Podcast Summary: "Cruel and Unusual" – What Trump Can Teach Us About Con Law

Podcast: What Trump Can Teach Us About Con Law
Host: Roman Mars
Professor: Elizabeth Joh
Episode: "Cruel and Unusual"
Release Date: August 14, 2024

Episode Overview

The episode explores the constitutional dimensions of homelessness policy in the United States, following the Supreme Court’s recent decision in Grants Pass v. Johnson. Using the lens of the Eighth Amendment's protection against "cruel and unusual punishments," Professor Elizabeth Joh and Roman Mars discuss how the legal system grapples with anti-camping laws, their enforcement, and what it means to criminalize poverty. They trace the evolution of this legal debate from the 1962 Robinson v. California case to the present, highlighting the challenges faced by cities, the legal reasoning of the Court, and the implications for homeless populations going forward.

Key Discussion Points & Insights

1. The Historical Foundation: Robinson v. California

• Case Background: In 1960, Lawrence Robinson, a Black Army veteran, was convicted in California for the "status" of being addicted to narcotics, with no proof of current drug use. The Supreme Court overturned this conviction, ruling that punishing someone for their status, rather than conduct, violates the Eighth Amendment.
  • Joh: “No state should be able to punish someone for their status, even if that status was drug addiction, because it could be, in the Supreme Court’s words, contracted innocently or involuntarily.” [02:02]

2. Homelessness Policy and Legal Challenges

• Rise of Homeless Encampments: The pandemic exacerbated urban homelessness; official guidance discouraged breaking up encampments, worsening the crisis—especially on the West Coast.
• Anti-Camping Laws: Cities have laws banning camping and sleeping in public, using fines or jail as deterrents. Enforcement varies:
  • Joh, defining “camping” laws: “[It] might be defined as setting up a campsite...for the purpose of maintaining a temporary place to live.” [06:59]

3. The Martin v. City of Boise Precedent

• Ninth Circuit's Reasoning (2018): Held that it was unconstitutional to criminally punish homeless individuals for sleeping in public when no shelter beds were available, analogizing it to Robinson.
  • Mars, summarizing the analogy: “Being homeless is not a thing that they can necessarily control. Therefore being punished for it is cruel and unusual.” [10:05]

4. The Grants Pass v. Johnson Case

• City’s Policy: Grants Pass, Oregon, enforced an anti-camping law, fining and eventually jailing repeat violators, with about 600 homeless people in a city of 38,000.
• Legal Challenge: Homeless plaintiffs argued that enforcement punished them for the status of being homeless, violating the Eighth Amendment—especially when no shelter was available.
  • Joh: “The 8th Amendment and Lawrence Robinson’s case did not allow the city of Grants Pass to enforce its camping ordinance.” [14:30]
• Complex Landscape: After the Martin decision, confusion reigned in Western courts over what counted as adequate shelter and who was “involuntarily homeless.” Judges issued inconsistent rulings, cities faced legal uncertainty, and enforcement practices varied.

5. The Supreme Court’s Grants Pass Decision (June 28, 2024)

• Majority Opinion (Justice Gorsuch):

  • The Eighth Amendment only applies to the method or severity of punishment after conviction; anti-camping laws regulate conduct, not status, and thus are outside its scope.
  • Gorsuch, as summarized by Joh: “Policymakers need access to the full panoply of tools in the policy toolbox... five years ago, the Ninth Circuit took one of those tools off the table.” [19:20]
  • The law in Grants Pass is about actions (camping), not the mere status of being homeless (unlike Robinson, which criminalized "being an addict").
  • Analogized Grants Pass to Powell v. Texas (1968), where the Court allowed criminalizing public drunkenness, distinguishing it from punishing the status of being an alcoholic.
  • Joh: “Anti-camping laws are just like that Texas law... prohibit actions undertaken by any person, regardless of status.” [22:19]

• Dissent (Justice Sotomayor, joined by Kagan and Jackson):

  • Argues these laws effectively target and punish people for being homeless, since only those with no choice but to sleep outside are prosecuted.
  • Joh: “If we look beyond the literal words... these laws were passed, [and] who’s enforcing them, we can see they’re specifically designed to punish homeless people who happen to be sleeping in the parks or on the sidewalks.” [23:53]
  • Mars: “Everyone knows that it isn’t the backpacker or the young kid... it really is just for homeless people.” [24:59]

