The Supreme Court has ruled that the Eighth Amendment to the U.S. Constitution does not prohibit cities from criminalizing sleeping outdoors.

City of Grants Pass v. Johnson began when a small city in Oregon with just one homeless shelter began enforcing a local anti-camping law against people sleeping in public using a blanket or any other rudimentary protection against the elements – even if they had nowhere else to go.

The court confronted this question: Is it unconstitutional to punish homeless people for doing in public things that are necessary to survive, such as sleeping, when there is no option to do these acts in private?

In a 6-3 decision written by Justice Neil Gorsuch, the court said no. It rejected the claim that criminalizing sleeping in public by those with nowhere to go violates the Constitution’s prohibition on cruel and unusual punishment. In my view, the decision – which I see as disappointing but not surprising – will not lead to any reduction in homelessness, and will certainly result in more litigation.

As a specialist in poverty law, civil rights and access to justice who has litigated many cases in this area, I know that homelessness in the U.S. is a function of poverty, not criminality, and that criminalizing people experiencing homelessness in no way helps solve the problem.

The Grants Pass case

Grants Pass v. Johnson culminated years of struggle over how far cities can go to discourage homeless people from residing within their borders, and whether or when criminal sanctions for actions such as sleeping in public are permissible.

In a 2019 case, Martin v. City of Boise, the 9th U.S. Circuit Court of Appeals held that the Eighth Amendment’s cruel and unusual punishment clause forbids criminalizing sleeping in public when a person has no private place to sleep. The decision was based on a 1962 Supreme Court case, Robinson v. California, which held that it is unconstitutional to criminalize being a drug addict. Robinson and a subsequent case, Powell v. Texas, have come to stand for distinguishing between status, which cannot constitutionally be punished, and conduct, which can.

In the Grants Pass ruling, the 9th Circuit went one step further than it had in the Boise case and held that the Constitution also banned criminalizing the act of public sleeping with rudimentary protection from the elements. The decision was contentious: Judges disagreed over whether the anti-camping ban regulated conduct or the status of being homeless, which inevitably leads to sleeping outside when there is no alternative.

Grants Pass urged the Supreme Court to abandon the Robinson precedent and its progeny as “moribund and misguided.” It argued that the Eighth Amendment forbids only certain cruel methods of punishment, which do not include fines and jail terms.

The homeless plaintiffs did not challenge reasonable regulation of the time and place of outdoor sleeping, the city’s ability to limit the size or location of homeless groups or encampments, or the legitimacy of punishing those who insist on remaining in public when shelter is available.

But they argued that broad anti-camping laws inflicted overly harsh punishments for “wholly innocent, universally unavoidable behavior” and that punishing people for “simply existing outside without access to shelter” would not reduce this activity.

In today’s decision, the court rejected the city’s invitation to overrule the 1962 Robinson decision and eliminate the prohibition on criminalizing status, but denied that being homeless is a status. Instead, the court agreed with the city that camping or sleeping in public are activities, not statuses, despite the plaintiffs’ evidence that for homeless people, there is no difference between criminalizing “being homeless” and criminalizing “sleeping in public.”

The decision is surprisingly thin on Eighth Amendment analysis. It declines to engage with plaintiffs’ arguments that criminalizing sleeping imposes disproportionate punishment or imposes punishment without a legitimate deterrent or rehabilitative goal.

Instead, the court returned over and over to the idea that the 9th Circuit’s decision required judges to make impermissible policy decisions about how to respond to homelessness. The court also extensively cited friend-of-the-court briefs from cities and others discussing the difficulties of addressing homelessness. Significantly, however, neither these briefs nor the court’s decision cite evidence that criminalization reduces homelessness in any way.

In a strong dissent beginning “Sleep is a biological necessity, not a crime,” Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, quoted extensively from the record in the case. The dissent included some shocking statements from the Grants Pass City Council, such as “Maybe [the homeless people] aren’t hungry enough or cold enough … to make a change in their behavior.”

Sotomayor noted that time, place and manner restrictions on sleeping in public are perfectly permissible under the Ninth Circuit’s analysis, and that the inevitable line-drawing problems upon which the majority dwells are a normal part of constitutional interpretation. She also observed that the majority’s contention that the Ninth Circuit’s rule is unworkable was belied by Oregon’s own actions: in 2021, the state legislature codified the Martin v. Boise ruling into law.

