What is criminal law?

Of the various subjects a student encounters in an American law school, criminal law may appear the most familiar. From an early age, every American is exposed to depictions of various aspects of the criminal legal system. Police (and “robbers” and “burglars”) appear in children’s books and toys. Criminal investigations and prosecutions are dramatized in television and movies. In the news media, there is ample, perhaps exaggerated, coverage of crimes, arrests, trials, and punishments. Criminal law appears everywhere, in part because in the United States it is nearly everywhere: this country uses criminal legal interventions with a frequency and severity unmatched in most other nations. For this reason, many of the ideas and terms you encounter in this book will be ones you’re likely to have heard before: charges, conviction, presumption of innocence, proof beyond a reasonable doubt, to give a few examples—along with terms of critique such as mass incarceration and racial bias and overcriminalization.

Criminal law seems familiar, but the apparent familiarity can be misleading. . . .Notwithstanding the seeming familiarity of criminal law, many students eventually find the subject to be very different from what they expected “law” to be. To minimize confusion, it is useful to begin with some basic descriptions. What makes criminal law the same as other areas of law? That is, what makes it law? And what makes criminal law different from other areas of law? What makes criminal law a distinctive field?

Philosophers have no single answer to the question, what is law, and dictionaries identify the word as one with multiple meanings. We speak of the laws of physics, for example, but those statements about the observed properties of physical objects are very different from the kinds of laws that one studies in law school. For the purposes of this [course], law can be understood as a human practice that involves both authoritative written texts and decisions by public officials. Text and decision: it will be important to keep both in mind as you study criminal law.

In law, texts and decisions interact in a number of different ways. For example, a statute that defines “burglary” is a written text, and it is designed to guide official decisions by police officers, prosecutors, and judges. Official decisions are often but not always guided by a preexisting written text; sometimes public officials make decisions without statu- tory or other written guidance. And official decisions are sometimes, but only sometimes, recorded in a new written text. Decisions by police officers are often unrecorded, or recorded in a document such as an arrest report that is soon lost to history, whereas courts frequently announce and explain their decisions in written opinions that are preserved for much longer periods. This latter kind of text, the judicial opinion or “case,” makes up much of law school reading assignments. But cases are not the only written texts that are important to the practice of law, and judicial decisions are not the only decisions that are important to law. In criminal law (and many other fields), statutes are especially important legal texts. And in criminal law (and many other fields), decisions by executive branch officials are often determinative of legal outcomes. . . .

Here, then, is one way in which criminal law is like other areas of law that you will encounter in law school: it is a distinctive human practice that involves the use of written texts to guide, constrain, or express official decisions and actions. It bears emphasis that the decisions reached in law are decisions made by human beings. Humans are rational creatures who can deliberate about moral values, or take into account empirical evidence, or be influenced by public opinion, or rely on “common sense” as they make legal decisions. But human rationality is bounded, or limited by various factors such as imperfect information and cognitive biases. Human law, unlike the laws of physics, thus reflects various characteristics of human decisionmaking that are also observable in other contexts, such as the influence of emotion and cognitive biases. Racial bias is a particularly acute concern in criminal law. . . . Perhaps criminal law is even more shaped by emotion and cognitive bias than other fields of human law; we will explore that possibility. For now, the key point is that legal texts are designed to guide human decisionmaking, but the relevant text may not be the only factor that shapes an official decision.

What (beyond the possibility of unusual effects of bias and emotion) distinguishes criminal law from other fields of human law? Criminal law was once more commonly called “the law of crimes,” and the concept of a crime may help us identify what is distinctive about criminal law. In popular culture and lay parlance, the term crime is likely to bring to mind images of wrongful or harmful acts. It is tempting to think of criminal law as the law that regulates (by prohibiting) acts of violence or other inflictions of serious harm. Certainly many cultural depictions of crime encourage that view, equating crime with murder, rape, or other grave physical harms. But in legal terms, a crime is any act that has been designated as a crime by the appropriate legal actors. Many acts designated as crimes do not involve any physical harm, or even conduct that is widely viewed as harmful. Public intoxication, or “loitering,” or a failure to file required paperwork, are all acts designated as criminal . . . .

Whether or not the acts designated as criminal are in fact wrongful or harmful in all cases, the designation of a person as “a criminal” brings significant negative consequences to that person in all or nearly all cases. Criminal law is often said to be distinctive in imposing unique burdens, such as loss of liberty through a jail or prison sentence. Even when a person convicted of a criminal offense avoids incarceration, a criminal conviction carries considerable stigma and often renders a person ineligible for various social benefits.

Indeed, the burdens of a criminal conviction are a key part of the distinction between criminal law and tort law. Tort law, which you are likely to study in your first year of law school, is similar to criminal law in that it imposes legal liability for conduct designated as wrongful. In fact, the modern English word “tort” comes from the Latin term torquere (to twist, or distort) and its past participle tortum (wrong or injustice). Many acts could be classified as both crimes and torts, such as intentional inflictions of physical injury. But tort law is different from criminal law in at least two key respects. First, the sanctions are different. Tort liability usually means having to pay monetary damages to the injured party, but it does not involve custodial detention or the stigma of a criminal con- viction. To be sure, criminal punishment can take the form of a fine, or monetary restitution to a victim, so the fact that a person has to pay money for some wrongdoing does not itself distinguish crimes from torts. But criminal sanctions often involve not monetary payments (or, not only monetary payments) but physical detention, in a jail or prison. Additionally, there is a stigma associated with a criminal conviction that is not typically associated with being found liable for a tort. Thus, the severity and stigma of criminal sanctions may be one point of distinction from tort law. A second way in which tort law is different from criminal law is that the decision to pursue a tort claim is usually the choice of a private party, not a public official. Police and prosecutors decide whether a given individual will be investigated and charged with a crime, but the individual or pri- vate party who is harmed by tortious conduct decides whether to file a tort suit.

Because the burdens of a criminal conviction are seen as more severe than the burdens typically imposed by non-criminal laws, criminal law contains various structures designed to limit the imposition of criminal penalties. For example, criminal punishment is said to require a higher standard of proof than is required in many other areas of law. That’s the beyond a reasonable doubt standard that you’re likely to have heard invoked before. This is another way in which criminal law differs from tort law, and it may explain why some defendants are acquitted of criminal charges but found civilly liable for the same conduct in a tort suit. (O.J. Simpson is a famous example: he was acquitted of the murders of his ex-wife and her friend Ron Goldman, but Simpson was found liable for the deaths in a subsequent civil tort suit with a lower standard of proof.)  . . . [W]e will encounter several cases that address constitutional principles arguably designed to limit the imposition of criminal law’s distinctively severe penalties. As you read those cases, you will gain a better understanding of how the United States has developed its extensive system of criminal legal interventions, notwithstanding ostensible limits on the use of criminal sanctions.

. . . [W]e will consider three types of official decisions that are especially important to criminal law. For any individual person to be convicted of a crime, each of these three decisions is necessary. First, the criminalization decision is the choice to define some category        of conduct as criminal. Today, this decision usually must be made by a legislature and expressed in a criminal statute, but we will see . . . that criminalization decisions have not always required legislative action or a written statute.

Criminal statutes (or other texts that define activity as criminal) are not self-enforcing. For example, the existence of a statute that criminalizes the possession of cocaine is not by itself enough to ensure that all persons who possess cocaine will be convicted of violating that statute. Accordingly, a second type of decision key to criminal law is the enforcement decision, or the decision by enforcement agents such as police and prosecutors to arrest or charge a given person. In practice, a single criminal case often involves multiple enforcement decisions: the decision by a police officer to investigate and perhaps arrest a person; the decision by a prosecutor to charge a particular offense; and in many instances, later decisions by a prosecutor to add or drop charges as part of a plea bargaining process.

Plea bargaining is often (but not always) a precursor to the third key decision, the adjudication decision, in which a formal, and often final, decision is made to classify the defendant as guilty or not guilty. If a criminal case involves a jury trial, then it is the jury who makes the adjudication decision. Some criminal cases involve bench trials, in which a judge serves as the factfinder and decides whether to convict the defendant or not. But the vast majority of criminal convictions are based on guilty pleas rather than jury or bench trials. When a defendant pleads guilty, it is more difficult to identify the actor who makes the adjudication decision. It could be said that the defendant himself (or herself) makes the adjudication decision, since the defendant admits his own guilt instead of asking a jury or judge to determine guilt. But what would lead a defendant to do that? In a system that promises that every defendant will be presumed innocent until proven guilty, why do so many defendants plead guilty, disclaim their own innocence, and relieve prosecutors of their burden to prove guilt? . . . It will turn out that criminalization decisions and enforce- ment decisions can create situations in which adjudication decisions all but disappear – choices about what to criminalize, and how to enforce those laws, can make a guilty plea rather than a trial the least terrible option for many a defendant. For now, it is important simply to note that the distinctive standard of proof mentioned above – proof beyond a reasonable doubt – does not actually get tested in most criminal cases. Prosecutors don’t have to “prove” anything if a defendant pleads guilty.

In a nutshell, then, criminal law is a human practice which involves three important types of decisions: criminalization, enforcement, and adjudication. Any of these decisions may be guided by, or recorded in, an official text, but texts will not always determine how the decisions are made.

Taken from: Alice Ristroph, Criminal Law: An Integrated Approach, Second Edition, Published by CALI eLangdell® Press. Available under a Creative Commons (CC BY-NC-SA 4.0) License.

Flowchart #1, from the Bureau of Justice Statistics, has the following introduction: "The flowchart of the events in the criminal justice system (shown in the diagram) updates the original chart prepared by the President's Commission on Law Enforcement and the Administration of Justice in 1967. The chart summarizes the most common events in the criminal and juvenile justice systems including entry into the criminal justice system, prosecution and pretrial services, adjudication, sentencing and sanctions, and corrections.

[source: Criminal Justice System Flowchart | Bureau of Justice Statistics (ojp.gov)]

FlowChart #2: from "Beyond Criminal Courts." The introduction to the flowchart of this online resource at beyondcourts.org reads: "Understanding the general contours of what happens in criminal court cases illuminates the violence embedded in every stage of the process and in each of the discretionary decisions made by criminal court actors."

[source: Criminal Courts 101 | Beyond Criminal Courts (beyondcourts.org)]

Natapoff, Punishment Without Crime ch.1 (2018)

 One of the great myths of our criminal system is that minor arrests and convictions are not especially terrible for the people who experience them. It is a highly influential myth. It helps justify the speed and sloppiness of misdemeanor processing. It supports the assignment of the least-experienced prosecutors and public defenders to misdemeanor dockets. It makes pleading guilty seem sensible so as to avoid the difficult and expensive process of contesting a case. It even explains the Supreme Court’s habit of withholding constitutional rights from misdemeanor defendants. The Court has held that people who face less than six months’ imprisonment have no right to a jury trial. If they are not incarcerated for a misdemeanor, they have no right to a lawyer. In effect, when the law deems punishment not particularly burdensome, it makes it easier to convict people in the first place.

But misdemeanor punishments are not petty at all. People with minor arrests and convictions are jailed, fined, supervised, tracked, marked, and stigmatized. They can lose their jobs, driver’s licenses, welfare benefits, child custody, immigration status, and housing. They may be disqualified for loans and professional licenses or sink into debt and ruin their credit. Sometimes these things happen even when their cases are dismissed and they are never convicted at all.

Current US law barely acknowledges the broad punitive impact of the misdemeanor experience. Criminal law draws a line between formal legal “punishment”—the jail time, probation, and fines imposed by a judge when someone is convicted—and all the other “collateral consequences” of that conviction. But in the misdemeanor arena such legal distinctions obscure the sprawling reality of the punishment experience. The full impact of a misdemeanor begins long before people are convicted and ends long after they have served their sentences. It can amount to a crushing burden, heavier than the punishment ordered by the court and often wildly disproportionate to the seriousness of the offense.

A misdemeanor’s impact can flow from many different sources. We’ll look at the main categories that make up the punishment experience: jail, probation, fines and fees, warrants, criminal records, the loss of public benefits, immigration consequences, future encounters with the criminal system, and, finally, the fear and stigma that go with it all.

JAIL

Tyrone Tomlin was a fifty-three-year-old construction worker in Brooklyn, New York. One afternoon in late November 2014, chatting with friends, he popped into the corner store to buy a soda. When he came out, two undercover police officers were frisking his friends. An officer took Tomlin’s soda. “What you got in the other hand?” the officer asked. “I got a straw that I’m about to use for the soda,” said Tomlin. The office searched Tomlin and arrested him for the straw. “Drug paraphernalia,” the officer explained.

