Cruel and Unusual

Summary

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

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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.

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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]

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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]

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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

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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.

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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.

Transcript

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[Roman Mars]

So today is Thursday, August 8th, at about 11:00am what are we going to be talking about?

[Elizabeth Jo]

All right, well, let's go back to 1960.

[Roman Mars]

Okay.

[Elizabeth Jo]

On a cold night in February, two officers from the Los Angeles Police Department pulled over a green 1947 Nash driven by Charles Banks. Now, Charles was sitting in the front with his wife normally. And in the backseat Sat 25 year old Lawrence Robinson, a black army veteran. He was sitting with a lady friend of his. Now, the police officers didn't observe any criminal acts from the four people, but they did order Robinson to roll up his sleeves. And the police later testified that they saw what appeared to be numerous needle marks and a scab on his arms. And Robinson admitted that he'd used narcotics two weeks before. But it was those needle marks that led to Robinson's arrest. And In June of 1960, a jury convicted Robinson for violating the state's health and safety code. California made it a crime, a misdemeanor, to be addicted to the use of narcotics. And the judge had instructed the jury that they could find Robinson guilty if they agreed that he held the status of being a narcotics user. And Robinson was then convicted and sentenced to 90 days in jail. But he appealed this conviction all the way to the supreme court. And in 1962, the Supreme Court decided that Robinson's conviction was unconstitutional. The court noted that no state would make it a crime to be mentally ill, a leper, or to be afflicted by a venereal disease. And there was no difference with California's law making it a crime to be addicted to narcotics. 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. So Robinson's conviction was reversed. On July 25, 2024, California Governor Gavin Newsom issued an executive order telling state agencies to clear what he called dangerous homeless encampments on state land. Cities and counties in California were encouraged to do the same. What's the connection between Lawrence Robinson's arrest and this shift in policy that's emerging not just in California, but many parts of the West Coast? A lot, it turns out, because of the Supreme Court. Time to find out.

[Roman Mars]

Let's do it. This is what Roman Mars can learn about Con Law. An ongoing series of indeterminate length and sporadic release where we look at the vague notion of what is cruel and what is unusual and use it to examine our constitution like we never have before. Our music is from Doomtree Records, our professor and neighbor is Elizabeth Jo, and I'm your fellow student and host, Roman Mars.

[Elizabeth Jo]

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[Roman Mars]

And so what is officially camping in a public place?

[Elizabeth Jo]

So a law might say that you can't camp on public property. And then camping might be defined as something like setting up a campsite, which is any place where bedding, sleeping bags, or other material used for bedding purposes, or any stove or fire is placed for the purpose of maintaining a temporary place to live. So a city could use this kind of law, which might impose fines or even jail time, as an incentive to persuade people living in these encampments to leave, to accept social services, or to accept offers of shelter. So the idea is leave or else. And many cities have adopted a kind of multi step process to clear these encampments. They might say, look, in 48 hours, we're going to clear the encampments, we're going to have city workers offer social services and shelter, and we're going to help you bag up your things so they're not lost or stolen. But in other cities, clearing an encampment just means heading directly to enforcing these anti camping laws and arresting people. So, roman, sounds like an easy solution to an easy problem.

[Roman Mars]

Yeah, it's terrible. It's not an easy problem. There are no easy solutions except for giving people houses, which is. It's a simple solution, but it's complicated in how you enact it.

[Elizabeth Jo]

Yeah. And so all of the cities, especially on the west coast, have struggled with what to do. One of those cities is grants passed. And grants pass is a small town in southwestern Oregon with a population of about 38,000. And grants pass has an anti camping law like the one I've just mentioned. And the city decided to enforce this law against its homeless population. There are about 600 homeless people there, so it's large for the amount of people who live in the city. The first violation results in a fine, and then later citations can eventually lead to people being arrested and eventually jail time. Now, grants passed had been relying on these laws pretty aggressively for at least five years When a group of homeless people filed a lawsuit in federal Court against the city in 2018.

[Roman Mars]

So what was the basis of their lawsuit?

