City of Grants Pass v. Johnson: The Cruel and Usual Punishment of Homelessness
Published April 16, 2026
By Amar Kassa
In the city of Grants Pass, Oregon, one can find 600 unhoused people and zero public homeless shelters (1). Paradoxically, the municipal code contains anti-sleeping, anti-camping, and park exclusion ordinances to minimize the visibility of their homeless population (2). In 2019, the 8th Circuit Court used the lack of sufficient shelter for the city’s homeless population as justification to overturn the Grants Pass municipal code, ruling that it violated the Cruel and Unusual Punishment Clause of the 8th Amendment to criminalize sleeping outside when some or all of the homeless population must necessarily do so. But in 2024, the Supreme Court overturned this by 6-3 decision in favor of the city of Grants Pass. They cited a lack of evidence for cruel and unusual punishment by drawing a distinction between criminalizing a conduct generally performed by the homeless and criminalizing the state of homelessness in itself.
The majority’s insistence on differentiating status from conduct owes to an oft-overlooked component of the 8th Amendment, the fact that it makes criminalizing any status unconstitutional. In this way, the amendment has championed society’s most marginalized: drug users, poor people, and – at least before Grants Pass v. Johnson (2024) – the homeless. Protection from status criminalization was reinforced by Robinson v. California (1962), which exonerated a California man charged under an anti-addiction statute by finding it cruel to outlaw a condition, such as suffering from narcotic abuse (3). The court established a relationship between a status and its symptoms, no matter how undesirable they may be. As Justice White later said, “if addiction as a status may not be punished, then neither can the yielding to the compulsion of that addiction” (4). Extrapolating that logic, we can assume that if homelessness may not be punished, neither can the obligations of homelessness (i.e., sleeping in public); and that was, in fact, how the law was generally interpreted toward homeless people before Grants Pass. When being homeless is legal, but behaving like a homeless person is prohibited, it begs the question of how one could do the former without transgressing the latter. The care taken by Justice Gorsuch in the majority opinion to delineate conduct from status in this case only betrays the court’s knowledge that the two are intrinsically linked.
When discussing the unhoused in the context of legal punishment, we must take care to oppose in the strongest terms the framing of homelessness as a crime. Even without the precedent of Robinson v. California which explicitly prohibits it, there are myriad other reasons that penalizing homelessness amounts to cruel and unusual punishment, as well as a criminalization of status. Justice Gorsuch disagrees, claiming that issuing fines or short-term sentences are not methods of punishment which meet the constitutional standard for barbaric or unusual (5). Of course, such fines prove impossible to pay when all one’s expenses are dedicated to survival, demonstrating their unusuality in the context of the group they’re applied to. According to the Centre for Homelessness Support, homeless people given grants used them on transport fees, childcare, phone bills for communication, and gym memberships where they could find dependable showers (6). But even if one sets aside the fact that homeless peoples’ limited cash flow is depleted by these primary needs before fines can be thought of, we must acknowledge the barbarity of the use of fines by law enforcement as a punitive measure against the poorest among us, rather than a uniform enforcement regardless of class. As Justice Sotomayor points out in the minority opinion, “you don't arrest babies who have blankets over them. You don't arrest people who are sleeping on the beach” (7). Additionally, cruelty can be argued for the criminalization of sleep in particular, which cannot be opted out of by any human being and had previously been treated by the Court as an involuntary act. “Sleeping is a biological necessity,” Justice Kagan adds to the minority opinion. “I wouldn't expect you to criminalize breathing in public” (8).
The Grants Pass decision effectively minimizes the scope of the 8th Amendment, which also prohibits citizens from being charged excessive bail, and after conviction, is all that stands in the way of prisoners being at the mercy of their jailers. Stripping away protections against the cruel treatment of our most vulnerable groups leads quickly into similar assaults on us all. As contentious as the Cruel and Unusual Punishment Clause still is when enforced, it certainly can’t be considered a contemporary value. The first prohibition on “cruell and unusuall punishments” was in England’s 1689 Bill of Rights, almost a century before the United States’ Constitution was ratified (9). The limitation of its power in recent years, after considerable expansions throughout such a long stretch of time, rings warning bells for the future.