When Tomlin got to court, the prosecutor offered him a thirty-day sentence if he pled guilty. He wouldn’t, but Tomlin couldn’t afford the $1,500 bail set by the judge, so he was sent to Riker’s Island, New York’s infamously violent jail complex. He went back to court on November 25, two days before Thanksgiving. There was still no drug evidence, but the government continued to insist on a plea; Tomlin continued to insist that he was innocent, but since he still couldn’t make bail, back to Riker’s he went. Days later, he was jumped by a group of inmates in the shower who punched, kicked, and stomped him in his head and his eyes. When Tomlin went to court two weeks later, his eye was still swollen shut. At that hearing, however, the prosecution produced a report from the police lab confirming that the straw was just a straw: “No Controlled Substance Identified” was written at the top of the report in bold. The report had been faxed to the district attorney on November 25, the very same day that Tomlin was in court before the beating, but no one had picked it up. Now the government dismissed the case. At the time, Tomlin was relieved. “It feels great to go home,” he said.

Six months later, Tomlin’s eye remained askew, and his sight was blurry. “I still feel the aftereffects,” he said. “Pain [in] my eye, in my head.” Now that the threat of Riker’s had passed, he was thinking about the fact that he got locked up and beaten up, lost three weeks of salary, and missed Thanksgiving with his family, all because he could not afford to pay bail. “I got a raw deal," he concluded, but he was philosophical. “I’m not Johnny Rich-Kid with a silver spoon. Sure, yeah, I’m mad about it. But that’s the way it is. I’ve got to accept it. It’s not right, but that’s the way it is.” He shrugged. “What are you going to do?”

Jail is one of the most damaging aspects of the misdemeanor experience, and it looms large throughout. It is where you go when you are arrested, where you stay if you can’t make bail, where you will serve your sentence if convicted, and where you might end up if you can’t pay your fine. Jails are different from prisons. Prison is where people serve felony sentences, and the US prison population of 1.5 million has made this country internationally infamous. But there are 11 million admissions to 3,000 American jails every year—on any given day, approximately 730,000 people are in jail. On average, approximately one-third of them are there for misdemeanors, but in some cities it is as many as 50 percent. Sixty percent—nearly half a million people—are incarcerated pretrial; like Tyrone Tomlin they have not been convicted of anything and are thus presumptively innocent.

* * *

As Tyrone Tomlin’s story illustrates, jail is intimately connected to the phenomenon of bail. Bail is supposed to be a kind of good faith down payment—an amount of money set by the court to ensure that defendants show up for future court appearances. Defendants who can afford to pay it get released. When their case is over, they get it back. * * * For people who don’t have the money, however, the cost of bail creates pressure to plead guilty. Most misdemeanor defendants who are set bail cannot pay it, so they either plead out or stay in jail until their cases are over.

The impact of going to jail is substantial, both for individuals and their families. Studies have shown that as few as twenty-four hours of pretrial detention can have negative effects. Longer stays are highly disruptive and can lead to evictions, towed cars, and the loss of food stamps and other resources. More than 5 million children have seen a parent go to jail or prison. In 2009, over 400,000 parents were in local jails. Incarcerated parents can lose custody or visitation rights or face further incarceration for failing to pay child support that accrued while they were in jail. In sum, whether incarceration occurs before or after conviction, going to jail is an enormously costly aspect of the misdemeanor experience.

PROBATION

Sometimes people are sentenced not to jail but to probation, a period of court-ordered supervision. While it can be a way of avoiding incarceration, probation carries its own unique burdens. In 2014, for example, Danyelle and Roland Hall threw a Christmas Day party for friends and family. Afterward, Hall drove two of her guests home and was stopped for driving thirty-eight in a twenty-five-mph zone. A breathalyzer test showed a blood alcohol content of .09, just over the Maryland legal limit of .07, the difference of about one glass of wine.

Although Hall had no criminal record and no history of alcohol use, she was sentenced to eighteen months’ probation—if she completed it successfully, the case would be dismissed, and she would avoid a criminal record. The conditions of that probation included $105 a month in supervision fees, twenty-six weeks of alcohol education at $280 a month, $252 in court costs, and three Alcoholics Anonymous meetings a week. If Hall wanted to change addresses, she would need the judge’s permission. Hall also owed $2,000 to the bail bondsman and $1,500 to her lawyer. Because her license was suspended for two weeks, she lost her job as a nurse’s aide, making it difficult for her husband to pay those costs.

After she had been in compliance for several months, Hall’s apartment developed a mouse infestation. She wrote to the court explaining her intention to move, but the court issued a summons stating that she did not have permission to change her address. When Hall lost the paperwork proving her attendance at the AA meetings, the judge issued a warrant for her arrest. Hall went to jail for a month, and the judge entered the conviction onto her record. As a result, her driver’s license was suspended for six months. Because she couldn’t drive to work, she lost her new job.

Probation, sometimes referred to as community supervision, is the most common misdemeanor sentence other than fines. The federal Bureau of Justice Statistics (BJS) reports that approximately 4 million Americans are on some form of probationary supervision, nearly half of them for misdemeanors, but this is an undercount since many low-level probations are not reported to BJS at all.

Probation is often seen as a lenient sentence because it permits people to avoid jail time, but as Donyelle Hall’s story reveals, it can be expensive, burdensome, and intrusive. Probationers lose their privacy rights: probation officers can search them and their homes at any time. Probation usually requires periodic drug tests, visits to the probation office, electronic monitoring, counseling, fines, or other conditions that can be difficult to meet, especially for low-income and working-class probationers. A typical misdemeanor probation term can last from six months to a year or more. During that time, violation of any condition, including failure to pay fines and fees, can subject the defendant to incarceration; only about two-thirds of probationers successfully complete their terms.

FINES, FEES, AND THE NEW DEBTORS’ PRISON

* * *

[F]ines are a widely used form of punishment that imposes hundreds and sometimes thousands of dollars of debt on misdemeanor offenders. California alone has $10 billion in outstanding unpaid traffic debt. The practice can have far-reaching consequences because so many people cannot afford to pay. Low-income defendants are punished not only with their original fine but with long-term debt, loss of credit, or pressure to forgo rent payments or other necessities such as food, health care, and education. If people do not pay, they may be jailed.

In contrast to fines, fees are technically not punishment: they are instead financial charges imposed on defendants by courts, jails, cities, public defenders, prosecutors, probation officers, and clerks to pay for the operations of the criminal process itself. They can include court costs, fees for using the public defender, supervision or “tether” fees, drug testing fees, electronic monitoring fees, warrant fees, jail fees, and late fees. Total fees can far exceed any fine. * * *

Thousands of people * * * end up incarcerated every year because they cannot afford to pay fines and fees. Often their incarceration becomes a way of paying off their debt: some states offer a $50 or $100 credit for every day spent in jail. Because this kind of debt-based incarceration only occurs when people are too poor to pay, the phenomenon is commonly referred to as the new debtors’ prison.

WARRANTS

The failure to pay a misdemeanor fine or to show up in court for a minor offense can also trigger the issuance of a warrant, which is a court order authorizing the person’s arrest at any time by any police officer. There are millions of such outstanding warrants in the United States, and they have wide legal and practical ramifications. * * *

Some places use warrants more than others. In Texas, the city of El Paso issues 87,000 warrants per year in a city of 680,000 residents. In New York City alone, there are over 1.2 million outstanding warrants; in Pennsylvania, 1.4 million; in California, 2.5 million. Pine Lawn, a small town in St. Louis County near Ferguson, had 23,457 outstanding warrants pending in 2013—more than seven per resident. These warrants subject people to being stopped and arrested at any time.

* * *

CRIMINAL RECORDS AND EMPLOYMENT

Perhaps the best-known informal consequence of a criminal conviction is its impact on employment. Job listings on Craigslist often warn people with misdemeanors not to bother applying: “No Exceptions! * * * No Misdemeanors and/or Felonies of any type ever in background”; “Do Not Apply with Any Misdemeanors/Felonies”; and “You must not have any felony or misdemeanor convictions your record. Period.”

Such barriers can last a long time. Johnny Magee was forty years old when he picked up a package for his uncle. Unbeknownst to Magee, who is developmentally disabled, the package contained drugs. Magee was convicted of misdemeanor conspiracy—the only contact with drugs or the criminal system he ever had. But nine years later, Lowe’s home improvement store still wouldn’t give him a job in its garden center. “Lowe’s policy is unfair to me and lots of other people,” says Magee. “It’s unfair because they only see something that happened to me many years ago, even though I’ve never been in trouble since.”

Over 65 million Americans have a criminal record, the majority for misdemeanors. These low-level convictions increasingly inhibit employment. Most employers now use criminal background checks. Indeed, some insurance companies require employers to conduct checks as a condition of their coverage. And online searches and commercial databases make access to criminal records easy.

* * *

The growing reliance on criminal records means that even very low-level conduct can trigger widespread employment disqualifications. After September 11, 2001, for example, the pharmaceutical company Eli Lilly expanded its background check procedures to include misdemeanors. This resulted in the banning of a number of employees from Eli Lilly facilities, including a woman whose only offense was a misdemeanor conviction for a $60 bounced check to a refrigerator rental company, which she said occurred because she closed the account without realizing that the check had not yet cleared.

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LOSING PUBLIC BENEFITS

A misdemeanor conviction or probation violation disqualifies a person from a wide range of benefits and opportunities. Under federal law, any probation violation for any type of  misdemeanor disqualifies an individual from welfare benefits, including Temporary Assistance to Needy Families, food stamps, low-income housing, Supplemental Security Income for the elderly and disabled. The consequences of a drug misdemeanor conviction are particularly harsh and can include the loss of health-care coverage, welfare, and student financial aid.

Marisa Garcia, for instance, was a month away from starting freshman year of college. It was also her nineteenth birthday, and she and her friends were out celebrating. But when they stopped for gas, police parked behind their van. “Eventually they started searching the car,” Garcia remembers. “There was a little coin purse, with a small pipe with ash in it.” It was hers.

Garcia had never been in trouble before and did not want to tell her mother, so she went to court alone, without a lawyer, and pled guilty immediately. She paid a $400 fine. Two months later, a letter from the federal financial aid office arrived, asking whether she had a drug conviction. “My heart kind of stopped,” she says. Garcia lost her financial aid for a year. Her mother, already supporting four children, took out a loan to pay Garcia’s tuition.

Garcia feels that she was punished twice: first with the fine and then again, far more severely, with the loss of her financial aid. If she had been richer, she could have paid for a drug-treatment program, which would have let her get her aid back sooner. “I still would have been arrested for marijuana,” she muses, “but if I was wealthier, I could go out and do whatever I wanted and just be punished once.”

The Council of State Governments maintains a database of the collateral legal consequences of a criminal conviction; that database counts 8,958 different statutory provisions across the country that disqualify people with various misdemeanor convictions from professional occupations, housing opportunities, educational programs, and other benefits. * * *

One of the most devastating consequences of a low-level conviction can be the loss of housing, both private and public. Like employers, private landlords have easy access to criminal records; criminal background checks are a routine aspect of lease applications. For public housing, a conviction can cut off access by law. A conviction for disorderly conduct makes a person presumptively ineligible for New York City public housing for two years. In Baltimore, a misdemeanor conviction disqualifies a person from public housing for eighteen months.

IMMIGRATION

The misdemeanor net puts immigrants at an especially heightened risk because it touches so many people and imposes criminal convictions for such low-level conduct. Hundreds of thousands of noncitizens are deported every year, the majority of them triggered by an arrest or conviction for minor offenses.

One of those people was Elizabeth Perez’s husband. “We were supposed to do this together,” said Perez, as her three-year-old son tugged on her long hair and her four-year-old daughter screamed for attention. “Raise the kids, I mean.” Perez was thirty-five years old, an American-born former marine who served in Afghanistan. She lived in Painesville, Ohio. Her husband was deported to Mexico in 2010 after the police detained him during a traffic stop. He had fourteen year-old misdemeanor charges for assault and marijuana possession. “It’s been hard without my husband here,” said Perez.

Legal residents can lose their immigration status if they sustain a misdemeanor conviction. As one scholar describes it, deportable offenses include “misdemeanor drug possession[,] * * * theft of a ten-dollar video game, shoplifting fifteen dollars worth of baby clothes, * * * forging a check for less than twenty dollars * * * theft of services offenses like turnstile jumping, misdemeanor indecent exposure, [and] petty shoplifting offenses.” Undocumented immigrants, meanwhile, can face deportation if they are taken into government custody for something as minor as speeding. From 2009 to 2014, nearly 200,000 people were deported [as] a result of being arrested solely for a traffic offense.

