As the author Anatole France once proclaimed, “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”
For Talid Boycan, a 26-year-old from Cincinnati, the conditions of poverty that the law intends to prevent were all too familiar. After moving to Colorado, he recounted to reporters how “the nights got cold. We layered our clothes, but I’d still be cold because I was anemic.” He described how he and his single mom “would always end up being robbed in our house or evicted, and my mom didn’t know where to go.” Boycan is far from the only American to experience these heartbreaking realities.
On a single night in 2023, roughly 653,100 people were experiencing homelessness in the United States. Around a quarter of them resided in California alone. These staggering numbers were not even the peak. In 2024, the number of unhoused Americans rose to 771,480, an 18% increase over a single year. Over 35% of these individuals are unsheltered, meaning they sleep on streets, sidewalks, parks, cars, abandoned buildings, trains, buses, or worse.
According to the 2024 Annual Homelessness Assessment Report by the Department of Housing and Urban Development, around 83.6% of Americans experiencing homelessness live in urban or suburban areas, with over half residing in the nation’s 50 largest cities. As wages continue to stagnate and the cost of living increases, the homelessness crisis in these cities will only deepen over time.
One of the ways that cities have attempted to respond to the crisis is by passing ordinances that criminalize public camping. These ordinances allow police officers to displace unhoused residents from parks and streets, restoring the aesthetic of public spaces at the cost of making it more difficult for those already facing homelessness to access social services such as Rapid Re-Housing (RRH) programs.
According to some, this criminalization violates the Eighth Amendment of the U.S. Constitution, which prohibits “cruel and unusual” punishment. Advocates for the unhoused argue that since unhoused people have nowhere else to sleep, criminalizing public camping is akin to criminalizing the act of sleeping for those without adequate accommodations. Their argument goes as follows: Criminalizing public camping makes it a crime for unhoused residents to sleep outside. Since sleep is a physiological need, this is akin to criminalizing the mere status of being homeless.
Criminalizing statuses instead of actions was determined to be unconstitutional by the Supreme Court in the 1962 case Robinson v. California, the primary case upon which the unhoused advocates’ argument relies. In Robinson, which dealt with the issue of drug addiction, the Supreme Court established the precedent that states may only criminalize actions, not statuses. Advocates of the unhoused today argue that this precedent should be applied to include protections for people who need to sleep outside, since experiencing homelessness is arguably outside of one’s control in many circumstances.
Unfortunately, the advocates’ argument is not ironclad. Six years after Robinson v. California, in Powell v. Texas, the Supreme Court held that criminalizing public drunkenness did not violate the constitutional rights of people who are unhoused and alcoholic. Given the adverse circumstances intrinsic to those born into a state of inherited disadvantage and the physiological nature of addiction, both homelessness and alcoholism are arguably beyond one’s control and could be considered statuses instead of conduct. The case narrowed the scope of Robinson by restricting what is considered a “status,” perhaps erroneously placing homelessness within the category of voluntary conduct instead of involuntary status.
Just last year, the Supreme Court agreed to hear a case challenging the constitutionality of cities banning public camping without providing adequate shelter beds. In the 35-page Grants Pass v. Johnson opinion, authored by Justice Neil Gorsuch, the Supreme Court held that cities may enforce public camping bans whenever they choose. The decision in Grants Pass overturned the 2018 Martin v. Boise decision that had previously protected unhoused residents from these ordinances. The court reasoned that the responsibility of addressing the homelessness crisis ultimately lies with state and local governments, echoing “states’ rights” arguments made in the fallout of the Civil War.
The Court’s decision in Grants Pass carries enormous consequences. The most immediate impact is that local governments will be given the green light to criminalize the nation’s unhoused population, encouraging the repeated displacement and exclusion of unhoused residents rather than the development of proactive solutions. Cities have already begun to adopt such policies, with major cities like San Francisco and New York offering subsidized bus tickets to neighboring cities and states. The San Francisco police department told The Guardian that giving free bus tickets was considered a “win-win” because each unhoused person who left was “one less call for services.” In an interview conducted by The Guardian, the director of the Southernmost Homeless Assistance League in Key West, Florida, said that raising money to pay for bus tickets for the unhoused was easy because it allowed them to “ship our homeless problem to somebody else.”
