Legal Docket: A place to sleep

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JENNY ROUGH, HOST: Jennifer McDaniel felt helpless as paramedics worked to save her boyfriend, a guy named Tomaz.

JENNIFER MCDANIEL: They pumped on his chest, and I was just watching them.

ROUGH: Tomaz had overdosed.

MCDANIEL: Crack. Crack cocaine.

ROUGH: McDaniel has been homeless for much of her adult life— at one point, living on the streets with Tomaz.

MCDANIEL: We were homeless in Georgia. Sleeping on park benches, walking around. … That was one of the scarier times.

ROUGH: They scrounged gas stations for free food.

MCDANIEL: And you can go in there and get a little tiny cup like this big. You can taste their chili or you can test out their soup. And we would go there and get a bunch of crackers. And that's all we had during the day was a little tiny paper cup of chili. And then we started panhandling.

ROUGH: McDaniel spent her money on French fries. She didn’t do drugs. Tomaz did—and it was the last thing he did.

MCDANIEL: And he's, I don't know how he was doing it, but he blew his lung out. And he actually flatlined on the way to the hospital. … And then … they told me to go down the other way, because I was just sitting there bawling my eyes out.

ROUGH: After Tomaz died, McDaniel returned to her home … Oregon. A small city tucked in the Rogue Valley: Grants Pass.But despite the miles … she wound up in much the same place … this time with a homeless man named Joe. At one point they lived in an SUV parked at Riverside Park.

It wasn’t just the two of them. McDaniel’s sister lived in the car with them.

MCDANIEL: And her three kids. And my mama. … And three dogs. … One was Fatso, Buster, and Princess. … Me and Joseph in the front seat, my mom and two of the kids in the middle, and my sister and her little baby … and the dogs … in the back.

ROUGH: Riverside Park was a place that had become a flashpoint in the city’s effort to address homelessness. Legal controversy around the policy would land Grants Pass at the epicenter of a U.S. Supreme Court case last year.Grants Pass had put in place anti-camping laws … banning people like McDaniel from sleeping outside in public, including the tent cities that had sprouted up in Riverside Park and others.

It also prohibited what she was doing, sleeping in cars on public property. Something McDaniel says is hardly a luxury:

MCDANIEL: My legs had swelled so big they were leaking. So I had really big wounds on my whole leg. Both my legs were this big. You can’t be homeless and not have health problems.

ROUGH: It’s Monday, the 21st of July.Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Jenny Rough.

NICK EICHER, HOST: And I’m Nick Eicher. Time now for Legal Docket.

Policymakers in Grants Pass said the bans were meant to promote public health and safety. The theory was that the threat of fines and jail time would steer the homeless into services and shelters … like the Gospel Rescue Mission.

BRIAN BOUTELLER: Last year, we had a pretty low amount of people come through our program. I had like 375 people come through.

EICHER: Brian Bouteller is the executive director of the mission in Grants Pass.

BOUTELLER: And here’s the thing. A third of those people that came into our program left with a sustainable income and a home. I got a third of them out of homelessness.

EICHER: But because of the laws … homeless people ran for the courthouse instead. Lawyers corralled a group of them into a class-action lawsuit. Their claim was that the anti-camping bans ran afoul of the Eighth Amendment’s cruel-and-unusual-punishment clause. Cruel and unusual, they said, because the laws essentially punished them for sleeping outside, and sleep is a biological necessity.The court ultimately held the limited fines and jail time were not cruel and unusual. And whether the “outside” part was a necessity wasn’t an Eight Amendment question. So it found no constitutional violation and upheld the bans.

Today, we unpack that decision … and find out what’s happened in the year since.

ROUGH: Let me acknowledge the full story has two big pieces. Law and policy. Today, we focus on the law.I made a reporting trip to Grants Pass last April … right before the Supreme Court heard oral argument in the case. Being there made it easy to see why the city passed these laws.