* * *

A misdemeanor arrest or conviction can completely alter an individual’s immigration outlook. For undocumented defendants who are jailed on minor offenses but who have not yet come to the attention of immigration authorities, there is massive pressure to plead guilty immediately in the hope of avoiding an immigration warrant, called a detainer. Small plea bargain details, moreover, can have big immigration consequences for legal residents. Subtracting a single day from a 365-day sentence can transform a deportable offense into a non-deportable one. Attorneys can bargain a minor marijuana-possession charge into a disorderly conduct charge to spare the defendant automatic deportation.

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FUTURE ENCOUNTERS

After a misdemeanor conviction, a person’s interactions with the criminal process will never be the same. Police are more likely to arrest individuals who have prior low-level convictions rather than letting them walk away or merely issuing a ticket. Prosecutors are more likely to seek bail or to charge them with more serious crimes. Judges typically impose longer sentences on people who have prior convictions, even minor convictions not involving a lawyer.

* * *

These ratcheting dynamics are particularly destructive where people and neighborhoods are heavily policed. In places like Baltimore and Brooklyn, where African American men are stopped more often than average, their chances of getting an initial low-level conviction rise accordingly. The next time they are stopped, they have already been marked by the process and will be treated more harshly. The more times this happens, the harsher the system will act. For example, the New York City Transit Police Department operates on a recidivism policy. The first time people are stopped in the subway for a fare violation, they will be given a ticket. If they have a prior transit violation or arrest, however, they will be arrested. Because the New York Police Department has a history of racially disproportionate stops and arrests—92 percent of turnstile-jumping tickets are issued to people of color, who comprise 66 percent of city residents—this recidivism policy ensures that people of color will continue to be arrested at higher rates. This type of negative feedback loop imposes long records and increasingly harsh sentences not because people have become more dangerous or worse offenders but because the system is responding to its own cues and criminalizing and recriminalizing the same people over and over.

FEAR, STIGMA, AND CIVIC DISRESPECT

By now it should be clear how many concrete burdens and disabilities are triggered by the misdemeanor experience. Being labeled a criminal, however, inflicts its own special psychological and social wounds.

Legal scholar Paul Butler has shared his own experiences. As law professors go, Butler is indisputably prominent. Educated at Yale and Harvard, a former federal prosecutor, and now an eminent scholar at Georgetown Law School, he appears routinely on national television and in national newspapers. Back in 1993, however, an unsavory neighbor falsely accused him of misdemeanor assault. After being arrested and released on his own recognizance, Butler went home and cried. “If I get convicted of this crime—this stupid little misdemeanor,” he thought, “life as I know it is over.” He hired one of the best criminal defense attorneys in Washington, DC, and a private investigator. Even so, he stayed frightened and uncertain right up until the moment of his acquittal. He later wrote that he knew that his innocence was “beside the point.” Afterward, despite his acquittal and stellar background, he never quite recovered. “I’m not as innocent as I was before,” he concluded. “I have a record.”

Even for highly educated, well-resourced professionals like Butler, the misdemeanor process can be painful and alienating. For the less educated, less wealthy people who are even more likely to encounter the system, it is often confusing, frightening, and disrespectful. Recall the story at the beginning of this book of Grandma G, who was led sobbing and in handcuffs out of the courtroom after a proceeding she did not understand and no one bothered to explain to her. For those with criminal records who have been through the process before, repeated exposure to the criminal system is a special trauma its own. As legal scholar Jonathan Simon puts it, “The whole structure of misdemeanor justice * * * seems intended to subject the urban poor to a series of petty but cumulative blows to their dignity as citizens of equal standing.”

* * *

Contact with the criminal system also changes people’s relationship to government; indeed, it can taint their very understanding of democratic society and their place in it. People who have been arrested and convicted may avoid institutions that keep formal records, such as banks, hospitals, and schools, exhibiting what one scholar calls “system avoidance.” Studies show that people who have gone through the criminal system, even for minor offenses, distrust the government more and participate less in politics. As one interviewee explained, the unresponsive, heavy-handed criminal system is “the only government I know.” Others are even more pessimistic: “All we know about government is bad. We don’t know the good aspects.” The petty-offense process teaches this cynical, destructive lesson in civics to 13 million Americans every year.

It is a lesson that has been taught in lower courts for a long time. In 1979, sociologist Malcolm Feeley wrote a famous book about the misdemeanor court in New Haven, Connecticut, called The Process the Punishment. His title captured the fact that merely being hauled into court and going through the judicial process was often more punitive than any formal sentence the judge might impose. Even when their cases were dismissed, people had already been punished simply by being forced to show up and account for themselves. Feeley argued that the judicial process itself—not the formal conviction or punishment—was in many ways the point of the exercise, a way of managing poor, disadvantaged, or disorderly people regardless of whether they were legally guilty.

Feeley’s aphorism is even truer today. The petty-offense process starts “punishing” people long before they get to court, and it keeps punishing them long after they have completed their court-imposed sentences. It can even punish those who are never convicted of anything. Being stopped, arrested, cited, jailed, posting bail, telling your employer—these experiences take a heavy personal and social toll. The damaging consequences of a brush with the criminal system kick in from the very beginning. Indeed, for people of color, immigrants, and others who fully expect to be touched by the criminal system, fear of the inevitable encounter can haunt them long before it ever takes place. Afterward, the repercussions continue long after the legal punishment is over. The formal mark of an arrest or conviction record lasts a lifetime; the psychological and economic burdens of being convicted can last just as long. The total impact of these burdens and exclusions can be so great as to amount to what some call a “new civil death,” a permanent barrier to full civic and economic participation.

Technically speaking, the law does not recognize all these different hardships as punishment; nor does it acknowledge the many ways that we punish without crime. From the law’s formal perspective, Tyrone Tomlin’s eye injury doesn’t count. Donyelle Hall losing her job doesn’t count. Neither does Marisa Garcia losing her financial aid. The impact on their families doesn’t count either. But as these stories reveal, a legalistic approach misses the true punitive weight and extent of the misdemeanor experience for those who actually go through it. An encounter with the misdemeanor system for even the pettiest conduct can derail a person’s life.

The general purposes of the provisions of this chapter are:

1. To proscribe conduct which unjustifiably and inexcusably causes or threatens substantial harm to individual or public interests;
2. To give fair warning of the nature of the conduct proscribed and of the sentences authorized upon conviction;
3. To define the act or omission and the accompanying mental state which constitute each offense;
4. To differentiate on reasonable grounds between serious and minor offenses and to prescribe proportionate penalties therefor;
5. To provide for an appropriate public response to particular offenses, including consideration of the consequences of the offense for the victim, including the victim's family, and the community;  and
6. To insure the public safety by preventing the commission of offenses through the deterrent influence of the sentences authorized, the rehabilitation of those convicted, the promotion of their successful and productive reentry and reintegration into society, and their confinement when required in the interests of public protection.

Here is one account, from Prof. Richard Frase, of the traditional set of ideas for why the state punishes people under the Criminal Law. This is an excerpt from Richard S. Frase, Punishment Purposes, 58 Stan. L. Rev. 67, 69–74 (2005):

1. Overview of Contemporary Sentencing Purposes and Limitations

.. Why should violators of criminal laws be punished, and what principles should be recognized to limit the type and degree of punishment? Punishment purposes and limitations are traditionally grouped in two categories: utilitarian and nonutilitarian. Utilitarian purposes and limitations seek to achieve beneficial effects (or a net benefit) and, in particular, lower frequency and/or seriousness of future criminal acts by this offender or others. Nonutilitarian punishment purposes and limitations embody principles of justice and fairness which are viewed as ends in themselves, without regard to whether they produce any particular social or individual benefit.

..

1. Utilitarian Purposes and Limitations

The most widely adopted utilitarian sentencing principles focus on using criminal penalties to prevent or lessen the seriousness of future criminal acts by the offender being sentenced and/or by other, would-be offenders. Criminal penalties have the potential to achieve these crime-control effects through at least five causal mechanisms: rehabilitation, incapacitation, specific deterrence, general deterrence, and denunciation. Each of these methods depends on certain critical assumptions and conditions for its effectiveness.

The first three methods seek to prevent future crimes by this particular offender; these methods thus assume both that certain defendants have an elevated risk of reoffending (justifying special measures addressed toward them specifically) and that these offenders and their degree of elevated risk can be identified in advance. Rehabilitation further assumes that the offender has identifiable and treatable problems which cause him to commit crimes; this approach seeks to reduce the offender's future criminality by addressing those causes through education and treatment in prison or in a nonprison program. Incapacitation prevents crime by imprisoning high-risk offenders, thus physically restraining them from committing further crimes against the public. This crime-control method assumes not only that such offenders can be reliably identified but also that they are not made worse by imprisonment, and that-- while in custody--they are not replaced by other offenders. Specific deterrence (also known as special or individual deterrence) seeks to discourage the defendant from committing further crimes by instilling fear of receiving the same or a more severe penalty in the future.

. . . The fourth and fifth crime-control methods, general deterrence and denunciation, are designed to prevent future crimes by members of the public at large or certain subgroups believed to have an elevated risk of offending. General deterrence seeks to discourage would-be offenders from committing further crimes by instilling a fear of receiving the penalty given to this offender. General deterrent effects depend on a number of factors: the severity of the penalty; the swiftness with which it is imposed; the probability of being caught and punished; the target group's perceptions of the severity, swiftness, and certainty of punishment; the extent to which members of the target group suffer from addiction, mental illness, or other conditions which significantly diminish their capacity to obey the law; and the extent to which these would-be offenders face competing pressures or incentives to commit crime. As a result of the combined impact of these factors, some offenses and offenders are likely to be easily deterred by the threat of criminal penalties; at the other extreme, some offenses and offenders are essentially undeterrable.

Several of the deterrence factors listed above interact. For example, a major increase in penalty severity may cause a decrease in the swiftness and/or certainty of punishment. This is because severe penalties give offenders a stronger incentive to vigorously contest the charges and may make prosecutors, judges, and juries reluctant to consistently impose such penalties. Research has found that offenders are more sensitive to the probability of punishment than to its severity. Thus, increased severity may cause crime rates to remain the same or even increase.

Punishment can also prevent crime by means of more diffuse processes that depend on internalized values rather than fear of punishment. Through denunciation (also referred to as the communicative, educative, or expressive function of punishment, or as positive general prevention) criminal penalties serve to define and reinforce important social norms of law-abiding behavior and relative crime seriousness. . . .

In addition to crime control, sentences may achieve several other important utilitarian purposes: promoting satisfaction, closure, and/or compensation for crime victims and victimized communities; reassuring the public that something is being done about crime; and facilitating the offender's successful reintegration into society. Each of these effects is desirable for its own sake but may also help to prevent future crimes by the defendant or other would-be offenders.

Utilitarian theory also imposes several important limitations on the form or severity of punishment. Criminal penalties should not cost more than the benefits they achieve or cause individual or social harms which outweigh their crime-controlling effects or other benefits. Punishment should also be efficient. Penalties should not be more severe or more costly than necessary; if the same crime-control and other benefits can be achieved with less severe or less costly methods, those methods should be preferred. In a world of limited resources, punishment must also be prioritized. Prison beds and other scarce correctional resources should be reserved for the most socially harmful offenses and offenders. Prisons must also not be used beyond their effective capacities. Overcrowded prisons are unsafe for prisoners and staff, and reduced security and resources for programming increase the odds that prisoners will leave prison more violent or antisocial than when they entered. (Overcrowded prisons are also likely to violate nonutilitarian principles, in particular the right to humane treatment discussed below.)

1. Nonutilitarian Purposes and Limitations

Retribution is the most widely recognized nonutilitarian sentencing principle. Under this theory, offenders should be punished in proportion to their blameworthiness (or desert) in committing the crime being sentenced. Two basic elements determine an offender's degree of blameworthiness: the nature and seriousness of the harm caused or threatened by the crime and the offender's degree of culpability in committing the crime. Culpability depends on several factors: the offender's intent (deliberate wrongdoing is more culpable than criminal negligence); his or her capacity to obey the law (which may be diminished by mental disease or defect, chemical dependency, or situational factors such as threats or other strong inducements to commit the crime); the offender's motives for committing the crime (which may mitigate or aggravate culpability); and, for multi-defendant crimes, the defendant's role in the offense as instigator, leader, follower, primary actor, or minor player.

Retribution can serve both as a purpose (positive justification) for punishment and as a limitation on penalties imposed to achieve other purposes. The purpose theory views retribution as the primary or even exclusive goal of punishment-- offenders are punished simply because they deserve to be and the severity of their punishment should be no more and no less than they deserve. The underlying moral arguments supporting this view often involve claims of fairness: fairness to the victim and the victim's family (whose right to seek vengeance is supplanted by the criminal law); fairness to law-abiding persons (who refrained from committing this offense); and fairness to the defendant (who, according to this theory, has a right to be punished in proportion to his blameworthiness).