6. Consequences and Legal Aftermath

• Impact on Cities: After Grants Pass, local governments have wide discretion; they can enforce, ignore, or adapt anti-camping policies as they see fit.
  • Joh: “They can use persuasion or they can use arrests... after the Grants Pass case, the decision is left entirely up to cities, counties, and states.” [27:53]
• Discussion of Vague Laws: Sotomayor hints at possible future "due process" challenges, such as laws being void for vagueness if regular people can’t understand or comply, potentially opening new constitutional arguments.
  • Joh: “If an ordinary person can't figure out how to avoid violating an ambiguously worded law, well, that means that there's a risk that the police could arrest anybody for any reason or maybe no reason at all.” [28:48]

7. The Human Dimension – Robinson’s Fate

• Story of Lawrence Robinson: Despite his foundational case, Robinson died before the Supreme Court issued its ruling. The Supreme Court chose to let the case stand, cementing its status as a key, if rarely revisited, Eighth Amendment precedent.
  • Joh: “Robinson was found dead... 10 months before the Supreme Court issued its opinion... the Supreme Court denied the petition [to vacate] and Robinson ended up living on as an important opinion.” [30:50]

Notable Quotes & Memorable Moments

• On the Legal Nature of Status and Conduct:

  • “The majority in Grants Pass says... the law in Robinson’s case was punishing the fact that Robinson was an addict. Nothing that he was actually doing at the time he was arrested. But the law in Grants Pass... doesn’t focus on the status or the fact of being homeless. They simply state that there are acts that you can’t engage in. And that makes all the difference, says the Supreme Court.”
    — Elizabeth Joh [21:40]

• On Real-World Enforcement:

  • “Everyone knows that it isn’t the backpacker or the young kid... that is getting moved off of a public spot, especially if they’re a white young kid. It really is just for homeless people.”
    — Roman Mars [24:59]

• On Judicial Philosophy:

  • “If we’re really going to have a Supreme Court that says, well, if there’s a law that punishes acts, what we really need to do is look at how it’s enforced to see whether it’s punishing status. That would really open up a lot of challenges to every kind of criminal law.”
    — Elizabeth Joh [25:16]

• On Local Control and Responsibility:

  • “That’s the silver lining to this, is that placing this back into the local community and for them to assess their values and really realize what they’re doing here and not rely on whatever these strictures of law that they feel like their hands are tied—now they know that they’re not.”
    — Roman Mars [33:59]

Timestamps for Major Segments

• [00:35] – Introduction to Robinson v. California
• [03:55] – Modern context: Homelessness policy, pandemic
• [09:06] – Lawsuits against anti-camping ordinances: Martin v. Boise
• [10:36] – The Eighth Amendment’s text and its interpretation
• [14:30] – The Grants Pass case specifics
• [17:00] – Political and legal complexity on the West Coast
• [19:40] – Supreme Court’s reasoning in Grants Pass decision
• [22:19] – Majority’s analogy to Powell v. Texas, not Robinson
• [23:52] – Sotomayor’s dissent and focus on real effects
• [27:53] – Aftermath: What cities can do now
• [28:48] – Potential for future challenges on “vagueness”
• [30:50] – The legacy and personal story of Lawrence Robinson
• [33:59] – Discussion of local politics, discretion, and hope for humane solutions

Tone and Style

The conversation is accessible, inquisitive, and empathetic. Roman Mars acts as an engaged, layman “student,” while Professor Joh offers clear, story-rich legal analysis. Both speakers frequently reflect on the real-world consequences of abstract legal rules and the narrative nature of constitutional law.

Summary Takeaway

This episode illuminates how the legal distinctions between “status” and “conduct” shape the rights of homeless individuals and the powers of local governments. With the Supreme Court’s Grants Pass decision, the balance of policy and enforcement decisively shifts back to local hands—leaving hope, concern, and ongoing debate about justice, discretion, and the potential for future legal challenges. The show ultimately highlights the human stories and legal intricacies at the heart of ongoing struggles around the Eighth Amendment and American urban life.