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Friday, January 12, 2024
Camping ban case
A fascinating and potentially important case from the 9th circuit involving Oregon's so-called camping ban. Pits the wicked problem of homelessness in cities around the country with the capacity and efficacy of judicial intervention. The specific legal question is whether these restrictions reflect cruel and unusual punishment. Might seem like a stretch at first glance, but the opinions in the panel decision and, as well, Judge O'Scannlain's effort to convince the 9th circuit to hear the case en banc are carefully reasoned and worth a close read.
As with many contemporary issues of social policy, including housing policy, in its myriad dimensions, it seems hard to imagine the courts constructing a rubric that gives local governments clear guidance and assistance in dealing with problems that are hugely vexing, and given the magnitude of the homelessness crisis (not unrelated to the evolving situation involving migrants), quite urgent. Is this the best use of the federal courts, given the local nature of the problem? And, looking at this issue through an originalist lens, what true utility is the original public meaning of an amendment that could not well contemplate the problem to which these local anti-camping ordinances are directed?
I suppose the smart money is on a SCOTUS reversal. But what questions with the Justices asks and what opinion will the Court write to illuminate the complex issues involved and give shape to the question of the modern police power's utility and limits in a society with social divisions and civic problems?
Posted by Dan Rodriguez on January 12, 2024 at 06:30 PM in Daniel Rodriguez | Permalink
Comments
The constitutional issue ultimately is cruel and unusual punishment.
Robinson held that mere status (such as being sick) should not be deemed criminal. The Powell case showed the dividing line -- alcoholism is different from being drunk in public.
Some form of this might arise in the ultimate opinion. I think a good case can be made that the law involves an area that the federal courts should generally be wary of being involved with.
I think this ultimately IS an 8th Amendment dispute. Cruel and unusual punishment has procedural and substantive aspects. The specific concerns are more focused than a wider concern involving deprivation of liberty writ large.
The argument here is that there are homeless people and the locality does not have the means to care for them. They allegedly should not criminalize the "mere status" of being homeless in public. It's as if an alcoholic is only in public because there is no place for them to go.
This very well might have an 8th Amendment flavor while still being within the discretion of the local government. The Bill of Rights is not just something for the courts. It is a guideline for all of government.
I'm wary about this specific court taking this issue. Either way, the issue is just not that typical among 8A cases to be a good avenue to reconsider the whole enterprise. I think/hope for a narrow ruling.
Posted by: Joe | Jan 15, 2024 1:23:58 PM
Like Orin, above, my sense is that it is something of a category mistake to frame whatever the Constitution of the United States might have to say about local camping bans in terms of "punishment", which does not / should not refer generically to unpleasant/painful/burdensome/unfair results of government policy or state action.
Posted by: Rick Garnett | Jan 15, 2024 9:31:30 AM
Very interesting indeed.
On one hand, the eight amendment looks indeed pretty relevant. But, on the other, one should deal with both issues:
Whether it is punishment indeed, or even inhuman treatment ( and whether inhuman treatment, not withstanding punishment, is relevant or can be incorporated to the eight amendment. But not to forget. The US, is party to the convention against tortures and inhuman treatment indeed).
Also, the cities need to take care of alleged public health issues, caused by such huge concentrations of homelessness in their cities.
Courts can't order cities, to invest more or rather invest huge sums in providing shelters to homeless. It is up to the Congress and states to legislate, and solve such unfortunate and tragic situation.
Here to the convention:
https://www.ohchr.org/sites/default/files/cat.pdf
And here to Jacobson v. Massachusetts (one may argue, that the ruling may be very relevant by the way):
https://tile.loc.gov/storage-services/service/ll/usrep/usrep197/usrep197011/usrep197011.pdf
Thanks
Posted by: El roam | Jan 14, 2024 2:59:19 AM
"what opinion will the Court write to illuminate the complex issues involved and give shape to the question of the modern police power's utility and limits in a society with social divisions and civic problems?"
I hope they will clean up the law in this area, which seems like a mess: Robinson was a Due Process case that was written as an 8th Amendment case instead, and the contours of the law here have long been confused as a result.
As for writing an opinion illuminating the complex *policy* issues involved in this problem, I'm not sure I want the Justices to attempt to do that. As I understand the case, their only business is in interpreting the federal constitutional limits here: The Justices have no power beyond that, and I don't think we have a reason to believe that they have particular expertise or wisdom on the broader policy questions to impart.
Posted by: Orin Kerr | Jan 13, 2024 2:33:19 AM
Yes. When has the Supreme Court last shown much concern about enforcing the Eight Amendment's Cruel and Unusual Punishment Clause? Wary.
Posted by: Joe | Jan 12, 2024 9:15:55 PM
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