. . . the limiting (negative) version of retributive theory merely sets outer limits on punishment, defining a range of permissible severity for any given case. In terms of the fairness arguments summarized above, retributive limits defining the minimum acceptable penalty reflect concerns about fairness to victims, law-abiding persons, and other offenders; upper-retributive limits, defining the maximum allowable penalty, reflect the widely shared sense that it is fundamentally unfair and an abuse of governmental power to punish an offender more severely than he deserves.

Uniformity is another very important nonutilitarian sentencing principle. . .  This combination of retributive and uniformity principles is often called the Theory of Just Deserts; offenders of comparable blameworthiness (in terms of social harm and offender culpability) should receive similar penalties, and offenders differing in blameworthiness should be punished in proportion to their respective degrees of blame. . . .

The civil and human rights of defendants provide another set of nonutilitarian limiting principles. The requirement of humane treatment forbids torture, dismemberment, and other brutal physical or psychological punishments, without regard to whether some offenders might be thought to deserve such penalties or whether the penalties could be deemed necessary and effective to achieve crime control or other utilitarian purposes. Convicts also retain First Amendment and other civil rights which may limit the form or conditions of punishment.

In 1973, the U.S. Department of Justice sponsored a National Advisory Commission on Criminal Justice Standards and Goals to study the “American Correctional System,” and after extensive research and analysis, the Commission published a report concluding that U.S. prisons, juvenile detention centers, and jails had established a “shocking record of failure.” The Commission recommended a moratorium on prison construction to last ten years. Instead, as a vast and compelling body of scholarship attests, in the years to follow, both prison construction and the U.S. prison population-- characterized by stark racial disparities--boomed. Forty years later, one in every thirty-five American adults was under criminal supervision of some form. Penal intervention had become even more alarmingly prevalent among African American men. According to some estimates, one of every three young African American men may expect to spend part of his life in prison or jail.

Apart from the inhumanity of incarceration, there is good reason to doubt the efficacy of incarceration and prison-backed policing as means of managing the complex social problems they are tasked with addressing, whether interpersonal violence, addiction, mental illness, or sexual abuse. Moreover, beyond prisons and jails, broader reliance on punitive policing to handle myriad social problems leads to routine use of excessive police force and to volatile, often violent, police-citizen relations. Yet, despite persistent and increasing recognition of the problems that attend incarceration and punitive policing in the United States, . . . abandoning carceral punishment and punitive policing remains generally unfathomable.

If prison abolition is conceptualized as an immediate and indiscriminate opening of prison doors--that is, the imminent physical elimination of all structures of incarceration-- rejection of abolition is perhaps warranted. But abolition may be understood instead as a gradual project of decarceration, in which radically different legal and institutional regulatory forms supplant criminal law enforcement. These institutional alternatives include meaningful justice reinvestment to strengthen the social arm of the state and improve human welfare; decriminalizing less serious infractions; improved design of spaces and products to reduce opportunities for offending; urban redevelopment and “greening” projects; proliferating restorative forms of redress; and creating both safe harbors for individuals at risk of or fleeing violence and alternative livelihoods for persons otherwise subject to criminal law enforcement. When abolition is conceptualized in these terms--as a transformative goal of gradual decarceration and positive regulatory substitution wherein penal regulation is recognized as morally unsustainable--then inattention to abolition . . . comes into focus as a more troubling absence. Further, the rejection of abolition as a horizon for reform mistakenly assumes that reformist critiques concern only the occasional, peripheral excesses of imprisonment and prison-backed policing rather than more fundamentally impugning the core operations of criminal law enforcement, and therefore requiring a departure from prison-backed criminal regulation to other regulatory frameworks.

https://brooklaw.instructure.com/courses/2584/files/folder/Resources%20linked%20to%20H20%20casebook?preview=430446

Tracy Rosenthal / from the New Republic

April 30, 2024

USUAL CRUELTY

The New Sundown Towns

As Grants Pass, Oregon—and the nation—await a Supreme Court ruling on just how far cities can police the homeless, a volunteer mayor and her unhoused constituents try to weather the backlash.

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On July 24, 2018, Debra Blake was banished from every park in Grants Pass, Oregon. She added the exclusion order to a growing pile of violations—for sleeping, sitting, camping, and trespassing, a mix of civil and criminal charges that accrued late fees, bench warrants, and jail stints, wrecked her credit and job prospects, and made her a known entity to police. At 59, Blake had lived in Grants Pass for almost 15 years, seven without a home. She didn’t qualify for a bed in the town’s only shelter, and there was no place she could legally rest outdoors. “It seemed like everywhere she camped she would get tickets,” a friend of hers told me. “Every night. Everywhere. Anytime the cops caught her, she was in the wrong place.”

In fall 2018, Blake sued the city for violating her constitutional rights. Friends described her to me as “motherly,” “selfless,” and “a force to be reckoned with.” By then, Blake owed the city $4,000 in fines. “I am afraid at all times in Grants Pass that I could be arrested, ticketed, and prosecuted for sleeping outside or for covering myself with a blanket to stay warm,” she testified in the lawsuit. She wasn’t alone. “I have met dozens, if not hundreds, of homeless people in Grants Pass,” she said. “They have all had similar experiences.” In September 2019, her debt cresting $5,000, Blake was banished from the parks a second time. She sought refuge beyond city limits, in places she feared were “not physically safe … far from food and other services.”

Banishment of unhoused people was the point, her class-action suit argued. Ahead of the tourist season in spring 2013, officials had held a roundtable on the city’s “vagrancy problems.” Meeting minutes rehearse now-standard talking points in our national homelessness crisis. A councilman explained the utility of punishment: “Until the pain of staying the same outweighs the pain of changing, people will not change.” The deputy police chief suggested a “sobering center” that would house people in “a jail cell with steel doors.” Other officials urged banning food distribution (“If you stop feeding them, then they will stop coming”) and posting “zero tolerance” signs at all entrances to the city. Grants Pass redesigned its municipal code to incorporate these ideas. “The point,” one councilman said, was “to make it uncomfortable enough for them in our city so they will want to move on down the road.”

Blake won her case. As Ed Johnson, Blake’s lawyer at the Oregon Law Center, told me, Grants Pass had managed to design a “set of ordinances that made it illegal to survive on every inch of public land 24 hours a day.” In 2020, the Oregon District Court ruled that the imposed fees were excessive, that exclusion orders violated due process, and that blanket criminalization constituted cruel and unusual punishment against those “engaging in the unavoidable, biological, life-sustaining acts of sleeping and resting.” Blake passed away before she could see the results: an injunction that allows homeless people to rest in Grants Pass parks for 24 hours at a time, as long as there is nowhere else for them to go. Her friend said it felt as if unhoused people “didn’t have to hide anymore.”

But the city appealed—all the way to the U.S. Supreme Court. Gripped by a right-wing supermajority, that court has already restricted abortion, undermined the Environmental Protection Agency, curtailed affirmative action, and voided pandemic eviction moratoriums. Last fall, a flood of official briefs urged the court to take up the case. Their authors included business improvement and sheriffs’ associations, archconservative think tanks like the Goldwater Institute, the liberal cities of San Francisco and Los Angeles, and California Governor Gavin Newsom, a Democrat.

Homelessness policies that fail drive electoral success, and politicians can claim an empty sidewalk—and an unsolved crisis—as a political victory.

Now a town of fewer than 40,000 people may get to rewrite the scripts of homelessness policy for the entire United States. When the court rules, likely in late June, unhoused people could lose the Eighth Amendment as a bulwark against widespread criminalization and encampment sweeps. But Grants Pass’s current practices, even under the injunction, suggest cruelty is rarely unusual. The embattled Oregon town is a microcosm of the drama now playing out among politicians, their constituents, and the fast-growing number of people who live in public space. In this bipartisan production, homelessness is portrayed as something police can deter and rehabilitation can cure. Homelessness policies that fail drive electoral success, and politicians can claim an empty sidewalk—and an unsolved crisis—as a political victory.

Grants Pass’s mayor, Sara Bristol, often wears an expression of amused exasperation. The day we met, she’d tried to dispel a Facebook rumor that nonprofit warming shelters would house undocumented immigrants. She often finds herself disputing the claim that homeless people in town are outsiders. Born in Grants Pass, not registered with either party, Bristol was elected just as the injunction settled into place, turning new clusters of tents—on green spaces abutting the Rogue River, on muddy dirt by the ball fields, on the grass strip of a road median—into Bristolvilles. In fall 2023, a group of residents campaigned for her recall, gathering signatures under signs that read TAKE BACK OUR PARKS. Bristol maintained her mandate.

…Over the last 20 years, Grants Pass nearly doubled in size. Almost a third of renters spend more than half their income on rent. The most recent “Point in Time” count logged more than 500 homeless people, a number that the count’s coordinator said was certainly an underestimation, conducted at the height of winter, when people seek shelter anywhere they can find it. Many don’t want to be found.

The city is an odd estuary of lawn-sign liberals and flag-flying conservatives. During the 2020 uprisings against police violence, an open-carry guard convened at the 140-foot American flag on Union Avenue, patrolling the roof of the local Baskin-Robbins. The county boasts the lowest property taxes in the state and hosts two secessionist movements. . . . Residents often pointed me to the legacy of the Ku Klux Klan. One unhoused person I met told me his grandfather had been a wizard.

The first time Bristol used her power to break a City Council tie, she voted to install portable toilets in the city’s parks. Some residents and officials warned the move would “encourage” homelessness, but, Bristol said, “nobody’s going to come live in Grants Pass, Oregon, because they heard there’s a Porta Potty in Riverside Park.” Nonetheless, that “if you build it, they will come” fear has suffused public comment periods, inspired town ordinances, and compromised resources from the state. When the Oregon legislature earmarked $200 million for homelessness, county supervisors refused to issue a required “state of emergency” declaration or send in an application for the funds.

“Public health, mental health, housing services are not things that the city of Grants Pass provide, but we do have parks,” Bristol said. “The city doesn’t want our parks to become homeless camps.” . . . [O]rganizers continue to protest at the parks. Vigilantes honk their horns, throw trash, and yell “carp,” meaning “bottom-feeders,” from their cars. Residents circulate photos of unhoused people on social media; one Facebook group promotes citizens taking matters into their own hands, even “final answers.” Bristol suggested I contact David Dapper. She did not mention that, in 2021, Dapper had been arrested at Tussing Park for pointing a gun at unhoused people, including one pregnant woman, and firing into the air.

Laws targeting the homeless have surged alongside homelessness itself: The number of bans on camping, resting, standing around, and asking for money all just about doubled between 2006 and 2019. But some laws have been overturned by the courts. Lawyers leveraged the First Amendment to protect panhandling and handing out food; the Fourth and Fourteenth Amendments to prevent belongings from getting destroyed in sweeps. The United States Constitution, Shayla Myers of the Legal Aid Foundation of Los Angeles said, “provides that last line of defense” for unhoused people’s civil liberties.

In September 2018, the U.S. Court of Appeals for the Ninth Circuit issued a landmark ruling governing the Western United States, where more than half of all unsheltered homeless people in the country reside. The court determined in Martin v. Boise that criminalizing the “involuntary … unavoidable consequence of being homeless,” sleeping in public, when there was no “adequate” alternative place to go, violated the Eighth Amendment’s prohibition against cruel and unusual punishment. The district court and appellate court rulings against the city of Grants Pass built on this foundation. (After Debra Blake’s death, the case was named City of Grants Pass v. Johnson for another unhoused plaintiff, Gloria Johnson.) The city’s ordinances had attempted to distinguish the necessity “sleeping” from voluntary “camping,” the latter signaled by the presence of anything that would separate a person from the elements, including a tent, a bedroll, cardboard, or a blanket. But staying warm and dry, the courts said, was as necessary as rest. The town’s use of civil rather than criminal penalties could not evade the amendment either.

. . . Theane Evangelis wrote in an email to me that Eighth Amendment rulings “are harming the very people they purport to protect.” A white paper Evangelis co-wrote expands on this view: Camping bans are “decades-old, ordinary, municipal laws” that prevent the spread of encampments, incubators of deadly diseases and drug use that victimize unhoused people and threaten surrounding residents and businesses. The paper also highlights the “axiomatic” function of anti-homeless laws as deterrence: Like laws against every other criminal activity, the threat of punishment dissuades people from living on the streets. Eighth Amendment rulings, by contrast, are an invitation tantamount to “a constitutional right to camp in public.”