In some jurisdictions, most notably Grants Pass, Oregon, the exclusion has been even more abrasive. In a 2013 meeting, a councilwoman in Grants Pass said that the city’s “goal is to make it uncomfortable enough for [unhoused people] in our city so they will want to move on down the road.”
In its Grants Pass ruling, the Supreme Court allowed jurisdictions to move forward with these policies unopposed, eliminating legal protections once afforded to millions of the nation’s unhoused. Whereas before unhoused people had the option of Martin injunctions as recourse if cities attempted to arrest them, now they are left exposed to legal prosecution. The Supreme Court is unlikely to revisit the question any time in the near future, so for the nearly 800,000 unhoused Americans, there is no refuge in the courts.
Nor is there refuge in most local governments. As jurisdictions have struggled to tackle the homelessness crisis amid rising housing costs, cities are opting to simply kick the problem down the road. As Michael Bloomberg — mayor of New York City from 2002 to 2013 — put it, exclusion “saves [the] taxpayers of New York an enormous amount of money.” Additionally, many of the policies that would address rising housing costs at the local level are consistently derailed by the “not in my backyard” mentality. Suburban landowners concerned about the depreciation of their homes often lobby against the construction of affordable housing in their neighborhoods, making it increasingly difficult and more expensive to begin new housing projects.
The nation’s unhoused also won’t find relief from the federal government. Although the Department of Housing and Urban Development spends billions every year on development, the excessive regulatory framework in place causes government-constructed housing to cost nearly double the price at which the private sector can build it. Additionally, since zoning laws, urban planning, and property rights are primarily determined at the local level, the federal government lacks the power to address the systemic origins of homelessness. Furthermore, with trillions of dollars of debt, the federal government is struggling to fund basic programs like Medicaid and Social Security, much less provide relief for unhoused Americans. It appears that state governments alone hold the power to meaningfully assuage the housing crisis.
In fact, several states have used their power to do just that. In 2021 the state of Oregon, for instance, passed the “Homelessness & Public Space Law,” which prohibits local governments from adopting public camping bans that are “objectively unreasonable.” This has rekindled challenges to public camping ordinances, including the one found in Grants Pass. California has continued to invest billions of dollars to fight the homelessness crisis, with Governor Newsom releasing a model ordinance to be adopted by local governments that requires local officials to “provide and make every reasonable effort” to offer shelter before clearing an encampment. Hawaii proposed a bill last year that prohibits the penalization of public camping if there aren’t dedicated “safe zones” within five miles of the encampment.
America’s inability to feed and house the nation’s least well-off is not simply a byproduct of some policy misstep or a statistical embarrassment that reflects poorly on annual homelessness reports. It is a failure of governments to meet their ultimate goal: to provide for the welfare of their constituents. Strong social safety nets enable unhoused Americans to get back on their feet, and they help prevent the 26% of Americans living paycheck-to-paycheck from going underwater in the first place. When cities opt to kick out their unhoused populations in lieu of enacting real and lasting solutions, their “not my problem” just becomes the next town’s problem. This creates a runaway effect that leaves unhoused individuals in economic limbo, exacerbating their already-strenuous circumstances and making it harder for them to connect with existing social services.
In the wake of judicial deference and federal dysfunction, it is imperative that states and cities continue to leverage the power granted to them by the Supreme Court to explore and adopt innovative solutions to the looming housing crisis. The sooner cities and states relinquish their “not my problem” posture and recognize the homelessness crisis for the unrelenting problem that it is, the sooner we can collectively work to put an end to the devastating status of homelessness that so many Americans face every day.