[Elizabeth Jo]

Well, the plaintiffs and Grants passed had a very good chance of winning their case when they filed it. And that was because the ninth circuit, that's the federal appeals court covering the west coast, had decided a very similar case just six weeks before.

[Roman Mars]

That's the Idaho one, right?

[Elizabeth Jo]

Yeah, that's right. That earlier case was called Martin vs City of Boise. And the Martin case also involved a lawsuit brought by a group of homeless people in Boise that challenged that city's enforcement of its anti camping laws. Just like in Grants Pass, it's a crime to camp in public spaces in the city of Boise. Now Boise did have emergency shelters for the homeless, but there was not enough bed space for everybody who needed a bed on any given night. And in the Martin case, the plaintiffs argued that arresting the homeless for anti camping laws violated their constitutional rights. They relied primarily on the case of Lawrence Robinson. So can you see the analogy they're making here?

[Roman Mars]

Well, like in Robinson, being homeless is not a thing that they can necessarily control. Therefore being punished for it is cruel and unusual.

[Elizabeth Jo]

That's exactly right. I mean, remember in Robinson, the Supreme Court said, look, this is about the state trying to punish somebody for their status, who they are, and you can't do that. And in Robinson's case, the Supreme Court specifically said in 1962 that if you criminalize the status of being an addict, that violates the eighth amendment. So Roman, why don't you read the amendment?

[Roman Mars]

Oh yes, I love this part. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

[Elizabeth Jo]

Now in Lawrence Robinson's case, the Supreme Court said that enforcing this addiction law violated his eighth amendment right to be free from cruel and unusual punishment. Now this ban on cruel and unusual punishments is a pretty colorful but not very clear phrase. Right. So what exactly does that mean? Well, it's not. You don't really have a ready answer for every situation. The death penalty, for instance, is a form of punishment that in general is not considered unconstitutional. But there's so many other kinds of things that are punishments. Justice Gorsuch has said that 18th century methods like disemboweling, quartering, public dissection and burning alive would surely be considered cruel and unusual under the Constitution. That's not too helpful either because Robinson's conviction is not similar to any of these things. And in fact, the court in Robinson's case didn't object to the method of his punishment. Remember, he just got a 90 day jail sentence. Instead, the Court said criminalizing his status violated the 8th amendment. So really they're saying that the very idea of making this a crime is what is unconstitutional. So Robinson vs. California is an unusual case because of the way in which it's decided. And the Supreme Court hasn't shown much interest in developing this idea further after Robinson's case, but it remains a Supreme Court decision. And it is Robinson vs. California that the federal appeals court relied on in the Martin case to decide that the city of Boise could not constitutionally enforce its camping law in a specific situation when there are more homeless people than beds available in shelters. So that gives Boise two options. Either you stop enforcing your anti camping law under these conditions or increase the number of shelter beds so every homeless person could get off of the streets. Those are hard options for any city.

[Roman Mars]

And the idea here is that if you are punishing someone for sleeping outside, but there is no other place for them to go, then that is cruel. Like, what are they leaning on in this?

[Elizabeth Jo]

You know, I think that you've gotten to the core of it, that if you have nowhere to go because there's no available shelter beds, how can the state punish you because you're there involuntarily, you're sleeping on the street through no choice of your own.

[Roman Mars]

I'm just trying to find what word in this amendment they're latching onto that it's particularly cruel, that it's unusual, that it's excessive, you know. What you mean? I don't know.

[Elizabeth Jo]

Well, they're not. That's kind of the problem. They're relying on the 1962 case, that's Robinson versus California, where the Supreme Court in that case said, well, it's cruel and unusual to punish someone for their status. And, and so the ninth Circuit says, well, this is also punishing someone for their status of being involuntarily homeless.

[Roman Mars]

So it's building on an argument. So they're really focusing on the idea of status established in that other case, not necessarily on what's being spoken in the amendment itself.