Before I even got to Riverside Park, three locals warned me: Leave nothing visible in the rental car. Lock the doors. Theft is commonplace. The moment I stepped into the parking lot, the stench of marijuana smoke filled the air.

At first glance, I only saw Riverside Park’s beauty. Ponderosa pines soared. The redbuds were in bloom. Ducks waddled along the banks of the Rogue River. But it was otherwise eerily empty. The playground, abandoned. Parents no longer brought their kids because of drug deals and disorderly conduct. The disc golf course had been taken over by about 30 tents, two porta potties, and everywhere you looked, garbage.

RACHEL: They call this stuff outside our tents rubbish.

ROUGH: Rachel considers it treasure, not trash. She lived in a green tent on a small hill.

RACHEL: It’s actually our life’s belongings. And if they don’t like how we have it, they’ll throw out our whole tents.

ROUGH: Rachel said she didn’t do drugs … but it was hard to believe. She did admit substance use was widespread in the camp. Alcohol, meth—

RACHEL: You have fentanyl … and that’s just taken a toll on a lot of the younger ones … because they don’t have nothing to look forward to. There’s nothing to look forward to anymore, it’s like ho-hum. Why work so hard when we’re not going to get nothing from it.

ROUGH: She said living there gets even more stressful when the weather turns cold. The Gospel Rescue Mission right down the street had empty beds and warm blankets. But Rachel wouldn’t pay the price.

RACHEL: You have to stop smoking, drinking, cigarettes, everything. Any controlled substance. … You can’t just cut people off like that and expect them to cope.

ROUGH: Every few days, she had to move. Law enforcement came through to make sure all people in the tents regularly cleared out. The Ninth Circuit had issued a temporary injunction that prevented the city from fully enforcing the anti-camping bans until the case was ultimately resolved.

GORSUCH: When it comes to homelessness, which is a very difficult problem, you’re saying

ROUGH: Eleven days after my trip to Grants Pass … I was inside the Supreme Court for the arguments—nowhere near the complicated reality on the ground. And that reality is far more than merely finding a place to sleep. The shelters are there with empty beds. But to the extent they’re rejected, the rejection is of structure and accountability.

EICHER: If the place of the court is to get into the muck, its job is to get into the muck of the law and constitutional principles. For example: The broad question of whether the camping bans are legal. And generally, when it comes to criminal laws like these, states are free to tailor them.

JOHNSON: States have a lot of latitude to define criminal liability however they want.

ROUGH: Joel Johnson is an attorney formerly with the Department of Justice, and now teaches at Caruso School of Law. He filed a friend-of-the court brief in the case. He says an Eighth Amendment challenge in the Grants Pass case may seem odd. Because—

JOHNSON: —the Eighth Amendment had been thought to apply only to issues related to what type of punishment could be imposed after someone had been found guilty of a crime.

ROUGH: Like methods of execution in death-penalty cases.

JOHNSON: It had not been previously understood to put limits on the front end of what could be made criminal in the first place.

EICHER: And generally, it’s still thought of as limiting types of punishment, not types of crimes. But there’s this odd Supreme Court case from 1962, Robinson versus California. A California state law made it a crime to be addicted to narcotics.Defendant Robert Robinson was an addict who was arrested under the law. But he said it violated his Eighth Amendment right … it was cruel and unusual punishment because it would force him to quit drugs cold turkey in jail.

Johnson says this novel argument was probably due to nothing more than sloppy litigation.

JOHNSON: The Robinson’s-lawyer strategy seemed to have been just throw spaghetti at the wall and see what sticks. There’s about a dozen different arguments for why that California addiction law was unconstitutional. And the Eighth Amendment argument … looked like a throwaway argument.

ROUGH: The argument that made more sense? A Fourteenth Amendment one. That says no state shall deprive a person of life, liberty, or property without due process of law. That was also one of Robinson’s strands of spaghetti.But back in 1962, the Fourteenth Amendment was more limited than it is today.

It’s always encompassed procedural rights … meaning everybody has a right to a “fair” trial.
But throughout the Supreme Court’s history, some justices had flirted with extending it also to mean substantive rights … rights that aren’t expressly listed in the Constitution. They’re inferred.

