Punishing poverty: The Supreme Court’s criminal approach to homelessness

As Justice Sotomayor put it in her powerful dissent, “Sleep is a biological necessity, not a crime.”

Teresa was one of the first unhoused individuals I met during fieldwork in Orange County for my dissertation at the University of California, Irvine. She is an elderly, disabled widow who lost her RV when law enforcement impounded it due to unpaid fines. When she finally scraped together enough money to reclaim it, she couldn’t because she lacked adequate identification.

In her younger days, Teresa appeared on TV game shows and owned a restaurant in her rural Northern California hometown. When I met her in 2019, after losing her son and husband, she lived alone on the street and struggled with addiction, yet maintained a warm, high-spirited personality. Her story starkly illustrates how punitive policies render the mere act of surviving a crime.

The Supreme Court decision in Grants Pass v. Johnson marks a troubling shift. By ruling in favor of Grants Pass, the majority has sanctioned criminalizing homelessness, allowing cities to penalize individuals for sleeping in public spaces even when no shelter is available. This decision overturns a Ninth Circuit ruling, which held that anti-camping ordinances violate the Eighth Amendment’s prohibition against cruel and unusual punishment.

This spring, along with 57 social scientists, I co-authored an amicus brief to the Supreme Court. It distills what our collective research shows: criminalizing homelessness does not reduce its incidence but has the opposite effect. It creates a cycle of arrest, incarceration, and release without addressing underlying issues that lead to homelessness.

By permitting punitive policies such as fines and arrest, the decision dismisses the conditions underlying homelessness, such as the widespread lack of affordable housing, insufficient mental health and addiction services, and economic inequality. Instead of addressing these root causes, the ruling exacerbates the problem by pushing people who are struggling further into the margins of society.

In the majority’s opinion, Justice Gorsuch asserts that the Ninth Circuit’s decision in Martin v. Boise “limited the tools available to local governments for tackling” homelessness. However, my research in Orange County shows that local governments use their police powers to banish the unhoused rather than help them out of homelessness.

The decision also threatens to derail efforts to tackle homelessness with humane, effective public policy. In California, strides have been made. Over the last three years, California has served 25 percent more individuals experiencing homelessness and added over 30,000 beds. These strides are often invisible to the public because the crisis is so massive that any gains are, by comparison, hard to detect.

My own research has addressed this disconnect: the public sees their money being invested in solving an issue they do not see improving and are rightly frustrated. However, these individuals are often the same ones ready to protest creating affordable housing, permanent supportive housing, or shelters in their neighborhoods. We cannot have it both ways. We either want to solve homelessness—understanding that housing is the only solution—or we don’t. Unfortunately, this ruling empowers municipalities to revert to punitive measures supported by many public officials, like California’s Governor Gavin Newsom who submitted a brief which supported the arguments made by Grants Pass.

Given these challenges, it is crucial to advocate for state-level solutions that create housing for unhoused individuals, including those unable to pay for it. We should push for legislation that ensures access to housing and policies that mitigate the consequences of having no home. Policies that perpetuate poverty and racial inequity are not a solution to our housing problem. Housing is.

Teresa’s story epitomizes the failure of criminalizing homelessness. As Justice Sotomayor put it in her powerful dissent, “Sleep is a biological necessity, not a crime.” Teresa’s only infraction was trying to survive. We must do better, and that begins with providing housing, not handcuffs.

Deyanira Nevarez Martinez is an Assistant Professor of Urban and Regional Planning at Michigan State University and a UCLA Latino Policy and Politics Institute Faculty Expert. She has authored several studies on homelessness in California.