[Elizabeth Jo]

Exactly. And so the appeals court is not saying that homeless people have the right to particular beds or that any city has to guarantee beds to people. Really what they're saying is that if the city is going to arrest folks for these anti camping laws or sleeping on the sidewalk, they have to have this realistic choice of having a shelter bed available. You don't have the choice of a particular bed or a particular shelter, but you have to have some access to a shelter. So the Martin case is a huge decision, it sets the law for all of the west coast states. Now let's go back to Grants Pass.

[Roman Mars]

Okay.

[Elizabeth Jo]

The Grants Pass case was filed because of the Martin decision. And it goes a little bit farther. The federal court decided that every homeless person was involuntarily homeless because there were not enough shelter beds for the entire population. The 8th Amendment and Lawrence Robinson's case did not allow the city of Grants Pass to enforce its camping ordinance. So we've just talked about two cities, Boise and Grants Pass. But after the Martin decision, there was a lot of uncertainty and confusion about whether and how city, cities and counties on the west coast could enforce their laws and clear these homeless encampments. Or maybe they couldn't at all. So after these cases, there were many, many lawsuits filed and many judges imposed injunctions or judicially ordered pauses on the enforcement of anti camping laws in places like San Francisco and Los Angeles. But the problem was that each time there were small variations about what counted as an available shelter or an adequate shelter so that cities could enforce their laws in ways that didn't violate the Eighth Amendment. So for instance, in 2020, a federal judge said that adequate shelters meant that shelters needed certain features like nursing staff who could provide Covid tests and OnSite Security. In 2022, a federal judge ordered the city of San Francisco not to enforce its anti camping laws. But the decision left unclear how the city was supposed to determine who was involuntarily homeless and who was daily basis. And you can imagine that's hard to do, Right. Not everyone cooperates. It's not clear who really has access to a shelter or who doesn't.

[Roman Mars]

Yeah. And I don't even know if I know how to define who a voluntarily homeless person is.

[Elizabeth Jo]

I mean, that's right. That's right. It's really hard to do. So these decisions raise a very simple question, right? Do these people have the right to be here? But the answers from all of these different courts were complex, sometimes somewhat inconsistent, and very hard for cities and counties to comply with. It was no surprise that the Supreme Court decided to review the case of Grants Pass. And the Supreme Court issued its decision In Grants Pass vs. Johnson on June 28, right at the end of its term. Now, before the Supreme Court takes up its case, I want to just pause for a moment on the issue itself. The politics of this issue are pretty complicated, don't you think?

[Roman Mars]

Yeah, because as you've stated, the most sort of intense pressure when it comes to homelessness and interacting with communities is in the west, where There's a lot of liberal folks who run things who want to take care of the homeless, but also know that this is not a thing that is tenable. If encampments get bigger and bigger and bigger.

[Elizabeth Jo]

That's right. And then the folks who are bringing lawsuits are advocates for the homeless or civil rights organizations also considered progressive or left. So this isn't a kind of neat right left divide. You know, you have a very complicated set of decisions that have to be made, and the alignments are not what you would necessarily expect. And for some of the federal judges, it was a very personal issue. Here's what one federal appeals court judge said in the Grants Pass lawsuit. Before the case went to the Supreme Court, this judge said, assume you are a police officer and you encounter a homeless person in some public place, say San Francisco's Civic center near the James R. Browning Building where our court sits. Assume further that the person has set up a tent and engaged in activities like defecation and urination on the sidewalk nearby. Under Martin, you are powerless to cite this person even for public defecation because San Francisco has fewer shelter beds than total homeless persons. In fact, a very large number of cities, states and counties filed briefs asking, begging the Supreme Court to take the case, not just from the west coast, but also from places all around the country because they wanted some clarity on what was permitted and what was not. Now, some of these local governments asked the Supreme Court to overturn the Grants Passed case, but others, like California's Governor Newsom, simply filed a brief asking for clarity. He wasn't asking for any side in particular. He just said, please make clear what we can do in ways that are constitutional, respecting the rights of the people in these encampments, but allowing the cities to do something about the problem. Justice Gorsuch wrote the majority opinion in Grants Pass, and I think you can understand Gorsuch's point of view from just two sentences from the opinion. He says policymakers need access to the full panoply of tools in the policy toolbox to tackle the complicated issues of housing and homelessness. Five years ago, the U.S. court of Appeals for the Ninth Circuit took one of those tools off the table.

