With foothills rising above, Boise, Idaho is a place of beauty. But it's the city's less scenic quarters, dead ends and back alleys that were Robert Martin's home, on and off, for 15 years. On nights when Boise's homeless shelters were full, Martin got sleep wherever he could. "There were times I've slept in garage stairwells, on cement, slept in rock, up under overpasses in the rocks and dirt," he said.
But in Boise, sleeping or camping on public property was against the law. Martin was one of many ticketed and fined for sleeping in public.
Howard Belodoff, of Idaho Legal Aid Services, saw a constitutional issue in Boise's camping ordinance, and made a federal case out of it. "Robert's case, I thought it was actually a vivid portrayal of the situation that homeless people find themselves in," Belodoff said. "Here's a guy, he has no place to sleep. He's been walking around all night because he's been warned you can't quote-unquote camp, which just means you can't have a blanket around you."
In 2009 in federal court, Belodoff filed a lawsuit that came to be known as Martin v. Boise, arguing that the city of Boise had violated the 8th Amendment of the Constitution's ban on cruel and unusual punishments, by leaving those without homes nowhere to legally sleep.
"It's 'cruel and unusual' in the true sense of the word," Belodoff said, "because every single one of us – rich, poor, old, young, male, female – they need to sleep."
Nine years later, the 9th Circuit Court of Appeals based in San Francisco agreed with Belodoff, writing it considered whether "the Eighth Amendment's prohibition on cruel and unusual punishment bars a city from prosecuting people criminally for sleeping on public property," and concluding "it does."
San Francisco's Mayor London Breed blamed Martin v. Boise for worsening the city's crisis. The court order bars San Francisco from clearing sidewalk encampments unless the city can guarantee a place to sleep for everyone it moves – a challenge in a city with more than 8,000 homeless and fewer than 4,000 shelter beds.
Nationally there is a lack of shelter beds; according to the HUD 2022 Annual Homeless Assessment Report, about 188,000 more people need shelter than there are beds available.
But the Martin v. Boise decision applies only to the nine Western states under 9th Circuit jurisdiction. In the rest of the country, 14 states have laws making it a crime to camp in public places, and 27 states have laws against vagrancy and loitering that can be used to move along those sleeping in public.
Those kind of laws have effectively been outlawed in 9th Circuit states.
"What the 9th Circuit has said is that a person can't be punished for being homeless if there aren't adequate shelter beds or places for them to go," said Erwin Chemerinsky, a leading constitutional scholar and dean of UC Berkeley Law School.
Blackstone asked, "The 8th Amendment prohibition on cruel and unusual punishment, we think of it as being applied to death penalty cases, for example. How can it be applied to homelessness?"
"In 1962, the United States Supreme Court said it's cruel and unusual punishment to punish somebody for a status," Chemerinsky said. "In that case, they said you can't punish somebody for being a drug addict; you punish them if you're taking drugs or possessing drugs, but not for the status of being addicted. Likewise, the federal court of appeals here has said, you can't punish somebody for the status of being unhoused."
Since the unhoused can't be denied a place to sleep, Mayor Kate Colin of San Rafael, California, is almost powerless to move the person living in a tent beside City Hall. Shelters here are usually full, which means this suburban city of 60,000 can legally do little about encampments on its streets.
"Every time we passed an ordinance, we were sued either immediately or within the time frame that that can happen," Colin said.
She said it is frustrating to explain to constituents that people camped on the streets cannot be moved: "People don't want to hear that San Rafael doesn't have the independent ability to work with our unhoused community," she said.
While many cities complain about Martin v. Boise, Grants Pass, Oregon, is doing something. The city appealed to the Supreme Court.
When the case was argued in April, advocates for the unhoused demonstrated outside the court, while inside, attorney Theane Evangelis (representing Grants Pass) urged the justices to overturn Martin v. Boise. She told the court: "It would be a disaster if Martin were to remain on the books in any form."
Evangelis said Grants Pass became central to the case after it was sued by a group of plaintiffs: "[They] claimed that it would be cruel and unusual punishment for Grants Pass to enforce its local camping ordinances."
The Supreme Court decision, expected this month, could impact homeless policy across the country,
Evangelis said, "All of us living here within the 9th Circuit have seen the effects firsthand of these decisions. And that's why if the Supreme Court were to agree with the 9th Circuit, those conditions would spread to the rest of the country. And that would be the opposite of solving this problem."
Dean Chemerinsky said, "On the other hand, I think there's such a compelling argument on behalf of what the 9th Circuit said, that you can't make something a crime if there's no alternative."
So, what is on the line in the Supreme Court's decision? Chemerinsky said, "For homeless people, the question is, are they gonna face criminal punishment because they have nowhere else to live? For cities, the question would be, what can cities do lawfully to deal with their unhoused population? And for the Constitution, the question is, what's this gonna mean for the 8th Amendment?"
Robert Martin no longer lives on the streets, but his thoughts remain with those who still search for places to sleep: "Being homeless should never equate to an unlawful act," he said. "Being homeless is an unforeseen and an unfortunate circumstance."
For Howard Belodoff, the attorney who started it all, the case is not only about the rights of the homeless, it's also about their humanity. "They feel so powerless, 'cause nobody listens and nobody cares," he said. "For the first time they feel like they're a person and they're recognized."
For more info:
- City of Grants Pass, Oregon v. Johnson (SCOTUSblog)
- Idaho Legal Aid Services
- Erwin Chemerinsky, dean of UC Berkeley Law School
- Kate Colin, Mayor of San Rafael, California
- Attorney Theane Evangelis
Story produced by Chris Weicher. Editor: Ben McCormick.
See also:
- Inside Houston's successful strategy to reduce homelessness ("Sunday Morning")
- Addressing the ordeal of homelessness ("Sunday Morning")
- Homelessness on campus ("Sunday Morning")
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