A national crisis

Homelessness is a massive problem in the U.S. The number of people without homes held steady during the COVID-19 pandemic largely because of eviction moratoriums and the temporary availability of expanded public benefits, but it has risen sharply since 2022.

Scholars and policymakers have spent many years analyzing the causes of homelessness. They include wage stagnation, shrinking public benefits, inadequate treatment for mental illness and addiction, and the politics of siting affordable housing. There is little disagreement, however, that the simple mismatch between the vast need for affordable housing and the limited supply is a central cause.

Crackdowns on the homeless

Increasing homelessness, especially its visible manifestations such as tent encampments, has frustrated city residents, businesses and policymakers across the U.S. and led to an increase in crackdowns against homeless people. Reports from the National Homelessness Law Center in 2019 and 2021 have tallied hundreds of laws restricting camping, sleeping, sitting, lying down, panhandling and loitering in public.

Under presidents Barack Obama and Joe Biden, the federal government has asserted that criminal sanctions are rarely useful. Instead it has emphasized alternatives, such as supportive services, specialty courts and coordinated systems of care, along with increased housing supply.

Some cities have had striking success with these measures. But not all communities are on board.

Pushing people out of town

I expect that this ruling will prompt some jurisdictions to continue or increase crackdowns on the homeless, despite the complete lack of evidence that such measures reduce homelessness. What such laws may well accomplish is to push the issue into other towns, as Grants Pass officials candidly admitted they sought to do.

The decision will likely put even more pressure on jurisdictions that choose not to criminalize homelessness, such as Los Angeles, whose mayor, Karen Bass, has condemned the ruling. While this ruling resolves the Eighth Amendment claims against sleeping bans, litigation over homeless policy is doubtless far from over.

This is an updated version of an article originally published April 17, 2024.

The indictments – and in some cases, the convictions – of hundreds of people charged with participating in the riot at the U.S. Capitol on Jan. 6, 2021, will have to be reconsidered, and possibly dropped, because of a ruling by the U.S. Supreme Court on June 28, 2024. Among those charged using a broad interpretation of the obstruction law now narrowed by the high court: former President Donald Trump.

In its decision in Fischer v. United States, the Supreme Court held that a federal statute that prohibits obstructing an official proceeding may not apply to three defendants who were charged with participating in the U.S. Capitol riot. Although former President Donald Trump is not a defendant in the case, special counsel Jack Smith has charged him separately with violating the same statute.

As a law professor who teaches and writes in the fields of constitutional law and federal courts, I’ll explain what the court’s decision means for Jan. 6 defendants – and for Smith’s case against Trump.

Charges against Capitol rioters

According to their indictments, Joseph Fischer, Edward Lang and Garret Miller were present at the Capitol on Jan. 6, 2021. Prosecutors say that all three men entered the Capitol building and assaulted police officers during the riot. One of the men, Lang, brandished a bat and a stolen police shield, and another, Miller, later called for the assassination of U.S. Rep. Alexandria Ocasio-Cortez on social media.

Federal prosecutors charged the three men with various crimes, including assault on a federal officer, disorderly conduct on the Capitol grounds and obstructing a congressional proceeding. That last charge is the one at issue in the Supreme Court appeal.

Before trial, the defendants argued that the law the prosecutors had used to charge them with obstruction applied only to evidence tampering, not the violent disruption of a congressional proceeding. The district court agreed and dismissed the charge, but the U.S. Court of Appeals for the D.C. Circuit reversed and sent the case back for trial.

The Supreme Court then agreed to hear the case, putting the trial on hold while it considered the dispute over the scope of the obstruction law.

Defining a catch-all term

In a 6-3 opinion by Chief Justice John Roberts, the Supreme Court agreed with the defendants and held that the statute prohibits only evidence tampering. It then sent the case back to the appeals court to decide whether the defendants violated the law under that narrower reading by trying to prevent Congress from receiving and certifying the states’ true electoral votes.

The court began with the text of the obstruction law. The law penalizes anyone who “alters, destroys, mutilates, or conceals a record, document, or other object” or who “otherwise obstructs, influences, or impedes any official proceeding.” The government argued that the defendants had “otherwise obstruct(ed)” proceedings in Congress to certify the results of the 2020 election.

But the court rejected that argument, holding that the phrase “otherwise obstructs” refers only to obstruction that – like altering, destroying, mutilating or concealing a record, document or object – impairs the availability or integrity of evidence for use in an official proceeding. The law’s catch-all for “otherwise obstructing” an official proceeding must be read in common with the list of actions that precedes it, the court explained. Otherwise, the list would be redundant.