[Roman Mars]

So what's the reasoning behind his opinion?

[Elizabeth Jo]

Well, there's sort of two major points in the majority's view. The 8th Amendment, the one that bans cruel and unusual punishments, has nothing to do with local governments using anti camping laws as one of its methods to address home homeless encampments. Remember, as you pointed out, the 8th Amendment talks about cruel and unusual Punishments. We typically think of that as what happens after conviction. And the majority in Grants Passed says, well, that's the main focus of the eighth Amendment. And the problem with the lawsuit in Grants Pass is that it isn't really focused on the punishment at all. It's a lawsuit about the criminal law itself. The punishment afterwards, which could include civil fines, exclusion orders and then jail sentences, it's just not that severe or strange. It doesn't seem cruel and unusual in the slightest.

[Roman Mars]

And so what does this mean for the Robinson case, the addict case?

[Elizabeth Jo]

Well, the people who challenged the anti camping law in Grants Passed said, look, this is exactly like Lawrence Robinson's case. Robinson was being punished for being an addict and we're being punished for being homeless. That's unconstitutional. But the majority in Grants Pass has a very simple response to this. Let's take a look at the law in Robinson. The state of California had made it a crime to be addicted to the use of narcotics. The law that's challenged in the Grants Pass case says you can't occupy a campsite on public property for the purpose of maintaining a temporary place to live. Sir Roman, can you see how these laws might be considered pretty different?

[Roman Mars]

Well, they seem entirely different. It's hard to find similarities actually in some ways. I mean, to me the most obvious one is this kind of nebulous idea of being addicted to something versus the action of actually putting down a bed and a stove and things like that. They just seem like completely different things to be able to measure and control.

[Elizabeth Jo]

That's exactly how the majority sees it. The majority in Grants Pass says, look, 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, which is similar to almost every anti camping law around the country, 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 and Grants Pass. And that's why these laws are constitutional. Now the Supreme Court doesn't overrule Robinson's case. It just says Robinson has nothing to do with these anti camping laws at all.

[Roman Mars]

Interesting.

[Elizabeth Jo]

And in fact, the Supreme Court says that Grant's past case is much closer to another case it decided shortly after Robinson. It's a case called Powell vs Texas. Leroy Powell had been convicted in Texas of the crime of getting drunk or being found in a state of intoxication in any public place. Powell argued to the Supreme Court that he was just like Lawrence Robinson. He was an addict. He was, he was an alcoholic. So Texas was punishing him for his status, and that violated his Eighth Amendment rights. But in 1968, just six years after Robinson's case, the Supreme Court decided that even if Powell could not help what he was doing because he was an alcoholic, Texas was not punishing him for being an alcoholic. Texas was punishing the very specific act of being drunk in public. So a very different case from Robinson's. And so Texas could constitutionally punish Leroy Powell. And so in Gorsuch's view, anti camping laws are just like that Texas law. Here's what the majority in the Grants Pass case said. The public camping laws prohibit actions undertaken by any person, regardless of status. It makes no difference whether the charge defendant is currently a person experiencing homelessness, a backpacker on vacation, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building. It's sort of like everybody has a right to sleep under the bridges kind of idea.

[Roman Mars]

Or everyone doesn't.

[Elizabeth Jo]

Or everyone doesn't. Right. So the dissenters, of course, did not see any distinction. Justice Sotomayor wrote a dissent that was joined by justices Kagan and Jackson. And Sotomayor says, look, for some people, sleeping outside is really the only choice they have. And the fact that the anti camping laws literally punish acts rather than status is not really the point. Sotomayor points out that if we look beyond the literal words, if we see why these laws were passed, who's enforcing them and what they say when they're 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. These laws are designed to only target the people who don't have a choice to live anywhere else. Nobody else, not the backpacker, not the person who just happens to have a pillow in the park. These are not people who are arrested. And so for Sotomayor, the Grants Pass law, like all of these other anti camping laws, are really laws that truly target the status of homelessness. And that's what makes them unconstitutional in the dissenter's mind.