But even under the rulings, the authors observed, cities are free to issue time, manner, and place restrictions on people sleeping or camping in public space. And the rulings have “no effect on laws prohibiting drug dealing, violent criminal activity, and conduct that poses environmental and health hazards.”

…[T]here is often little daylight between Democrats and Republicans in their efforts to engineer cities as sundown towns. It wasn’t Idaho where unhoused people first called on the Eighth Amendment to protect themselves from criminalization; that distinction was California’s. In a 2007 settlement, the court struck down 41.18, Los Angeles’s “sit-lie” law, a ban on sitting, sleeping, lying, and storing property in public. San Francisco now boasts 24 unique anti-homeless laws. Recent reports show unhoused people account for a disproportionate number of arrests, even in liberal strongholds: one in six in L.A., and one in two in Portland.

. . . Liberal cities met Martin not as an opportunity to diversify their efforts to house people, but to creatively remove them within the confines of the law. In 2021, Los Angeles updated its sit-lie law with exclusion zones—around parks, schools, libraries, underpasses, and shelters—which effectively if not technically blanket the city. Other cities responded to Martin’s demand that unhoused people need “alternative” places to sleep before they can be ticketed or arrested by codifying it into a cold calculus of beds versus tents. Both San Diego and Las Vegas now issue misdemeanors for camping if shelter space exists. “The right to shelter must be paired with the obligation to use it,” Sacramento Mayor Darrell Steinberg has said. In other words, unhoused people must accept shelter at the penalty of fines or imprisonment.

Democrats have their own rhetoric of deterrence, a “tough love” imbrication of coercion and care. Criminalization, San Francisco explains in its brief in the Grants Pass case, is essential “to encourage individuals … to accept services.” This model fastens the stick of policing to the carrot of shelter and rehabilitation. Punishment helps unhoused people make a choice that ultimately serves them. One sociologist termed this approach “therapeutic policing.”

But research shows that criminalization perpetuates rather than discourages homelessness, disqualifying unhoused people from the support they need, including federal housing benefits. A criminal record and credit scores wrecked by civil debt mean fewer employers or landlords willing to give them a chance. In the short term, arrests and sweeps interrupt the efforts of service providers. Unhoused people lose medication, critical documents, survival gear, and fragile support networks, losses that compound the physical and emotional toll of living outdoors.

When voters demand action on homelessness, sweeps are a useful but temporary fix; politicians keen to show progress on the issue resort to shuffling the problem around. In two years, according to L.A.’s own data, 81 percent of encampments reemerged after “sit-lie” enforcement. In Seattle, exclusion orders ultimately failed to prevent people from living in parks. In one San Francisco study, most of the 350 homeless people interviewed said sweeps pushed them just a few blocks away.

When sweeps fail, politicians blame the courts. In August 2023, Mayor Breed joined a protest on the steps of the Ninth Circuit Court, decrying a recent injunction, which found that the city would sweep, cite, and arrest unhoused people when no alternative shelter existed to offer them; the wait list for its shelters was 1,000 people long. Standing in front of a sign that read DON’T RYUN SF (after Judge Donna Ryu, who issued the order), Breed accused the courts of “micromanag[ing]” her efforts to clear encampments. She was “sick and tired of being sick and tired,” she said, quoting civil rights leader Fannie Lou Hamer.

With a flurry of final, mostly neutral briefs sent to the court this spring, liberal cities supported the Grants Pass case as a vehicle to limit or clarify lower court rulings. San Francisco’s brief demanded the freedom “to enforce the will” of its voters. Los Angeles asked whether a count of all homeless individuals is required every day before it can enforce its laws. (The city has three times more unhoused people than shelter beds.) Shayla Myers called these bids disingenuous, even dangerous: No court has blocked anything besides blanket restrictions, cities have ample room to say where unhoused people can be, and the Supreme Court is in a frenzy of “overturning rights.”

California’s Governor Newsom sent his own plea that the court take the case, admitting it was a “hell of a statement for a progressive Democrat.” His final, neutral brief insists that he does not support the criminalization of homelessness. But his warning that lower courts have erected a “roadblock” that “hamstring[s]” cities echoes Grants Pass’s own suit, which uses the same words; Grants Pass’s attorney, who says they’ve “tied the hands” of officials; and the dissenting Ninth Circuit judge, who wrote that while Martin “handcuffed local jurisdictions,” Grants Pass “places them in a straitjacket.”

“I’m in the cyclical hell that everyone else is in,” John Babb told me. That morning, his and every other tent in Baker Park had been orange-tagged. Around 7 a.m., Grants Pass police made their twice-weekly rounds, issuing notices to pack up and move. The “Public Notice of Illegal Camping,” printed on 8 x 10 orange copy paper, instructs recipients, “Your campsite is subject to involuntary removal” 72 hours after issuance.

A “compulsive rule follower,” Babb had situated his tent strategically: a dozen feet away from the banks of the Rogue River, far enough from Department of Transportation property under the bridge and the two “buffer zones” surrounding the paths on either side of him. I sat on a thick navy blue poster board rolled out in front of his tent. Babb, in a waffle-knit long sleeve and narrow black jeans, kept the door flap around him like a shawl. The night’s temperatures had dropped into the 20s, and the morning sun was only just breaking up the chill.

Despite her detractors’ accusations of leniency, Mayor Bristol has overseen a crackdown on encampments. Forcing houseless people to relocate, Bristol said, “helps make it so that people don’t have a sense of permanency, like they own that square of the park.” Even under the injunction, the city can issue tickets for illegal camping with 24 hours’ notice. In a nearly five-hour council meeting in June 2023, the city introduced further rules. It prohibited “scattering rubbish,” using propane heaters, and public needle exchanges (which can halve the spread of HIV and hepatitis C); it established “buffer zones” around walkways and pavilions; and it limited park users to taking up a total spatial footprint of eight feet by eight feet. Police had made rounds sizing up tents to inform the decision: “Six by eight looked OK to me,” the chief explained. “Ten by 10 did not look OK to me.” Most violations earn a ticket for $295—$537 if left unpaid. During public comment, one resident argued: “Rights aren’t given; they’re earned with responsibilities. Everybody has to earn their rights.”

Two police officers, Tim Artoff and Jason McGinnis, make up Grants Pass’s Community Response Team, dedicated to enforcing the city’s ordinances at its parks. (Neither the officers nor the police chief responded to interview requests.) Babb went to high school with Artoff, whom Babb remembers with a mullet and acne. Every unhoused person I talked to knew both officers by name. The entire Grants Pass police force has fewer than 60 officers; about six are on patrol at a time. In short, a full third of the city’s resources for public safety—itself almost a third of the city’s budget—are directed to policing its unhoused residents.

Babb had just passed his two-year anniversary of living outside. When he lost both his parents, whom he called his “best friends,” he couldn’t remain in the house they shared. Then the city impounded his car, and he went from “cushy homeless” to living outdoors. Without the care of his mother, he had to face the challenge of “learning to adult” at 52. Babb was ambivalent about standing out in the community as “an English major,” an “Eskimo,” and gay. People “go out of their way to paint everyone with the same brush, like, ‘Well, they just don’t want to work. They’re useless drug addicts,’” he said. For the resources to stand up for himself, he sometimes turned to Debra Blake’s memory.

“With every fiber of my being, I know that I’m not going to be in this circumstance forever,” he said. But life outdoors puts up roadblocks to getting out: “It’s a vicious cycle.… It kind of compounds and compounds.” He has lost four IDs. Moving wears down his gear and triggers his arthritis. His phone charger had been soaked through in a recent storm—not that he could find somewhere to plug it in. The city’s ordinances, even under the injunction, erect their own obstacles. “Two tickets. That’s all I make in a year.”

That morning, Babb had walked the half-mile to Riverside Park, where a host of volunteers and nonprofits deliver the city’s only services, providing wound care and distributing groceries, gloves, and naloxone. The city itself has restricted access to electricity, trash cans, bathrooms, and running water at its parks. Asked about the specifics of “scattering rubbish” violations, Artoff once said, “I don’t know it by heart.… It includes garbage and other items of personal property”—a slippage between trash and houseless people’s belongings. Of the relentless cycle of sweeps, one person told me, “The cops run them around like they’re goddamn farm animals.” People have to pick up everything they own and move it between the only places they are allowed to be—one pen to another.

Criminalizing homelessness is an increasingly organized effort on the right. In 2021, Joe Lonsdale, a co-founder of the Palantir data analysis company, bankrolled a camping ban in Austin. He helped establish the Cicero Institute to take that campaign national. Already passed, introduced, or adapted in 12 states, Cicero’s template legislation bans camping statewide—at the penalty of a $5,000 fine and a month in prison—and redirects all but 10 percent of homelessness funding from permanent to temporary housing, with mandatory drug treatment. One policy director summarized the strategy as “treatment first, not Housing First.”

Ironically, the right is seeking to undo a framework popularized under George W. Bush. Before Bush, federal policies prioritized short-term shelter, offering permanent housing as a reward for sobriety and employment. Housing First promised the opposite: unconditional, permanent housing with voluntary mental health and substance care. Appeasing fiscal and humanitarian concerns and once enjoying bipartisan support, Housing First has been shown to use public resources efficiently—housing people costs less than repeatedly incarcerating and hospitalizing them—and to keep people housed over the long term. The framework has been adopted widely. It’s the official policy of the state of California and the Department of Veterans Affairs. It gets preference for federal grants. But no level of government has built anywhere near enough permanent housing to keep pace with the growing number of houseless people.

. . . Cutting swiftly between shots of unhoused people in distress, a video by the Cicero Institute and PragerU warns that cities with rising homeless populations “have one policy in common: Housing First.” It makes the case that homelessness “is not a poverty problem…. The root of the problem is mental illness and addiction.” Rejecting, in Lonsdale’s words, “the Marxist idea that American capitalism causes homelessness,” conservatives insist that criminalization and mandatory treatment will promote personal accountability and get people off the streets. . . .

Nationally, unhoused people with such problems are in the minority: 21 percent struggle with a serious mental illness; 16 percent with substance abuse. Studies reflect that forced treatment doesn’t stop drug use. Nor does drug treatment treat homelessness. Of almost 200,000 homeless people who entered substance treatment, one study demonstrated, nearly 70 percent remained homeless afterward. Treatment programs will also prove difficult to expand; they already face critical staff shortages.

. . . David Peery, who served as class representative of unhoused people in a suit against the city of Miami, locates unhoused people’s struggles with addiction in the experience of living outdoors: They turn to substances when it’s too cold or uncomfortable to sleep, for help staying awake when there’s no place to rest, or to address pain when they can’t access medical care. Without stable housing, they look for the predictability of a hit. Recently, concerns about unhoused people’s drug use fueled a backlash against a 2020 Oregon state measure that had decriminalized possession of small amounts of illicit drugs. Accused of enabling addiction and encouraging public disorder, the measure now sits on the governor’s desk for repeal.

The concerns echo in Grants Pass. The Sobering Center that the city planned in its vagrancy roundtable opened its doors in 2016. The facility consists of 12 locked rooms, where people can stay for up to 24 hours. Almost half of its nightly inhabitants are placed there by the police. The town’s only shelter, the Gospel Rescue Mission, has a zero-tolerance approach: sobriety from drugs, alcohol, even nicotine; residents have to quit smoking to qualify for one of the 138 beds. The “pray-to-stay” facility’s 29 rules also include attending church services that follow the dictates of the “Apostles’ Creed,” not interacting with members of the opposite sex, and presenting oneself in line with one’s “birth gender.” (I am personally out on three counts.) Residents must work 40 hours a week at the mission and can’t look for a job elsewhere. Executive director Brian Bouteller defends his shelter’s strict rules and advocates stricter enforcement at parks. In a recent video, he describes people living in the parks as “can and won’t”: They can leave homelessness but won’t, because they are receiving “free needles,” meals, and medical care.

. . . Ignoring the systemic math of tattered social safety nets, stagnant wages, and rising rents, politicians often frame homelessness as an individual choice, even a “lifestyle.” Homeless people are deemed “service resistant” when they choose a tent over a space indoors, even when that space is temporary or separates them from their community or belongings. . . .