The court also pointed to the law’s historical background. Congress, the court explained, enacted this specific obstruction law in 2002 in the wake of the Enron accounting fraud scandal. Its aim was to fill a gap in the nation’s existing obstruction laws, which at the time prohibited directing a third party to destroy incriminating evidence but not destroying the evidence oneself.

The government’s reading of the law, the court explained, would stretch it far beyond that purpose, prohibiting forms of obstruction that had nothing to do with evidence and that Congress never intended to criminalize.

What this means for Jan. 6 defendants – and for Trump

The Supreme Court’s decision does not end the case against the Fischer defendants, who will likely stand trial on their assault and disorderly conduct charges.

But it may lead to the dismissal of obstruction charges, or reversal of obstruction convictions, for other Jan. 6 defendants. According to an NPR database, federal prosecutors have charged at least 250 other defendants with obstruction of an official proceeding, and 128 have been convicted.

The ruling may also undermine special counsel Jack Smith’s case against former President Donald Trump, whom Smith has charged with obstruction under the same law. If that case survives a separate pending Supreme Court appeal, the former president will likely seek dismissal of that charge.

Trump may not succeed, however, as the obstruction charge against him is based in part on the allegation that he organized slates of electors to certify false election results to Congress. That may amount to impairing the integrity of the evidence used in the certification proceedings.

And the obstruction charge is also not the only count the former president faces. But the ruling may narrow the case and make it more difficult for the special counsel to present evidence to the jury concerning the violence that occurred on Jan. 6. Under this new ruling, that violence alone may not count as obstruction.

The Fischer case also shows how sometimes, especially in high-stakes cases, the justices can use methods of legal reasoning that they are quick to criticize in other contexts. In the opinion, members of the Supreme Court’s conservative majority cited the legislative history of the obstruction law – evidence that conservative jurists such as the late Justice Antonin Scalia often called unreliable.

The Supreme Court’s decision in the Fischer case may have a profound effect on the special counsel’s historic prosecution of former President Trump.

But even if it does not, it still sheds important light on the court’s inner workings and the federal government’s power to safeguard the integrity of its proceedings.

The 2024 Homeland Security appropriations bill increased funding for U.S. Immigration and Customs Enforcement operations to handle an anticipated daily detainee population of 41,500, up from an average of 34,000 in recent years.

Yet recent studies have exposed cracks that call into question the agency’s ability to medically care for the detainees it is entrusted with, including inhumane conditions, high suicide rates, structural problems such as the use of prisons to hold detainees, delayed or interrupted medical care and overcrowded conditions. Research also shows that the pandemic years further exacerbated these inequalities.

One recent report by a trio of nonprofit advocacy groups blames preventable deaths of people detained by ICE on inadequate investigations and flawed systems at the agency. The report, Deadly Failures, released on June 25, 2024, by the American Civil Liberties Union, American Oversight, and Physicians for Human Rights, documents inadequacies in diagnosis, treatment and emergency response. It points to suicides that might have been prevented with appropriate mental health care and properly managed medication. And it details underlying issues – understaffing and a lack of interpretation and translation services.

The Conversation asked Cara Buchanan, an emergency physician and clinical fellow in health policy and social emergency medicine at the Harvard Kennedy School, whose research the report cites, about research in this area by her team and others, ICE’s track record on detainee medical care and what needs to be done to improve medical care for people in ICE custody.

What have you and your colleagues found in studying medical care for detainees in U.S. Immigration and Customs Enforcement custody?

Our research shows that preventable deaths of people in ICE detention are often preceded by lapses in a standardized, consistent and competent approach to medical triage, including identification and escalation of the need for emergency care.

What has other recent research uncovered in this area?

Research across many disciplines, including medicine, law, policy, criminal justice, health economics, human rights and public health, correlate structural design features of immigration detention facilities to adverse health outcomes for detainees. This includes the use of solitary confinement, which is linked to an increased risk of self-harm for detainees in ICE custody.

The COVID-19 pandemic highlighted significant health disparities in immigration detention facilities. Many facilities failed to provide adequate basic, preventive and emergency medical care.

Studies also demonstrate a persistent lack of transparent information about conditions in ICE facilities that continues to prompt ongoing calls for increased oversight and accountability to address the systemic sources of poor health outcomes.

