited by Grants Pass officials — that people will just go down the road and essentially disappear — ignores the reality that the next city in line would prefer the same.
The Supreme Court opinion cited HUD’s Point in Time (PIT) counts (required for county funding for homeless services) that identified more than 650,000 homeless people in the United States in January 2023. That number is, however, a gross underestimate. Fourteen years ago, Washington State’s Department of Social and Health Services (DSHS) issued a study suggesting that, while only 22,619 people had been found in the annual PIT count in that state, the total count using DSHS data proved to be 184,865, or eight times the number used for funding services.
A conservative estimate of actual post-pandemic homelessness in this country is closer to 8 to 11 million nationally. Worse yet, the effects of the pandemic on jobs, the subsequent loss of Covid era benefits, and crippling inflation and housing costs ensure that the number will continue to rise substantially. But even as homelessness surges, providing decent and affordable housing for everyone remains a perfectly reasonable possibility.
Consider, for instance, Brazil where, even today, 45% of the land is owned by 1% of the population. However, after authoritarian rule in that country ended in 1985, a new constitution was introduced that significantly changed the nature of land ownership. Afro-Brazilians were given the right to own land for the first time, although many barriers remain. Indigenous people’s rights as “the first and natural owners of the land” were affirmed, although they continue to find themselves in legal battles to retain or enforce those rights. And the country’s constitution now “requires rural property to fulfill a social function, be productive, and respect labor and environmental rights. The state has the right to expropriate landholdings that do not meet these criteria, though it must compensate the owner,” according to a report by the progressive think tank TriContinental: Institute for Social Research.
That change to the constitution gave a tremendous boost to movements of landless peasants that had formed an organization called Movimento dos Trabalhadores Rurais Sem Terra (MST), or the Landless Workers Movement. The MST created a popular land reform platform, organizing small groups of homeless people to occupy and settle unused vacant land. Because the constitution declared that land public, they could even sue for legal tenure. To date, 450,000 families have gained legal tenure of land using such tactics.
If Not Here, Where?
Today, untold thousands of people in the United States are asking: “Where do we go?” In Aberdeen, Washington, people camping along the Chehalis River were given just 30 days to leave or face fines and arrests.
Eventually, Americans will undoubtedly be forced to grapple with the unequal distribution of land in this country and its dire consequences for so many millions of us. Sooner or later, as Indigenous people and tribal nations fight for their sovereignty and as poor people struggle to survive a growing housing crisis, the tides are likely to shift. In the West, we would do well to consider places like Brazil in developing a strategy to start down the path to ending homelessness here and we would do well to consider the power of the 8 to 11 million unhoused people who know what they need and are finally beginning to organize for their future. They may have lost this time around, but if history teaches us anything, they will find justice sooner or later.