Though the Supreme Court aims to stand apart from political influence, the social climate in which its decisions are made cannot be ignored. In 2018, the 9th Circuit Court had decided in Martin v. City of Boise that the 8th Amendment prohibits criminal penalty for camping in public as a homeless person without access to a shelter, a precedent which Grants Pass v. Johnson has effectively overturned (10). In the mere six years between the two decisions, overall homelessness in the U.S. has increased by 39% and first-time homelessness by over 23% (11). The Southern Poverty Law Center warned after the Grants Pass decision that criminalizing homelessness “at a moment in which housing is unaffordable for half the people in the country”, the highest rate ever recorded, puts the Supreme Court out of touch with the American people (12).
The ambiguous nature of the Cruel and Unusual Punishment Clause requires that it develop alongside “the sense of justice of the people”, according to court precedent (13). The general understanding is that societies naturally move towards clemency and humane treatment over time, well evidenced by the history of capital punishment (14). What legal argument is there then that the 8th Amendment should protect less, not more, than it did years ago? The homeless are an exponentially expanding underclass, especially from communities like the LBGTQ, disabled people, and mothers and children. The leading cause of first-time homelessness in the U.S. is rising unaffordability, an issue we can unfortunately all relate to, making the wellness of the unhoused increasingly pertinent to the average American (15). With increasing rollback on public programs, environmental protections, and welfare, the rollback of the 8th Amendment is a troubling thread among many.
1. Ludden, Jennifer. “Supreme Court appears to side with an Oregon city's crackdown on homelessness.” National Public Radio, April 22, 2024, https://www.npr.org/2024/04/22/1245575331/supreme-court-weighs-whether-cities-can-punish-unhoused-people-for-sleeping-outs.
2. “City of Grants Pass v. Johnson.” Oyez, www.oyez.org/cases/2023/23-175.
3. “Robinson v. California.” Oyez, https://www.oyez.org/cases/1961/554.
4. “Addiction, Alcoholism, and Homelessness under the Eighth Amendment.” Cornell School of Law, https://www.law.cornell.edu/constitution-conan/amendment-8/addiction-alcoholism-and-homelessness-under-the-eighth-amendment.
5. CITY OF GRANTS PASS, OREGON v. JOHNSON ET AL., ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, 603 U.S. 520 (2024), https://www.supremecourt.gov/opinions/23pdf/23-175_19m2.pdf.
6. “Groundbreaking study begins to reveal how £2,000 grant helps people escape homelessness.” Centre for Homelessness Impact, https://www.homelessnessimpact.org/news/groundbreaking-study-reveal-how-grant-helps-people-escape-homelessness.
7, 8. CITY OF GRANTS PASS, OREGON v. JOHNSON ET AL., ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, 603 U.S. 520 (2024), https://www.supremecourt.gov/opinions/23pdf/23-175_19m2.pdf.
9. Stevenson, Brian, and John Stinneford. “Interpretation: The Eighth Amendment.” Constitution Center, https://constitutioncenter.org/the-constitution/amendments/amendment-viii/clauses/103.
10. “Martin v. City of Boise.” Fines and Fees Justice Center, April 1, 2019, https://finesandfeesjusticecenter.org/articles/martin-v-city-of-boise/.
11. Soucy, Daniel, et al. “State of Homelessness: 2025 Edition.” National Alliance to End Homelessness, September 4, 2025, https://endhomelessness.org/state-of-homelessness/.
12. Figueroa, Ariana. “U.S. Supreme Court sides with Oregon city, allows ban on homeless people sleeping outdoors.” Oregon Capital Chronicle, June 28, 2024, https://oregoncapitalchronicle.com/2024/06/28/u-s-supreme-court-sides-with-oregon-city-allows-ban-on-homeless-people-sleeping-outdoors/.
13. Cruel and Unusual Punishment: The Death Penalty Cases: Furman v. Georgia, Jackson v. Georgia, Branch v. Texas, 408 U.S. 238 (1972), 63 J. Crim. L. Criminology & Police Sci. 484 (1972)
14. “The History of the Death Penalty: A Timeline.” Death Penalty Information Center, https://deathpenaltyinfo.org/stories/history-of-the-death-penalty-timeline.
15. Soucy, Daniel, et al. “State of Homelessness: 2025 Edition.” National Alliance to End Homelessness, September 4, 2025, https://endhomelessness.org/state-of-homelessness/.