The ultimate failure of the immigration detention system to protect the health and safety of detainees is the outcome of preventable death. Publicly available ICE detainee death reports provide basic details about timelines preceding death. However, independent investigations and analyses into the circumstances surrounding these deaths have demonstrated pervasive and systemic negligence.

Billions of dollars of congressional appropriations continue to pour into the expansion of ICE detention facilities, and private prisons contracted to provide services for immigrants in detention report profit margins in the billions of dollars.

How did your work fit with the recently released report?

Deadly Failures expounds on our prior research with a depth and breadth of context.

The report provides clear policy recommendations for major stakeholders – the Department of Homeland Security, the Department of Justice, Congress and local and state governments.

These recommendations range from feasible to ambitious in detailing actions that would eliminate preventable death for those in ICE custody. Proposed interventions include prompt disposition of detainees who have medical and mental health vulnerabilities, limiting the physical and fiscal expansion of detention facilities, investing in community-based services, banning solitary confinement, passing legislation to ensure accountability to standards of care in facility contracts and establishing mechanisms for regular public data reporting. The report also calls for ICE to dismantle the mass immigration detention system at large.

I was particularly heartened to read the second line of the Deadly Failures executive summary, which highlights the most striking finding of our research – the troubling trend of ICE releasing people from custody immediately prior to their deaths.

Why does this happen?

ICE regulations specify that when a detained noncitizen dies in custody, the agency will conduct timely notification, review and publication of the death. But the regulatory language about people who die immediately after release from ICE custody is vague and doesn’t include a reporting timeline or proposed mechanism of accountability for such deaths.

When we investigated the total number of deaths in ICE custody from fiscal years 2021 to 2023, our research team cross-referenced published ICE death reports with news releases issued by investigative journalists and immigration advocacy groups. Our review of public records and available legal documents confirmed four deaths that were not accounted for in the 11 death reports ICE published from those years.

Through this investigation we found a pattern of detainees who, while hospitalized, were released from ICE custody after being deemed critically ill, with death clinically imminent. When we reviewed these detainees’ medical records we found deaths that could have been prevented. In one such case, a detainee contracted COVID-19 while in custody and suffered a series of complications, including multiple hospitalizations for recurrent infections. Concerns raised by the facility medical director about the patient’s persistently critical condition went unaddressed, and after ultimately suffering a stroke the patient was placed on life support. ICE released the unconscious patient from custody just prior to his death. This technical release from custody allowed ICE to avoid mandatory public reporting of this case and its details.

Officially, ICE has said that it is continuing to evaluate its enforcement of health standards and is looking for ways to improve medical care delivery.

Our research team’s key recommendation, also highlighted by the authors of Deadly Failures, is that all deaths of individuals that occur within 30 days of release from ICE custody be included in mandatory public reporting of ICE statistics and death reports. This is a critical measure of transparency and accountability.

What should Immigration and Customs Enforcement be doing to prevent unnecessary deaths on its watch?

Time in ICE custody is related to preventable death. People detained in ICE facilities should be released as quickly as possible so their medical needs can be transitioned to more consistent and long-term care.

Triage should also be standardized. Detainees who show signs and symptoms of serious medical conditions should be rapidly assessed and quickly transferred to local emergency rooms for further evaluation and treatment. Rigorous oversight and accountability should be established for all workers at ICE facilities and for clinical outcomes of detained patients.

Are you still seeking answers to questions you have about detainees? If so, what are you looking for?

ICE’s collection, recording and sharing of high-quality data regarding the capacity of ICE facilities, the scope of health services available and metrics of health outcomes for people detained in ICE custody is markedly limited. The dearth of data leaves a barrage of unanswered questions regarding the conditions that contribute to poor health outcomes. In my view, ICE detention facilities should be held to standards of transparency and accountability to federal and public reporting, as are other large systems of medical care.

Is there anything that has surprised you in what you’ve found over the past few years?

The instances of deficient professional language services, including interpretation and translation, for people detained in ICE custody is surprising. It is at odds with a federal mandate that stipulates a patient’s right to receive health information in their preferred language at no cost. This right is exercised daily in U.S. hospitals and clinics across the country for the nondetained with in-person interpreters or readily accessible technology.

Ultimately, it is disheartening but not surprising that extensive research continues to demonstrate a diminished standard of care experienced by people detained in ICE custody.