Behavioral modification is as old as the poorhouse, where residents were forced to break rocks to earn a shelter bed. I often fear the future of homelessness policy may look like a regression into that past. Palantir co-founder Joe Lonsdale speaks wistfully of the terms “vagrants, bums, tramps.” London Breed just won mandatory drug treatment for welfare recipients, a policy revived from the Reagan years. Gavin Newsom is bent on reopening the asylums, shuttered slowly after John F. Kennedy’s term. Housing First’s right-wing detractors exploit a 1950s playbook of assaults on public housing. . . . At its most expansive, Housing First could do what public housing promised, ensuring no one went without a home. But local opposition, chronic underfunding, and eligibility requirements that invite only the most visibly homeless indoors have reduced Housing First, Uppsala’s Don Mitchell said, to yet another “treatment program,” treating the visible symptoms of homelessness rather than the disease. What is languishing may not be unhoused people in public space, but a sense of political possibility, constrained by the effort it takes just to stop things from getting worse.

Tracy Rosenthal has written for The Nation, the Los Angeles Times, and elsewhere. Rosenthal’s book, Abolish Rent, written with Leonardo Vilchis, is forthcoming from Haymarket Books.

The full article can be found here: https://newrepublic.com/article/181036/new-sundown-towns-grants-pass-v-johnson

144 S.Ct. 2202

Supreme Court of the United States.

CITY OF GRANTS PASS, OREGON, Petitioner

v.

Gloria JOHNSON, et al., on behalf of themselves and all others similarly situated

No. 23-175

|

Argued April 22, 2024

|

Decided June 28, 2024

GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, ALITO, KAVANAUGH, and BARRETT, JJ., joined. THOMAS, J., filed a concurring opinion. SOTOMAYOR, J., filed a dissenting opinion, in which KAGAN and JACKSON, JJ., joined.

.

Opinion

Justice GORSUCH delivered the opinion of the Court.

*2207 Many cities across the American West face a homelessness crisis. The causes are varied and complex, the appropriate public *2208 policy responses perhaps no less so. Like many local governments, the city of Grants Pass, Oregon, has pursued a multifaceted approach. Recently, it adopted various policies aimed at “protecting the rights, dignity[,] and private property of the homeless.” App. 152. It appointed a “homeless community liaison” officer charged with ensuring the homeless receive information about “assistance programs and other resources” available to them through the city and its local shelter. Id., at 152–153; Brief for Grants Pass Gospel Rescue Mission as Amicus Curiae 2–3. And it adopted certain restrictions against encampments on public property. App. 155–156. The Ninth Circuit, however, held that the Eighth Amendment's Cruel and Unusual Punishments Clause barred that last measure. With support from States and cities across the country, Grants Pass urged this Court to review the Ninth Circuit's decision. We take up that task now.

I

A

Some suggest that homelessness may be the “defining public health and safety crisis in the western United States” today. 72 F.4th 868, 934 (CA9 2023) (Smith, J., dissenting from denial of rehearing en banc). According to the federal government, homelessness in this country has reached its highest levels since the government began reporting data on the subject in 2007. Dept. of Housing and Urban Development, Office of Community Planning & Development, T. de Sousa et al., The 2023 Annual Homeless Assessment Report (AHAR) to Congress 2–3 (2023). California alone is home to around half of those in this Nation living without shelter on a given night. Id., at 30. And each of the five States with the highest rates of unsheltered homelessness in the country—California, Oregon, Hawaii, Arizona, and Nevada—lies in the American West. Id., at 17.

Those experiencing homelessness may be as diverse as the Nation itself—they are young and old and belong to all races and creeds. People become homeless for a variety of reasons, too, many beyond their control. Some have been affected by economic conditions, rising housing costs, or natural disasters. Id., at 37; see Brief for United States as Amicus Curiae 2–3. Some have been forced from their homes to escape domestic violence and other forms of exploitation. Ibid. And still others struggle with drug addiction and mental illness. By one estimate, perhaps 78 percent of the unsheltered suffer from mental-health issues, while 75 percent struggle with substance abuse. See J. Rountree, N. Hess, & A. Lyke, Health Conditions Among Unsheltered Adults in the U. S., Calif. Policy Lab, Policy Brief 5 (2019).

Those living without shelter often live together. L. Dunton et al., Dept. of Housing and Urban Development, Office of Policy Development & Research, Exploring Homelessness Among People Living in Encampments and Associated Cost 1 (2020) (2020 HUD Report). As the number of homeless individuals has grown, the number of homeless encampments across the country has increased as well, “in numbers not seen in almost a century.” Ibid. The unsheltered may coalesce in these encampments for a range of reasons. Some value the “freedom” encampment living provides compared with submitting to the rules shelters impose. Dept. of Housing and Urban Development, Office of Policy Development and Research, R. Cohen, W. Yetvin, & J. Khadduri, Understanding Encampments of People Experiencing Homelessness and Community Responses 5 (2019). Others report that encampments offer a “sense of community.” Id., at 7. And still others may seek them out for *2209 “dependable access to illegal drugs.” Ibid. In brief, the reasons why someone will go without shelter on a given night vary widely by the person and by the day. See ibid.

As the number and size of these encampments have grown, so have the challenges they can pose for the homeless and others. We are told, for example, that the “exponential increase in ... encampments in recent years has resulted in an increase in crimes both against the homeless and by the homeless.” Brief for California State Sheriffs’ Associations et al. as Amici Curiae 21 (California Sheriffs Brief). California's Governor reports that encampment inhabitants face heightened risks of “sexual assault” and “subjugation to sex work.” Brief for California Governor G. Newsom as Amicus Curiae 11 (California Governor Brief). And by one estimate, more than 40 percent of the shootings in Seattle in early 2022 were linked to homeless encampments. Brief for Washington State Association of Sheriffs and Police Chiefs as Amicus Curiae on Pet. for Cert. 10 (Washington Sheriffs Brief).

Other challenges have arisen as well. Some city officials indicate that encampments facilitate the distribution of drugs like heroin and fentanyl, which have claimed the lives of so many Americans in recent years. Brief for Office of the San Diego County District Attorney as Amicus Curiae 17–19. Without running water or proper sanitation facilities, too, diseases can sometimes spread in encampments and beyond them. Various States say that they have seen typhus, shigella, trench fever, and other diseases reemerge on their city streets. California Governor Brief 12; Brief for Idaho et al. as Amici Curiae 7 (States Brief). . . . 

Communities of all sizes are grappling with how best to address challenges like these. As they have throughout the Nation's history, charitable organizations “serve as the backbone of the emergency shelter system in this country,” accounting for roughly 40 percent of the country's shelter beds for single adults on a given night. See National Alliance To End Homelessness, Faith-Based Organizations: Fundamental Partners in Ending Homelessness 1 (2017). Many private organizations, city officials, and States have worked, as well, to increase the availability of affordable housing in order to provide more permanent shelter for those in need. See Brief for Local Government Legal Center et al. as Amici Curiae 4, 32 (Cities Brief). But many, too, have come to the conclusion that, as they put it, “[j]ust building more shelter beds and public housing options is almost certainly not the answer by itself.” Id., at 11.

As many cities see it, even as they have expanded shelter capacity and other public services, their unsheltered populations have continued to grow. Id., at 9–11. The city of Seattle, for example, reports that *2210 roughly 60 percent of its offers of shelter have been rejected in a recent year. See id., at 28, and n. 26. Officials in Portland, Oregon, indicate that, between April 2022 and January 2024, over 70 percent of their approximately 3,500 offers of shelter beds to homeless individuals were declined. Brief for League of Oregon Cities et al. as Amici Curiae 5 (Oregon Cities Brief). Other cities tell us that “the vast majority of their homeless populations are not actively seeking shelter and refuse all services.” Brief for Thirteen California Cities as Amici Curiae 3. Surveys cited by the Department of Justice suggest that only “25–41 percent” of “homeless encampment residents” “willingly” accept offers of shelter beds. See Dept. of Justice, Office of Community Oriented Policing Services, S. Chamard, Homeless Encampments 36 (2010).

The reasons why the unsheltered sometimes reject offers of assistance may themselves be many and complex. Some may reject shelter because accepting it would take them further from family and local ties. See Brief for 57 Social Scientists as Amici Curiae 20. Some may decline offers of assistance because of concerns for their safety or the rules some shelters impose regarding curfews, drug use, or religious practices. Id., at 22; see Cities Brief 29. Other factors may also be at play. But whatever the causes, local governments say, this dynamic significantly complicates their efforts to address the challenges of homelessness. See id., at 11.

Rather than focus on a single policy to meet the challenges associated with homelessness, many States and cities have pursued a range of policies and programs. See 2020 HUD Report 14–20. Beyond expanding shelter and affordable housing opportunities, some have reinvested in mental-health and substance-abuse treatment programs. See Brief for California State Association of Counties et al. as Amici Curiae 20, 25; see also 2020 HUD Report 23. Some have trained their employees in outreach tactics designed to improve relations between governments and the homeless they serve. Ibid. And still others have chosen to pair these efforts with the enforcement of laws that restrict camping in public places, like parks, streets, and sidewalks. Cities Brief 11.

Laws like those are commonplace. By one count, “a majority of cities have laws restricting camping in public spaces,” and nearly forty percent “have one or more laws prohibiting camping citywide.” See Brief for Western Regional Advocacy Project as Amicus Curiae 7, n. 15 (emphasis deleted). 

Different governments may use these laws in different ways and to varying degrees. See Cities Brief 11. But many broadly agree that “policymakers need access to the full panoply of tools in the policy toolbox” to “tackle the complicated issues of housing and homelessness.” California Governor Brief 16; accord, Cities Brief 11; Oregon Cities Brief 17.

B

Five years ago, the U. S. Court of Appeals for the Ninth Circuit took one of those tools off the table. In Martin v. Boise, 920 F.3d 584 (2019), that court considered a public-camping ordinance in Boise, Idaho, that made it a misdemeanor to use “streets, sidewalks, parks, or public places” for “camping.” Id., at 603 (internal quotation marks omitted). According to the Ninth Circuit, the Eighth Amendment's Cruel and Unusual Punishments Clause barred Boise from enforcing its public-camping ordinance against homeless individuals who lacked “access to alternative shelter.” Id., at 615. That “access” was lacking, the court said, whenever “ ‘there is a greater number of homeless individuals in a jurisdiction than the number of available beds in shelters.’ ” Id., at 617 (alterations omitted). According to the Ninth Circuit, nearly three quarters of Boise's shelter beds were not “practically available” because the city's charitable shelters had a “religious atmosphere.” Id., at 609–610, 618. Boise was thus enjoined from enforcing its camping laws against the plaintiffs. Ibid.

. . .

After Martin, similar suits proliferated against Western cities within the Ninth Circuit. As Judge Smith put it, “[i]f one picks up a map of the western United States and points to a city that appears on it, there is a good chance that city has already faced” a judicial injunction based on Martin or the threat of one “in the few short years since [the Ninth Circuit] initiated its Martin experiment.” 72 F.4th, at 940; see, e.g., Boyd v. San Rafael, 2023 WL 7283885, *1–*2 (ND Cal., Nov. 2, 2023); Fund for Empowerment v. Phoenix, 646 F.Supp.3d 1117, 1132 (D Ariz. 2022); Warren v. Chico, 2021 WL 2894648, *3 (ED Cal., July 8, 2021).

. . . 

C

The case before us arises from a Martin injunction issued against the city of Grants Pass. Located on the banks of the Rogue River in southwestern Oregon, the city is home to roughly 38,000 people. Among them are an estimated 600 individuals who experience homelessness on a given day. 72 F.4th, at 874; App. to Pet. for Cert. 167a–168a; 212a–213a.

Like many American cities, Grants Pass has laws restricting camping in public spaces. Three are relevant here. The first prohibits sleeping “on public sidewalks, streets, or alleyways.” Grants Pass Municipal Code § 5.61.020(A) (2023); App. to Pet. for Cert. 221a. The second prohibits “[c]amping” on public property. § 5.61.030; App. to Pet. for Cert. 222a (boldface deleted). Camping is defined as “set[ting] up ... or remain[ing] in or at a campsite,” and a “[c]ampsite” is defined as “any place where bedding, sleeping bag[s], or other material used for bedding purposes, or any stove or fire is placed ... for the purpose of maintaining a temporary place to live.” §§ 5.61.010(A)–(B); App. to Pet. for Cert. 221a. The third prohibits “[c]amping” and “[o]vernight parking” in the city's parks. §§ 6.46.090(A)–(B); 72 F.4th, at 876. Penalties for violating these ordinances escalate stepwise. An initial violation may trigger a fine. §§ 1.36.010(I)–(J). Those who receive multiple citations may be subject to an order barring them from city parks for 30 days. § 6.46.350; App. to Pet. for Cert. 174a. And, in turn, violations of those orders can constitute criminal trespass, punishable by a maximum of 30 days in prison and a $1,250 fine. Ore. Rev. Stat. §§ 164.245, 161.615(3), 161.635(1)(c) (2023).