[Roman Mars]

Hmm. I'm convinced of that because we both, I mean, like, everyone knows that it isn't the backpacker or the young kid, like, that is getting moved off of a public spot, especially if they're a white young kid. It really is just for homeless people.

[Elizabeth Jo]

I think that's right. I think the problem is that because of the way that the court has decided this area of the law that there's only this one sort of outlier case, Lawrence Robinson's case. And they've never really revisited and means that they never really liked that case ever since. They don't really want to overrule that case. But 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.

[Roman Mars]

Yeah, sure, yeah.

[Elizabeth Jo]

That's not a place where the court wants to go.

[Roman Mars]

No foreign.

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[Elizabeth Jo]

Prices and participation may vary.

[Roman Mars]

So after the Grants Pass decision, like what happens now then?

[Elizabeth Jo]

Well, what it really means is that state and local governments now are free to enforce their anti camping laws, anti sleeping on the sidewalk laws. If they want to use these as tools to clear homeless encampments, they don't have to enforce these laws. They can really do whatever they want. They can continue to offer shelter and services. They can do nothing if those offers are refused. But after the Grants Pass case, the decision is left entirely up to cities, counties and states. They can use persuasion or they can use arrests. And so that's what we're starting to see already. So in San Francisco, Mayor London Breed has already announced that the city will take more aggressive steps after the Grants Passed decision. She's told the city's police officers that they can cite homeless people for illegal camping if they refuse offers of shelter. That was something that they couldn't do before this case. Right. She also announced that police will enforce laws that ban sitting or lying down on sidewalks. I assume that would. Wouldn't be enforced evenly. Probably only enforced against people who appear to be homeless.

[Roman Mars]

In no way would that be enforced evenly.

[Elizabeth Jo]

So that's the clear consequence of the Supreme Court stepping in. There's no longer any confusion. It's absolutely clear that each city, state or county can do whatever it likes. There is a separate issue that comes up, I think, not having to do with cruel and unusual punishments. When you think about what it means for cities and counties after Grants Pass, this is a decision about local governments, but it's also a policing decision, too. Because when you think about the carrot and stick approach that's been used in the case of homeless encampments, well, getting people off the streets is often a matter of incentivizing people or saying, well, the police are going to arrest you. So you can think of Grants Pass as a Supreme Court case that also grants more powers in the case of policing. Because if the police can enforce these laws, not just anti camping laws, but laws that ban sitting and lying down on sidewalks, they have more tools in general at their disposal. I think one of the problems, though, is that these laws are notoriously vague and broad. And that means they have the potential to be used in ways that might be considered arbitrary or discriminatory or unevenly enforced. Now, this kind of concern doesn't have a place in the cruel and unusual punishments area of the law, but there is some possibility that someone might bring up a claim that, well, maybe these laws are unconstitutionally vague. I can't really understand how to comply with these laws. 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. I bring this up because Justice Sotomayor, who writes the dissent in Grants Pass, suggested, look, we're just deciding the 8th amendment claim here today, but there's some possibility that there could be a due process claim here as well.

[Roman Mars]

And what does she mean by that?

[Elizabeth Jo]

What she means by this is somebody could raise a due process claim that these laws are called void for vagueness, they're unconstitutionally vague, and they could be potentially struck down on a different basis.

[Roman Mars]

I see, I see.

[Elizabeth Jo]

So it's just kind of like raising a little hint to future lawsuits potentially that might be raised and how she.

[Roman Mars]

Might rule on those.

[Elizabeth Jo]

Yeah, and let me go back with a coda about Lawrence Robinson. Remember him? Robinson was found dead in a Los Angeles alley, probably of an overdose in August of 1961. That was 10 months before the Supreme Court issued its opinion in his case. It's not clear whether Robinson's lawyer was hiding the fact that or didn't know that his client had died. Now, then the Supreme Court issued its actual opinion in Robinson vs. California in 1962. And after they discovered that Robinson was dead, California's Attorney general asked the Supreme Court to vacate its decision because it was moot, no longer relevant because Robinson was dead. The Supreme Court denied the petition, and California vs Robinson ended up living on as an important opinion, an opinion on the Eighth Amendment that Justice Gorsuch would describe in 2024 as a notable exception.

