High court addresses punishments clause

GRANTS PASS, Ore. — Welcome to Grants Pass, a city of 38,000 that grew weary of people sleeping or camping on public property.

Grants Pass is before–you guessed it–the Supreme Court of the United States, having lost in–you guessed it again–the San Francisco-based United States Court of Appeals for the Ninth Circuit.

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Here’s what happened, according to the petitioner’s brief, filed by Grants Pass.

“Like municipalities across the country, Grants Pass protects public health and safety by regulating the public’s ability to camp or sleep in its outdoor spaces, including parks, trails, and sidewalks.

“Grants Pass has adopted three ordinances related to public sleeping and camping. The first prohibits sleeping ‘on public sidewalks, streets, or alleyways at any time as a matter of individual and public safety.’ The second prohibits ‘(c)amping’ on ‘any sidewalk, street, alley, lane, public right of way, park, bench, or any other publicly-owned property or under any bridge or viaduct.’ … And the third prohibits camping specifically in the (c)ity’s parks.

“The (c)ity enforces these ordinances with fines that start at $295, with reductions for violators who plead out and increases for repeat violations. If a person has twice been cited for violating park regulations within a one year period, city officers have authority to issue an exclusion order barring that person from a city park for 30 days. A person who camps in a park after receiving such an order commits criminal trespass, which is punishable by a maximum of 30 days in jail and a $1,250 fine.”

The respondents assert, and the Ninth Circuit agreed, that the Grants Pass law violates the Eighth Amendment’s Cruel and Unusual Punishments Clause.

The amendment reads in full: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Grants Pass continues.

“By its plain terms, the Eighth Amendment’s Cruel and Unusual Punishments Clause prohibits certain methods of punishment: those that are ‘cruel and unusual.’ But the Ninth Circuit has held that the (c)lause forbids governments from imposing any punishment–not fines, not short jail terms, not anything–for camping on public property when such conduct flows from the purported status of being involuntarily homeless. That holding defies the Eighth Amendment’s text and history, as well as this Court’s precedent.

“The text itself exposes the Ninth Circuit’s error in reading the Eighth Amendment to regulate the substantive scope of criminal responsibility. The Amendment states that ‘(e)xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’ Nothing in that language immunizes certain conduct from all forms of punishment.

“The Amendment’s three clauses set limits on bail, fines, and punishments. They do not prescribe which conduct governments may deem unlawful in the first place.”

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The respondents disagree. They make their essential point clearly and succinctly in their first paragraph: “In an effort to force its homeless residents into other jurisdictions, the (c)ity of Grants Pass, Oregon, decided to aggressively enforce a set of ordinances that nominally prohibit camping, but in reality make it unlawful for homeless people to sleep or rest anywhere on public property at any time with so much as a blanket to survive the cold, even if they have no access to shelter. The plan was to inflict fines and jail time on the (c)ity’s homeless residents until they were ‘uncomfortable enough’ that they left Grants Pass.”

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Maybe Grant’s Pass’s way of handling what it calls its sleeping and camping problem is the right way. Maybe it’s not.

Yet you, faithful reader of this column, understand from previous columns that whether the Grant’s Pass law at issue violates the Eighth Amendment is a different question.

A Supreme Court decision is expected by June.

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Randy Elf has been to Oregon, and it’s a beautiful state.

(c) 2024 BY RANDY ELF


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