. . . [S]hortly after the panel decision in Martin, two homeless individuals, Gloria Johnson and John Logan, filed suit challenging the city's public-camping laws. App. 37, Third Amended Complaint ¶¶6–7. They claimed, among other things, that the city's ordinances violated the Eighth Amendment's Cruel and Unusual Punishments Clause. Id., at 51, ¶66. And they *2214 sought to pursue their claim on behalf of a class encompassing “all involuntarily homeless people living in Grants Pass.” Id., at 48, ¶52.²

The district court certified the class action and enjoined the city from enforcing its public-camping laws against the homeless. . . . [T]he court found, everyone without shelter in Grants Pass was “involuntarily homeless” because the city's total homeless population outnumbered its “ ‘practically available’ ” shelter beds. App. to Pet. for Cert. 179a, 216a. In fact, the court ruled, none of the beds at Grants Pass's charity-run shelter qualified as “available.” They did not, the court said, both because that shelter offers something closer to transitional housing than “temporary emergency shelter,” and because the shelter has rules requiring residents to abstain from smoking and attend religious services. Id., at 179a–180a. The Eighth Amendment, the district court thus concluded, prohibited Grants Pass from enforcing its laws against homeless individuals in the city. Id., at 182a–183a.

. . .

Grants Pass filed a petition for certiorari. A large number of States, cities, and counties from across the Ninth Circuit and the country joined Grants Pass in urging the Court to grant review to assess the Martin experiment. See Part I–B, supra. We agreed to do so. 601 U. S. ––––, 144 S.Ct. 679, 217 L.Ed.2d 341 (2024).³

 II

A

The Constitution and its Amendments impose a number of limits on what governments in this country may declare to be criminal behavior and how they may go about enforcing their criminal laws. Familiarly, the First Amendment prohibits governments from using their criminal laws to abridge the rights to speak, worship, assemble, petition, and exercise the freedom of the press. The Equal Protection Clause of the Fourteenth Amendment prevents governments from adopting laws that invidiously discriminate between persons. The Due Process Clauses of the Fifth and Fourteenth Amendments ensure that officials may not displace certain rules associated with criminal liability that are “so old and venerable,” “ ‘so rooted in the traditions and conscience of our people[,] as to be ranked as fundamental.’ ” Kahler v. Kansas, 589 U.S. 271, 279, 140 S.Ct. 1021, 206 L.Ed.2d 312 (2020) (quoting Leland v. Oregon, 343 U.S. 790, 798, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952)). The Fifth and Sixth Amendments require prosecutors and courts to observe various procedures before denying any person of his liberty, promising for example that every person enjoys the right to confront his accusers and have serious criminal charges resolved by a jury of his peers. One could go on.

But if many other constitutional provisions address what a government may criminalize and how it may go about securing a conviction, the Eighth Amendment's prohibition against “cruel and unusual punishments” focuses on what happens next. That Clause “has always been considered, and properly so, to be directed at the method or kind of punishment” a government may “impos[e] for the violation of criminal statutes.” Powell v. Texas, 392 U.S. 514, 531–532, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968) (plurality opinion).

We have previously discussed the Clause's origins and meaning. In the 18th century, English law still “formally tolerated” certain barbaric punishments like “disemboweling, quartering, public dissection, and burning alive,” even though those practices had by then “fallen into disuse.” Bucklew v. Precythe, 587 U.S. 119, 130, 139 S.Ct. 1112, 203 L.Ed.2d 521 (2019) (citing 4 W. Blackstone, Commentaries on the Laws *2216 of England 370 (1769) (Blackstone)). The Cruel and Unusual Punishments Clause was adopted to ensure that the new Nation would never resort to any of those punishments or others like them. Punishments like those were “cruel” because they were calculated to “ ‘superad[d]’ ” “ ‘terror, pain, or disgrace.’ ” 587 U.S., at 130, 139 S.Ct. 1112 (quoting 4 Blackstone 370). And they were “unusual” because, by the time of the Amendment's adoption, they had “long fallen out of use.” 587 U.S., at 130, 139 S.Ct. 1112. . . .

All that would seem to make the Eighth Amendment a poor foundation on which to rest the kind of decree the plaintiffs seek in this case and the Ninth Circuit has endorsed since Martin. The Cruel and Unusual Punishments Clause focuses on the question what “method or kind of punishment” a government may impose after a criminal conviction, not on the question whether a government may criminalize particular behavior in the first place or how it may go about securing a conviction for that offense. Powell, 392 U.S., at 531–532, 88 S.Ct. 2145. To the extent the Constitution speaks to those other matters, it does so, as we have seen, in other provisions.

Nor, focusing on the criminal punishments Grant Pass imposes, can we say they qualify as cruel and unusual. Recall that, under the city's ordinances, an initial offense may trigger a civil fine. Repeat offenses may trigger an order temporarily barring an individual from camping in a public park. Only those who later violate an order like that may face a criminal punishment of up to 30 days in jail and a larger fine. See Part I–C, supra. None of the city's sanctions qualifies as cruel because none is designed to “superad[d]” “terror, pain, or disgrace.” Bucklew, 587 U.S., at 130, 139 S.Ct. 1112 (internal quotation marks omitted). . . .

B

Instead, the plaintiffs and the dissent pursue an entirely different theory. . . .  [E]choing the Ninth Circuit in Martin, they insist one notable exception exists.

In Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), the plaintiffs and the dissent observe, this Court addressed a challenge to a criminal conviction under a California statute providing that “ ‘[n]o person shall ... be addicted to the use of narcotics.’ ” Ibid., n. 1. In response to that challenge, the Court invoked the Cruel and Unusual Punishments Clause to hold that California could not enforce its law making “the ‘status’ of narcotic addiction a criminal offense.” Id., at 666, 82 S.Ct. 1417. The Court recognized that “imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual.” Id., at 667, 82 S.Ct. 1417. But, the Court reasoned, when punishing “ ‘status,’ ” “[e]ven one day in prison would be ... cruel and unusual.” Id., at 666–667, 82 S.Ct. 1417.

. . . [T]he Court read[] the Cruel and Unusual Punishments Clause to impose a limit not just on what punishments may follow a criminal conviction but what a State may criminalize to begin with. It was a view unprecedented in the history of the Court before 1962. In dissent, Justice White lamented that the majority had embraced an “application of ‘cruel and unusual punishment’ so novel that” it could not possibly be “ascribe[d] to the Framers of the Constitution.” 370 U.S., at 689, 82 S.Ct. 1417. Nor, in the 62 years since Robinson, has this Court once invoked it as authority to decline the enforcement of any criminal law, leaving the Eighth Amendment instead to perform its traditional function of addressing the punishments that follow a criminal conviction.

Still, no one has asked us to reconsider Robinson. Nor do we see any need to do so today. Whatever its persuasive force as an interpretation of the Eighth Amendment, it cannot sustain the Ninth Circuit's course since Martin. In Robinson, the Court expressly recognized the “broad power” States enjoy over the substance of their criminal laws, stressing that they may criminalize knowing or intentional drug use even by those suffering from addiction. 370 U.S., at 664, 666, 82 S.Ct. 1417. The Court held only that a State may not criminalize the “ ‘status’ ” of being an addict. Id., at 666, 82 S.Ct. 1417. In criminalizing a mere status, Robinson stressed, California had taken a historically anomalous approach toward criminal liability. One, in fact, this Court has not encountered since Robinson itself.

Public camping ordinances like those before us are nothing like the law at issue in Robinson. Rather than criminalize mere status, Grants Pass forbids actions like “occupy[ing] a campsite” on public property “for the purpose of maintaining a temporary place to live.” Grants Pass Municipal Code §§ 5.61.030, 5.61.010; App. to Pet. for Cert. 221a–222a. Under the city's laws, it makes no difference whether the charged defendant is homeless, a backpacker on vacation passing through town, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building. See Part I–C, supra; Blake v. Grants Pass, No. 1:18–cv–01823 (D Ore.), ECF Doc. 63–4, pp. 2, 16; Tr. of Oral Arg. 159. In that respect, the city's laws parallel those found in countless jurisdictions across the country. See Part I–A, supra. And because laws like these do not criminalize mere status, Robinson is not implicated.⁵

 C

If Robinson does not control this case, the plaintiffs and the dissent argue, we should extend it so that it does. Perhaps a person does not violate ordinances like Grants Pass's simply by being homeless but only by engaging in certain acts (actus rei) with certain mental states (mentes reae). Still, the plaintiffs and the dissent insist, laws like these seek to regulate actions that are in some sense “involuntary,” for some homeless persons cannot help but do what the law forbids. See Brief for Respondents 24–25, 29, 32; post, at 2236 - 2237 (opinion of SOTOMAYOR, J.). And, the plaintiffs and the dissent continue, we should extend Robinson to prohibit the enforcement of laws that operate this way—laws that don't proscribe status as such but that proscribe acts, even acts undertaken with some required mental state, the defendant cannot help but undertake. Post, at 2236 - 2237. To rule otherwise, the argument goes, would “ ‘effectively’ ” allow cities to punish a person because of his status. Post, at 2241. The Ninth Circuit pursued just this line of thinking below and in Martin.

The problem is, this Court has already rejected that view. In Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968), the Court confronted a defendant who had been convicted under a Texas statute making it a crime to “ ‘get drunk or be found in a state of intoxication in any public place.’ ” Id., at 517, 88 S.Ct. 2145 (plurality opinion). Like the plaintiffs here, Mr. Powell argued that his drunkenness was an “ ‘involuntary’ ” byproduct of his status as an alcoholic. Id., at 533, 88 S.Ct. 2145. Yes, the statute required proof of an act (becoming drunk or intoxicated and then proceeding into public), and perhaps some associated mental state (for presumably the defendant knew he was drinking and maybe even knew he made his way to a public place). Still, Mr. Powell contended, Texas's law effectively criminalized his status as an alcoholic because he could not help but doing as he did. Ibid.  Justice Fortas embraced that view, but only in dissent: He would have extended Robinson to cover conduct that flows from any “condition [the defendant] is powerless to change.” 392 U.S., at 567, 88 S.Ct. 2145 (Fortas, J., dissenting).

The Court did not agree. Writing for a plurality, Justice Marshall observed that Robinson had authorized “a very small” intrusion by courts “into the substantive criminal law” “under the aegis of the Cruel and Unusual Punishment[s] Clause.” 392 U.S., at 533, 88 S.Ct. 2145. That small intrusion, Justice Marshall said, prevents States only from enforcing laws that criminalize “a mere status.” Id., at 532, 88 S.Ct. 2145. It does nothing to curtail a State's authority to secure a conviction when “the accused has committed some act ... society has an interest in preventing.” Id., at 533, 88 S.Ct. 2145. . . .

*2220 This case is no different from Powell. Just as there, the plaintiffs here seek to expand Robinson’s “small” intrusion “into the substantive criminal law.” Just as there, the plaintiffs here seek to extend its rule beyond laws addressing “mere status” to laws addressing actions that, even if undertaken with the requisite mens rea, might “in some sense” qualify as “ ‘involuntary.’ ” And just as Powell could find nothing in the Eighth Amendment permitting that course, neither can we. As we have seen, Robinson already sits uneasily with the Amendment's terms, original meaning, and our precedents. Its holding is restricted to laws that criminalize “mere status.” Nothing in the decision called into question the “broad power” of States to regulate acts undertaken with some mens rea. And, just as in Powell, we discern nothing in the Eighth Amendment that might provide us with lawful authority to extend Robinson beyond its narrow holding. . . .

D

Not only did Powell decline to extend Robinson to “involuntary” acts, it stressed *2221 the dangers that would likely attend any attempt to do so. Were the Court to pursue that path in the name of the Eighth Amendment, Justice Marshall warned, “it is difficult to see any limiting principle that would serve to prevent this Court from becoming ... the ultimate arbiter of the standards of criminal responsibility, in diverse areas of the criminal law, throughout the country.” Powell, 392 U.S., at 533, 88 S.Ct. 2145. After all, nothing in the Amendment's text or history exists to “confine” or guide our review. Id., at 534, 88 S.Ct. 2145. Unaided by those sources, we would be left “to write into the Constitution” our own “formulas,” many of which would likely prove unworkable in practice. Id., at 537, 88 S.Ct. 2145. Along the way, we would interfere with “essential considerations of federalism” that reserve to the States primary responsibility for drafting their own criminal laws. Id., at 535, 88 S.Ct. 2145.

. . . Martin exemplifies much of what can go wrong when courts try to resolve matters like those unmoored from any secure guidance in the Constitution.