[Roman Mars]

Wow, what a story. I mean, this is one of the things that I just like. You know, it only came to the revelation after we started talking, but just like law school is just stories. It's just, it's so cool.

[Elizabeth Jo]

It is stories.

[Roman Mars]

Yeah. It's so amazing.

[Elizabeth Jo]

I mean, one of the things that's really amazing about constitutional law is we always hear about these big name lawyers that argue these cases. But so many of the most important cases start out with the most ordinary kind of situations and ordinary people, and through luck and happenstance, their case is the one that becomes the case that is cited for decades.

[Roman Mars]

Yeah, yeah. I am very sympathetic and mostly I'm like on the Sotomayor team on all things, and I follow her line of thought most of the time. One thing that this does bring to mind, though, is the nature of policing is there is definitely a bad side for it being discretionary and vague. But there is kind of an upside to that as well, because if the community standard for what the cops do and how we hold our elected officials who control the police in some way responsible, that sentiment could trickle down in a good way too, right?

[Elizabeth Jo]

Oh, absolutely. I mean, discretion is not 100% bad. Police discretion can mean that police can be understanding in situations that technically call for a citation or arrest. I mean, we shouldn't think of police discretion as some sort of evil. I think the problem is police discretion only comes up in legal cases and goes up to the Supreme Court when there have been bad uses of discretion. Right. When you have policing that is just targeting a group or saying, look, look, we're just going to arrest these people because they're the unpopular people in the city or the community. And that's if the Supreme Court's ever worried about police discretion. Those are the situations where it arises. But you're right. I mean, even with what's happened after Grant's Pass, there have definitely been cities on the west coast that reacted to the Supreme Court decision and said, look, that's what they said. But we're not changing our position. We're still going to offer shelter and social services. We, we're not going to use policing in an aggressive way to punish these folks. So in a way, you might say that this is a decision about sending it back to local communities and deciding what to do. So that leaves a lot in the hands of local folks to decide how they want to address this. And that can be using the tools of policing as a backup or using it in the first place. And that's what I think will concern some people.

[Roman Mars]

Yeah, I mean, 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 kind of rely on whatever these strictures of law that they feel like their hands are tied now they know that they're not. And maybe it causes them to be more charitable and maybe it causes them to think more holistically about the problem. I would have, you know, some hope that the better angels of their nature would come through when they realize that they have this power to really destroy someone's life. And maybe they just choose not to. And that would be really, really great.

[Elizabeth Jo]

I hope that's right. I mean, I hope that cities go in the way that is in the opposite direction of what we saw in Grants Pass, which was basically, say, a decision before the lawsuit that we're just going to get rid of these people and we're just going to start arresting them left and right. And that's not what you want to see. We want to see some other more humane approach and hopefully more communities will adopt that.

[Roman Mars]

Yeah. Well, good. I mean, I don't know. I don't know if I'm extremely hopeful, but at least there's something there for people to take charge of this and for people who are aware of this to know that now they actually have the local control to make those decisions and provide those services and solve the problem in a specific way related to that community. I think that, you know, I don't know, we should take on that responsibility.

[Elizabeth Jo]

Yeah, that's right. It's definitely back in our hands now.

[Roman Mars]

This is fascinating stuff. Elizabeth, thank you so much.

[Elizabeth Jo]

Thanks, Roman. Good to be with you.

[Roman Mars]

This show is produced by Elizabeth Jo, Isabel angel and me, Roman Mars. It's mixed by Hazik Ben Ahmad Fareed. Our executive producer is Kathy Tu. You can find us online at learnconlogy. All the music and what Roman Mars can learn about Con Law is provided by Doomtree Records, the Midwest hip hop collective. You can find out more about Doomtree Records, get merch and learn about who's on [e-mail] we are part of the Stitcher and SiriusXM podcast family.

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[Elizabeth Jo]

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