Attempting to get rid of its homeless residents, the City of Grants Pass began punishing them for being in public with as little as a blanket to protect themselves from the elements. Among other things, the city’s ordinances make it illegal to be found on public property with any “material used for bedding purposes.” There is no exception for people who have no shelter. That’s because the city’s goal, as one official explained, is to make it “uncomfortable enough” for homeless people to remain in the city that they will be forced to go elsewhere. The Ninth Circuit held that enforcing the ordinances against people who do not have access to shelter violates the Eighth Amendment, which prohibits “cruel and unusual punishments.”

CAC filed an amicus brief at the Supreme Court explaining why Grants Pass’s ordinances violate the original meaning of the Eighth Amendment. As we show, the Amendment protects against disproportionate punishment that exceeds an offender’s culpability. And inflicting any punishment is disproportionate when people literally have no choice but to commit a prohibited offense.

The principle that punishment must be proportionate to an offense dates back to the Anglo-Saxon era in England and was eventually enshrined in the Magna Carta. Centuries later, this common law safeguard was reasserted in the 1689 English Declaration of Rights, from which the Eighth Amendment was borrowed almost verbatim. The English version of this provision reaffirmed the proportionality rule in response to notorious criminal sentences that were outlandishly severe in relation to the crimes at issue. By deliberately adopting the language of the English provision wholesale, the American Framers incorporated into the Constitution the same protection from disproportionate punishment.

As we further explain, even if the Framers had drafted the Eighth Amendment from scratch, its plain text prohibits punishment that is out of proportion to a person’s culpability. Founding-era dictionaries defined “cruel” and “cruelty” as exceeding standards of restraint and afflicting people “without necessity.” The word “unusual” had the same meaning as today: “not common.” The Founding generation read these two words in the Eighth Amendment as a unit, expressing a single idea: punishment that is uncommonly cruel. That reading aligns the Cruel and Unusual Punishments Clause with the Eighth Amendment’s other limits on “excessive” fines and bail. Text and history therefore corroborate what Supreme Court precedent has long recognized: the Eighth Amendment prohibits punishment that exceeds the severity of a crime.

Finally, as precedent also recognizes, inflicting any punishment is unconstitutionally excessive when a person literally cannot avoid conduct that the government has made illegal. Nothing prevents Grants Pass from enforcing its ordinances as a general matter, but it may not punish people who physically cannot avoid violating those ordinances because they have nowhere else to go. The Supreme Court should affirm the Ninth Circuit and hold that Grants Pass’s attempt to banish its homeless residents violates the Eighth Amendment.