Four years ago, I wrote about the Ninth Circuit’s decision in Martin v. City of Boise. In that case, a panel of three Ninth Circuit judges ruled that the Eighth Amendment’s prohibition on “cruel and unusual punishment” meant that Boise could not criminally prosecute homeless individuals for camping on public property if Boise lacked a sufficient number of shelter beds for the homeless.

This issue is now back before the U.S. Supreme Court with some unlikely support: Governor Gavin Newsom (D – California), San Francisco Mayor London Breed, and the City of Los Angeles.

But, first, a refresher on the Ninth Circuit and Martin. The Ninth Circuit has 28 active judges and many senior judges. Absent rare circumstances, an appeal to the Ninth Circuit is heard by three judges who are active, senior, or visiting from another court. In rare circumstances, an 11-member “en banc” panel of active judges will hear the appeal.

In Martin, a majority of active judges did not vote for “en banc” review, so the panel’s decision became final. Boise asked the U.S. Supreme Court to review that decision, but the high court declined. Thereafter, the law of the land was Martin’s holding that:

so long as there is a greater number of homeless individuals in a jurisdiction than the number of available beds in shelters, the jurisdiction cannot prosecute homeless individuals for involuntarily sitting, lying, and sleeping in public. That is, as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.

Judges on the Ninth Circuit dissented to this ruling. They argued that this standard was unworkable because it required police officers to ascertain whether an individual camping on public property was doing so without any viable alternative. They also argued that the Eighth Amendment did not prohibit prosecuting people for public camping, regardless of why they were camping there.

Enter a new case: Johnson v. City of Grants Pass. Just weeks after the Ninth Circuit issued Martin, three homeless individuals filed a class-action lawsuit against the City of Grants Pass in Southern Oregon. Grants Pass has roughly 38,000 residents and between 50 and 600 homeless (yes, this seems like a bizarrely large range of possible homeless for such a small town).

The plaintiffs asked the courts to enjoin (prohibit from issuing citations) Grants Pass’ city ordinances that result in a civil fine up to several hundred dollars per violation. Persons found to violate the ordinances multiple times can be excluded from all city property. If a homeless person is found on city property after receiving an exclusion order, they are subject to criminal prosecution for trespass.

In a 2 to 1 decision, the Ninth Circuit ruled in favor of the plaintiffs. The majority read two U.S. Supreme Court cases—Robinson and Powell, discussed below—as recognizing this general principle about the Eighth Amendment: “a person cannot be prosecuted for involuntary conduct if it is the unavoidable consequence of one’s status.” To the Ninth Circuit, the “involuntary conduct” is sleeping on public property and the “status” is homelessness.

Grants Pass’ request for “en banc” review by the Ninth Circuit (review by 11 judges instead of by three) was denied. But it was an extremely close vote. Recall that to obtain en banc review, a case must get 15 votes (a majority of 28 active judges). Grants Pass received 14 votes for review—just one shy. (Note: there were actually 15 but one was a judge, Judge Diarmuid O’Scannlain, on “senior status” whose vote does not count toward or against en banc review.)

The judges who believed review by an en banc panel was appropriate wrote lengthy dissents, again like in Martin, arguing that the Eighth Amendment did not bar enforcement of anti-public-camping laws.

Grants Pass has asked the U.S. Supreme Court to review the Ninth Circuit’s decision and its request has some unlikely allies. California Governor Gavin Newsom, the City, County and Mayor of San Francisco, and the City of Los Angeles have all filed briefs supporting review of the case. They point out how unworkable the Martin decision is and how it has led to no enforcement of anti-public-camping rules.

Police departments lack the ability to conduct in-depth investigations into each individual to determine why they are camping and to determine if the individual truly has no other option but to sleep outside. And they are confused as to whether Martin has created a mathematical standard under which no homeless campers can be charged with violating anti-public-camping laws if the number of homeless in the city exceeds the number of shelter beds provided by the city or if Martin creates a standard that allows prosecution if a shelter bed is available and the camper refuses to utilize it.

The plaintiffs have until December 6 to file a response to the request for review. The U.S. Supreme Court decides whether to review a case during its “conference” days. The Court’s first conference day after the plaintiffs file is December 8. We could know as soon as that date whether the Court grants review. But it could be as late as January before the Court votes on review.

If the Court grants review, it will be tasked with determining the following question posed by Grants Pass: “Does the enforcement of generally applicable laws regulating camping on public property constitute ‘cruel and unusual punishment’ prohibited by the Eighth Amendment?”

The Eighth Amendment states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The emphasized portion is at issue. Whether the Ninth Circuit was correct or erred depends on two U.S. Supreme Court decisions interpreting the scope of the Eighth Amendment’s prohibition against cruel and unusual punishments: Robinson v. California (1962) and Powell v. Texas (1968).

Robinson v. California

Robinson dealt with a Los Angeles ordinance that made it a crime to possess, use, distribute or be addicted to narcotics. Only the emphasized portion of the law was at issue.

Police officers arrested and charged Robinson with being addicted to narcotics after they observed track marks and bruises on Robinson’s arms consistent with needle use and he admitted to the cops he occasionally used narcotics. The jury convicted Robinson of being addicted to narcotics.

