Civil and Human Rights

RELEASE: Ignoring constitutional history and original meaning, conservative majority allows city governments to punish people for sleeping in public even if they have nowhere else to go

WASHINGTON, DC – Following today’s decision at the Supreme Court in City of Grants Pass v. Johnson, a case in which the Court considered whether city ordinances that punish homeless people for sleeping in public impose “cruel and unusual punishment” in violation of the Eighth Amendment, Constitutional Accountability Center Deputy Chief Counsel Brian Frazelle issued the following reaction:

Once again, the Court’s conservative supermajority has demonstrated its willingness to construct false historical narratives to serve its preferred outcomes, no matter what the historical evidence shows.

With less than a page of analysis, today’s majority claims that the Cruel and Unusual Punishments Clause was adopted only to prevent methods of physical torture that had already fallen out of use before the Bill of Rights was ratified. Relying on a handful of out-of-context quotations while ignoring the centuries-long history behind the Clause, the majority simply refused to confront the compelling evidence that the Clause was originally understood to require that punishment be proportionate to an offense—in other words, as preventing punishment from exceeding an offender’s culpability.

That understanding of the Clause has also been central to the Court’s precedent for more than a century. Faithfully adhering to this history and precedent would have led to the conclusion that any punishment is unconstitutionally excessive when a person literally cannot avoid doing what the government has made illegal, as when a homeless person with nowhere else to go is punished for sleeping in public.

Side-stepping history, precedent, and reality, the conservative supermajority pretended that this was a case about what kinds of conduct the government may criminalize. It was not. No one argued that cities cannot ban sleeping in public as a general matter, just that punishing a person who literally has nowhere else to sleep is cruel and unusual. By blessing that practice, the Court’s decision risks incalculable damage not only to homeless individuals but also to one of our most important constitutional safeguards.



Case page in City of Grants Pass, Oregon v. Johnson:

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