From the Cheap Seats: Liberating Local Government

A recent decision of the United States Supreme Court has important implications for localities in California trying to address the problem of homelessness. With a 6-3 majority in the case of City of Grants Pass v. Johnson the high court has made it clear that local governments have been liberated, free to enforce prohibitions against camping on the streets and other public property, even in the case of homeless individuals.

Prior to this decision communities in California were hamstrung in their enforcement of local ordinances by a 2018 decision in Martin v. Boise, a holding of the U. S. Court of Appeals for the Ninth Circuit that camping bans such as the one at issue in Grants Pass were in violation of the U.S. Constitution’s Eighth Amendment prohibition of “cruel and unusual punishment.” That mistaken holding is now a thing of the past.

The high court’s opinion contains the observation that “[h]omelessness is complex. Its causes are many. So may be the public policy responses required to address it. The question this case presents is whether the Eighth Amendment grants federal judges primary responsibility for assessing those causes and devising those responses. A handful of federal judges cannot begin to ‘match’ the collective wisdom the American people possess in deciding ‘how best to handle’ a pressing social question like homelessness.” That makes sense to me.

Local governments are now free to diligently enforce their ordinances in order to reverse the takeover of our streets, parks, and other public areas. The people of California have been clamoring for this relief. The growing scourge of dereliction and petty crime often associated with the homeless needs to end. Candidate rhetoric and talking points in the current campaign season make it clear that the issue has been and remains one of the top concerns among voters in this state.

Since the Martin v Boise decision in 2018 elected officials in California have succumbed to a variant of the “our hands are tied” syndrome. Instead of cracking down on petty lawbreakers they’ve offered housing, sometimes at ridiculous expense.  That’s meant that government “action” taken to solve the homeless problem has typically also meant increased funding for the “homeless industrial complex” – a list of non-governmental organizations which support the homeless population in their chosen lifestyle.  In some cases these are the same organizations assisting the illegals at our southern border crossings, providing them transportation and subsistence funding.

Homeless policy has been “all carrot, no stick.” Grants Pass now means that voters can demand a bit of “stick.” Elected officials would be wise to adopt that approach. The homeless population, as troubled as they may be, are not stupid. On the contrary, they adjust their behavior in response to incentives and disincentives. The growth of the homeless population in California since 2018 demonstrates quite well that they know how to “read the room.”

Grants Pass has occurred at an opportune time, in the early stages of the election season.  Voters will have the opportunity to demand of their candidates a clear statement of their policy disposition in the aftermath of the decision. Sound policy should offer helpful assistance to individuals who wish to overcome their circumstances while making it clear that anti-social behavior is unwelcome. Sound policy gives worthy individuals a hand up and encourages others to go elsewhere.

The other element that needs to be changed is the response of the law enforcement community. They have been inhibited by the belief that they are wasting their time.  Additional effort from prosecutors and courts will be needed to process what are sure to be a rising number of citations. Our county governments need to expand investment in those downstream institutions, at least for a while. 

It may take a degree of creativity to develop effective responses for repeat offenders, especially those who refuse first-line assistance. We must remember that the overwhelming majority of homeless suffer from mental illness and from abuse of drugs and alcohol. Putting people in jail is very expensive, is likely to be ineffective, and seems brutal treatment given the pathologies of homelessness.  

As much as anything else homelessness is a social problem and social pressure can be an effective part of the solution. It’s time to apply that pressure, with concern for the safety and welfare of our residents in mind, and with compassion for the homeless in our hearts.