EICHER: Quick word on procedural vs. substantive due process: Think football. Procedural due process is like instant replay—did the receiver have control of the ball? Did the officials follow the rules? Substantive due process asks whether the rule itself makes sense—why does a slight bobble on the ground erase an otherwise obvious catch? Procedural due process judges the replay. Substantive due process judges the rulebook.For that reason, it’s controversial.

JOHNSON: That label is often associated with culture war cases, like the abortion cases, gay marriage cases.

EICHER: It’s still a hot topic. And a pet peeve of conservative justices, especially Clarence Thomas.But substantive due process isn’t only a question in culture-war cases. It’s broader than that. It comes up in criminal law cases, too.

JOHNSON: It’s simply asking the question whether a law that purports to deprive someone of life liberty or property is justified by a sufficient purpose? In other words, at a minimum, there can’t be an arbitrary purpose.

ROUGH: But in 1962, the court had not yet held that. So although the debate bubbled up during the Robinson case, the Court simply was not ready to adopt it.So to justify striking down the law making drug addiction a crime, the Court pulled another argument from the mess of defenses:

JOHNSON: Here’s this random piece of spaghetti on the wall, Eighth Amendment, let’s go that route.

EICHER: The court held that arresting Robinson amounted to cruel and unusual punishment. Not because it would require him to quit drugs cold turkey, as he’d argued. But because punishment for a crime has to be tied to a person’s conduct … like buying, possessing, or selling drugs. Not a person’s status … like simply existing as a drug addict.So that’s why the plaintiffs in the Grants Pass case brought the Eighth Amendment claim. They relied on Robinson to say they were being punished for their status.

The Supreme Court didn’t buy it. Justice Neil Gorsuch wrote the 6 to 3 opinion. The Eighth Amendment is about methods of punishment. He said the anti-camping bans were generally applicable laws that target conduct.

So in that sense, he confirmed the basic principle of Robinson—criminal laws do need to be tied to conduct. But he noted that the Eighth Amendment was a “poor foundation” for that principle. He suggested it would make more sense to bring challenges to anti-camping bans under a due-process theory.

Justice Sonia Sotomayor brought that up in her dissent:

JOHNSON: Near the end she draws attention to the fact that the majority left open this possibility of due process protection in these circumstances. … It makes it pretty clear that the Court would at least be open to some further arguments under a due process theory.

ROUGH: And in the year that’s passed, that’s exactly what’s happened.According to the National Homelessness Law Center, since the Supreme Court’s decision, 150 cities across 32 states have passed anti-camping laws.

EICHER: California alone accounts for about a quarter of the nation’s homeless population. That state in particular has seen a surge in local bans. And right on their heels, another round of litigation … and arguments like it’s a due process violation when the law bans things the homeless consider survival gear, like blankets and tents.

ROUGH: And in Grant’s Pass? Bouteller of the Gospel Rescue Mission says he’s still less than half full. An Oregon law that requires cities to make “objectively reasonable accommodations” has made clearing the camps difficult. We’ll come back to the issue of homeless people being so deeply addicted that they want to choose death over what could be life in Christ.

Grants Pass begins to force the issue—removing the option of camping in public spaces. For Jennifer … she chose the shelter.

MCDANIEL: I don’t ever want to be homeless again. … I don’t want to be cold. I don’t want to be scared. I don’t want to be not being able to rest. I want to be able to be productive and give back to people that I know pour their love into me, I want to pour love into others like God tells us to. Love others.

ROUGH: Bouteller told me he’s not heard from Rachel.

BOUTELLER: It’s really hard for the average person to get their head around. … We just think, well, if I were in that situation … I would want to come in. … This is not what’s happening here. … Sin’s not rational. … I keep hoping that if we tell the story long enough … that people will want to come … and go, maybe I can change. Maybe there’s some hope for me.

ROUGH: And that’s this week’s Legal Docket.

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