The U.S. Supreme Court, by a 6-2 vote (one justice recused), ruled that the Los Angeles ordinance constituted cruel and unusual punishment because it criminalized a “status.” The Court began by noting that no one questioned the ability of states and cities to criminalize the possession, use or sale of narcotics, even if the person was involuntarily addicted. But the state cannot punish a “status.” The Court said:

This statute, therefore, is not one which punishes a person for the use of narcotics, for their purchase, sale or possession, or for antisocial or disorderly behavior resulting from their administration. It is not a law which even purports to provide or require medical treatment. Rather, we deal with a statute which makes the ‘status’ of narcotic addiction a criminal offense, for which the offender may be prosecuted at any time before he reforms. California has said that a person can be continuously guilty of this offense, whether or not he has ever used or possessed any narcotics within the State, and whether or not he has been guilty of any antisocial behavior there.

On a side note, to support its conclusion that the U.S. Constitution forbade states from criminalizing the “status” of a narcotics addict, the Court cited but one prior case: Louisiana v. Resweber (1947). In that case, the Court affirmed the execution of a defendant after the first attempt at execution of the defendant failed because no electricity flowed through the electric-chair. Resweber does not contain any discussion of the unconstitutionality of status-based crimes.

Nevertheless, Robinson was decided and it held that a narcotics addict could be punished for illegal behavior but could not be punished simply because of his status as an addict.

Powell v. Texas

Six years later, the Court heard Powell. There, Powell was arrested and charged with public intoxication, which violated city ordinance. At trial, Powell argued that he was an alcoholic who could not resist the compulsion to drink, and that Robinson made criminal prosecution of his conduct of public drinking violative of the Eighth Amendment because he could not control himself. The jury convicted Powell. The U.S. Supreme Court granted review and affirmed the conviction but splintered as to the reasoning.

Justice Thurgood Marshall, and three other justices, voted to uphold the conviction because Powell was convicted of conduct—being intoxicated in public—and was not convicted because of his status of being an alcoholic. Justice Marshall explained that the law did not punish a status because it was legal for Powell to drink in private; he simply could not do so in public.

Justice Byron White, who was one of the dissenters in Robinson because he believed the Eighth Amendment did not bar criminalizing drug addiction, concurred only as to result. He did not join Marshall’s opinion. Justice White argued that it was a mistake to analyze Powell’s conduct under Robinson because Robinson was wrongly decided.

But if Robinson was a correct interpretation of the Eighth Amendment, Justice White argued, then Powell could not be prosecuted for his uncontrollable urge to drink: “If it cannot be a crime to have an irresistible compulsion to use narcotics, I do not see how it can constitutionally be a crime to yield to such a compulsion.” This is the statement that sowed the confusion the Ninth Circuit is now reaping. Nonetheless, because he believed Robinson was wrong, Justice White voted to affirm the conviction because “Powell did not show that his conviction offended the Constitution.”

Four other justices (Fortas, Douglas, Brennan and Stewart) voted to reverse the conviction because Robinson compelled the conclusion that as a chronic alcoholic, Powell was not acting under his own volition when he ventured into public and drank.

Powell was a 4-1-4 plurality opinion. There were four votes to affirm the conviction because the conviction did not run afoul of Robinson and another vote to affirm because the Eighth Amendment did not prohibit punishing public intoxication whether the drinker was a chronic alcoholic or not. There were four votes to reverse because Powell was not voluntarily drunk in public but was there because he was a chronic alcoholic.

The Need for Clarification

Fast forward more than 50 years to the Ninth Circuit’s homeless camping decisions on Martin and Grants Pass. In these recent cases, the judges who voted to invalidate the anti-camping ordinances read Robinson and Powell as mandating that result.

In Martin, the majority noted that while Justice White affirmed the public-intoxication conviction, he stated in his opinion that wrongly-decided Robinson meant conduct compelled due to addiction could not be punished. Thus, the Martin majority concluded that “five Justices gleaned from Robinson the principle that the Eighth Amendment prohibits the state from punishing an involuntary act or condition if it is unavoidable consequence of one’s status or being.”

In Grants Pass, the majority followed the same reading of the fractured Powell decision. The dissenters in Grants Pass take the majority to task for using Justice White’s Powell opinion affirming the chronic alcoholic’s conviction for involuntary behavior as supporting the invalidation of laws that punish involuntary behavior of sleeping in public. In the end, a single Justice’s vote has spawned all this confusion.

This piece only scratches the surface of the disagreements between judges in Grants Pass. But, the deeply fractured Ninth Circuit shows one thing for certain: whether the Eighth Amendment prohibits states and cities from criminalizing behavior that flows from a person’s status as homeless is an open question the U.S. Supreme Court will have to eventually resolve.

If someone is homeless, is it unconstitutional to enforce anti-public urination and defecation laws? If someone is a chronic alcoholic, is it unconstitutional to charge them with public intoxication? If there are shelter beds open but a homeless camper refuses to leave his campsite can a city prosecute the camper if there are more homeless in the area than number of shelter beds? Can Justice White’s Powell opinion upholding the criminal public-intoxication conviction of an involuntarily inebriated man be faithfully read as actually prohibiting such a conviction? Does the Eighth Amendment even apply to what a state can and cannot make a crime (anti-vagrancy laws) or does it only apply to modes of punishment (death penalty for crimes not resulting in death, life sentence without parole for a criminal who is a minor)?

The federal judiciary currently disagrees on these fundamental questions. And as Governor Newsom’s, San Francisco’s, and Los Angeles’ support of review shows, everyone needs clarity on these legal questions.

Lee Baxter is a practicing Anchorage attorney. He provides periodic legal analysis for the Landmine in his spare time – when he is not fishing. He encourages prospective clients to first seek out a better attorney.