ACLU Brief Urges Supreme Court to Uphold Eighth Amendment Protections in Grants Pass v. Johnson

CONTACT: ACLU of Washington, [email protected]  

WASHINGTON — The American Civil Liberties Union and ACLU affiliates in 18 states, including Washington, submitted a friend-of-the-court brief today in Grants Pass v. Johnson, arguing that the Eighth Amendment’s prohibition on cruel and unusual punishments does not allow cities to issue fines or arrest people for sleeping outside in public when they have no access to adequate shelter.  

Grants Pass v. Johnson involves an Oregon town that passed ordinances barring people from sleeping outside in public using a blanket, pillow, or even a cardboard sheet to lie on. Last year, the Ninth Circuit Court of Appeals ruled that criminally punishing unhoused people violates the Eighth Amendment “if there are no other public areas or appropriate shelters where those individuals can sleep.” The decision reaffirmed the 2019 ruling in Martin v. Boise, a similar case involving a camping ban in Boise, Idaho.  

The ACLU’s amicus brief argues that the original intent and meaning of the Eighth Amendment squarely protects unhoused people from the cruel and unusual punishment of being arrested or fined for simply existing.  

“There is no punishment that fits the ‘crime’ of being forced to sleep outside. Arresting and fining unhoused people for simply existing is anathema to the respect for human dignity that the Supreme Court has long recognized is at the core of the Eighth Amendment’s protections,” said Scout Katovich, Staff Attorney with the ACLU Trone Center for Justice and Equality. “Cities should focus on proven solutions, like safe, accessible housing and voluntary services, instead of saddling people with fines, jail time, and criminal records that only serve to keep people in homelessness for longer.” 

“The practice of issuing fines or arresting someone for sleeping outside ultimately destabilizes people and communities, and can result in prolonged homelessness,” said Jazmyn Clark, Smart Justice Policy Program Director at ACLU-WA. “Unhoused people will have no choice but to sleep unsheltered in public if we fail to provide safe, affordable housing for all – we cannot criminalize our way out of a housing crisis rooted in failed systems."  

The Eighth Amendment’s broad language prohibiting the infliction of “cruel and unusual punishments” embodies a prohibition against disproportionate punishment. In Grants Pass, where the “offense” involves sleeping outside where no alternative shelter exists, any punishment, including the fines and jail time imposed by Grants Pass, is plainly disproportionate.  

“When applied to people with nowhere else to go, the ordinances at issue in this case disproportionately punish unavoidable, life-sustaining, and fundamentally human acts. Punishing the most vulnerable among us for such behavior violates the Eighth Amendment,” the brief reads.  

The brief further warns that the narrow view of the Eighth Amendment pushed by Grants Pass and the City’s supporters, who seek to limit the Amendment’s application only to the method of punishment, which is untethered to the original meaning and decades of Supreme Court precedent. Under the City’s argument, hundreds of dollars of fines and 30 days in prison are not inherently cruel punishments, they are constitutional, regardless of the crime or circumstances of the person being punished. This twisted logic ignores the Eighth Amendment’s prohibition on disproportionate punishment, which the Supreme Court has relied on to prohibit criminalizing drug addiction and to ban the death penalty for children and people with intellectual disabilities, for example.  

The amicus brief was filed by the national ACLU and ACLU affiliates in Alaska, Arizona, Northern California, Southern California, Delaware, Hawaii, Iowa, Kansas, Kentucky, Missouri, Montana, New Hampshire, New Mexico, New York, Oklahoma, Oregon, South Carolina, Utah, and Washington.  

The ACLU’s brief in Grants Pass v. Johnson is a part of the ACLU’s Joan and Irwin Jacobs Supreme Court Docket. 

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