Start with this problem. Under Martin, cities must allow public camping by those who are “involuntarily” homeless. 72 F.4th, at 877 (citing Martin, 920 F.3d, at 617, n. 8). But how are city officials and law enforcement officers to know what it means to be “involuntarily” homeless, or whether any particular person meets that standard? *2222 Posing the questions may be easy; answering them is not. Is it enough that a homeless person has turned down an offer of shelter? Or does it matter why? Cities routinely confront individuals who decline offers of shelter for any number of reasons, ranging from safety concerns to individual preferences. See Part I–A, supra. How are cities and their law enforcement officers on the ground to know which of these reasons are sufficiently weighty to qualify a person as “involuntarily” homeless?

If there are answers to those questions, they cannot be found in the Cruel and Unusual Punishments Clause. . . . To be sure, Martin attempted to head off these complexities through some back-of-the-envelope arithmetic. The Ninth Circuit said a city needs to consider individuals “involuntarily” homeless (and thus entitled to camp on public property) only when the overall homeless population exceeds the total number of “adequate” and “practically available” shelter beds. See 920 F.3d, at 617–618, and n. 8. But as sometimes happens with abstract rules created by those far from the front lines, that test has proven all but impossible to administer in practice.

. . . Consider an example. The city of Chico, California, thought it was complying with Martin when it constructed an outdoor shelter facility at its municipal airport to accommodate its homeless population. Warren v. Chico, 2021 WL 2894648, *3 (ED Cal., July 8, 2021). That shelter, we are told, included “protective fencing, large water totes, handwashing stations, portable toilets, [and] a large canopy for shade.” Brief for City of Chico as Amicus Curiae on Pet. for Cert. 16. Still, a district court enjoined the city from enforcing its public-camping ordinance. Why? Because, in that court's view, “appropriate” shelter requires “ ‘indoo[r],’ ” not outdoor, spaces. Warren, 2021 WL 2894648, *3 (quoting Martin, 920 F.3d, at 617). One federal court in Los Angeles ruled, during the COVID pandemic, that “adequate” shelter must also include nursing staff, testing for communicable diseases, and on-site security, among other things. See LA Alliance for Hum. Rights v. Los Angeles, 2020 WL 2512811, *4 (CD Cal., May 15, 2020). By imbuing the availability of shelter with constitutional significance in this way, many cities tell us, Martin and its progeny have “paralyzed” communities and prevented them from implementing even policies designed to help the homeless while remaining sensitive to the limits of their resources and the needs of other citizens. Cities Cert. Brief 4 (boldface and capitalization deleted).

There are more problems still. The Ninth Circuit held that “involuntarily” homeless individuals cannot be punished for camping with materials “necessary to protect themselves from the elements.” 72 F.4th, at 896. It suggested, too, that cities cannot proscribe “life-sustaining act[s]” that flow necessarily from homelessness. 72 F.4th, at 921 (joint statement of Silver and Gould, JJ., regarding denial of rehearing). But how far does that go? The plaintiffs before us suggest a blanket is all that is required in Grants Pass. Brief for Respondents 14. But might a colder climate trigger a right to permanent tent encampments and fires for warmth? Because the contours of this judicial right are so “uncertai[n],” cities across the West have been left to guess whether Martin forbids their officers from removing everything from tents to “portable heaters” on city sidewalks. Brief for City of Phoenix et al. on Pet. for Cert. 19, 29 (Phoenix Cert. Brief). There is uncertainty, as well, over whether Martin requires cities to tolerate other acts no less “attendant [to] survival” than sleeping, such as starting fires to cook food and “public urination [and] defecation.” Phoenix Cert. Brief 29–30; see also Mahoney v. Sacramento, 2020 WL 616302, *3 (ED Cal., Feb. 10, 2020) (indicating that “the [c]ity may not prosecute or otherwise penalize the [homeless] for eliminating in public if there is no alternative to doing so”). By extending Robinson beyond the narrow class of status crimes, the Ninth Circuit has created a right that has proven “impossible” for judges to delineate except “by fiat.” Powell, 392 U.S., at 534, 88 S.Ct. 2145. . . . 

III

Homelessness is complex. Its causes are many. So may be the public policy responses required to address it. At bottom, the question this case presents is whether the Eighth Amendment grants federal judges primary responsibility for assessing those causes and devising those responses. It does not. Almost 200 years ago, a visitor to this country remarked upon the “extreme skill with which the inhabitants of the United States succeed in proposing a common object to the exertions of a great many men, and in getting them voluntarily to pursue it.” 2 A. de Tocqueville, Democracy in America 129 (H. Reeve transl. 1961). If the multitude of amicus briefs before us proves one thing, it is that the American people are still at it. Through their voluntary associations and charities, their elected representatives and appointed officials, their police officers and mental health professionals, they display that same energy and skill today in their efforts to address the complexities of the homelessness challenge facing the most vulnerable among us.

Yes, people will disagree over which policy responses are best; they may experiment with one set of approaches only to find later another set works better; they may find certain responses more appropriate for some communities than others. But in our democracy, that is their right. Nor can a handful of federal judges begin to “match” the collective wisdom the American people possess in deciding “how best to handle” a pressing social question like homelessness. Robinson, 370 U.S., at 689, 82 S.Ct. 1417 (White, J., dissenting). The Constitution's Eighth Amendment serves many important functions, but it does not authorize federal judges to wrest those rights and responsibilities from the American people and in their place dictate this Nation's homelessness policy. The judgment below is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice THOMAS, concurring.

I join the Court's opinion in full because it correctly rejects the respondents’ claims under the Cruel and Unusual Punishments Clause. . . . I write separately to make two additional observations about the respondents’ claims.

First, the precedent that the respondents primarily rely upon, Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), was wrongly decided. In Robinson, the Court held that the Cruel and Unusual Punishments Clause prohibits the enforcement of laws criminalizing a person's status. Id., at 666, 82 S.Ct. 1417. That holding conflicts with the plain text and history of the Cruel and Unusual Punishments Clause. . . .

Second, the respondents have not established that their claims implicate the Cruel and Unusual Punishments Clause in the first place. The challenged ordinances are enforced through the imposition of civil fines and civil park exclusion orders, as well as through criminal trespass charges. But, “[a]t the time the Eighth Amendment was ratified, the word ‘punishment’ referred to the penalty imposed for the commission of a crime.” Helling v. McKinney, 509 U.S. 25, 38, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) (THOMAS, J., dissenting); see ante, at 2215 – 2216. The respondents have yet to explain how the civil fines and park exclusion orders constitute a “penalty imposed for the commission of a crime.” Helling, 509 U.S., at 38, 113 S.Ct. 2475.

Justice SOTOMAYOR, with whom Justice KAGAN and Justice JACKSON join, dissenting.

Sleep is a biological necessity, not a crime. For some people, sleeping outside is their only option. The City of Grants Pass jails and fines those people for sleeping anywhere in public at any time, including in their cars, if they use as little as a blanket to keep warm or a rolled-up shirt as a pillow. For people with no access to shelter, that punishes them for being homeless. That is unconscionable and unconstitutional. Punishing people for their status is “cruel and unusual” under the Eighth Amendment. See Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962).

Homelessness is a reality for too many Americans. On any given night, over half a million people across the country lack a fixed, regular, and adequate nighttime residence. Many do not have access to shelters and are left to sleep in cars, sidewalks, parks, and other public places. They experience homelessness due to complex and interconnected issues, including crippling debt and stagnant wages; domestic and sexual abuse; physical and psychiatric disabilities; and rising housing costs coupled with declining affordable housing options.

At the same time, States and cities face immense challenges in responding to homelessness. To address these challenges and provide for public health and safety, local governments need wide latitude, including to regulate when, where, and how homeless people sleep in public. The decision below did, in fact, leave cities free to punish “littering, public urination or defecation, obstruction of roadways, possession or distribution of illicit substances, harassment, or violence.” App. to Pet. for Cert. 200a. The only question for the Court today is whether the Constitution permits punishing homeless people with no access to shelter for sleeping in public with as little as a blanket to keep warm.

It is possible to acknowledge and balance the issues facing local governments, the humanity and dignity of homeless people, and our constitutional principles. Instead, the majority focuses almost exclusively on the needs of local governments and leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested. The Constitution provides a baseline of rights for all Americans rich and poor, housed and unhoused. This Court must safeguard those rights even when, and perhaps especially when, doing so is uncomfortable or unpopular. Otherwise, “the words of the Constitution become little more than good advice.” Trop v. Dulles, 356 U.S. 86, 104, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality opinion).

I

The causes, consequences, and experiences of homelessness are complex and *2229 interconnected. The majority paints a picture of “cities across the American West” in “crisis” that are using criminalization as a last resort. Ante, at 2207. That narrative then animates the majority's reasoning. This account, however, fails to engage seriously with the precipitating causes of homelessness, the damaging effects of criminalization, and the myriad legitimate reasons people may lack or decline shelter.

A

Over 600,000 people experience homelessness in America on any given night, meaning that they lack “a fixed, regular, and adequate nighttime residence.” Dept. of Housing and Urban Development, T. de Sousa et al., The 2023 Annual Homeless Assessment Report to Congress 4 (2023 AHAR). These people experience homelessness in different ways. Although 6 in 10 are able to secure shelter beds, the remaining 4 in 10 are unsheltered, sleeping “in places not meant for human habitation,” such as sidewalks, abandoned buildings, bus or train stations, camping grounds, and parked vehicles. See id., at 2. “Some sleep alone in public places, without any physical structures (like tents or shacks) or connection to services. Others stay in encampments, which generally refer to groups of people living semipermanently in tents or other temporary structures in a public space.” Brief for California as Amicus Curiae 6 (California Brief) (citation omitted). This is in part because there has been a national “shortage of 188,000 shelter beds for individual adults.” Brief for Service Providers as Amici Curiae 8 (Service Providers Brief).

People become homeless for many reasons, including some beyond their control. “[S]tagnant wages and the lack of affordable housing” can mean some people are one unexpected medical bill away from being unable to pay rent. Brief for Public Health Professionals and Organizations as Amici Curiae 3. Every “$100 increase in median rental price” is “associated with about a 9 percent increase in the estimated homelessness rate.” GAO, A. Cackley, Homelessness: Better HUD Oversight of Data Collection Could Improve Estimates of Homeless Populations 30 (GAO–20–433, 2020). Individuals with disabilities, immigrants, and veterans face policies that increase housing instability. See California Brief 7. Natural disasters also play a role, including in Oregon, where increasing numbers of people “have lost housing because of climate events such as extreme wildfires across the state, floods in the coastal areas, [and] heavy snowstorms.” 2023 AHAR 52. Further, “mental and physical health challenges,” and family and domestic “violence and abuse” can be precipitating causes of homelessness. California Brief 7.

People experiencing homelessness are young and old, live in families and as individuals, and belong to all races, cultures, and creeds. Given the complex web of causes, it is unsurprising that the burdens of homelessness fall disproportionately on the most vulnerable in our society. People already in precarious positions with mental and physical health, trauma, or abuse may have nowhere else to go if forced to leave their homes. Veterans, victims of domestic violence, teenagers, and people with disabilities are all at an increased risk of homelessness. For veterans, “those with a history of mental health conditions, including post-traumatic stress disorder (PTSD) ... are at greater risk of homelessness.” Brief for American Psychiatric Association et al. as Amici Curiae 6. For women, almost 60% of those experiencing homelessness report that fleeing domestic violence was the “immediate cause.” Brief for Advocates for Survivors of Gender-Based Violence as Amici Curiae 9. For young people, “family dysfunction and rejection, *2230 sexual abuse, juvenile legal system involvement, ‘aging out’ of the foster care system, and economic hardship” make them particularly vulnerable to homelessness. Brief for Juvenile Law Center et al. as Amici Curiae 2. For American Indians, “policies of removal and resettlement in tribal lands” have caused displacement, resulting in “a disproportionately high rate of housing insecurity and unsheltered homelessness.” Brief for StrongHearts Native Helpline et al. as Amici Curiae 10, 24. For people with disabilities, “[l]ess than 5% of housing in the United States is accessible for moderate mobility disabilities, and less than 1% is accessible for wheelchair use.” Brief for Disability Rights Education and Defense Fund et al. as Amici Curiae 2 (Disability Rights Brief).

B

States and cities responding to the homelessness crisis face the difficult task of addressing the underlying causes of homelessness while also providing for public health and safety. This includes, for example, dealing with the hazards posed by encampments, such as “a heightened risk of disease associated with living outside without bathrooms or wash basins,” “deadly fires” from efforts to “prepare food and create heat sources,” violent crime, and drug distribution and abuse. California Brief 12.

Local governments need flexibility in responding to homelessness with effective and thoughtful solutions. See infra, at 2237 – 2239. Almost all of these policy solutions are beyond the scope of this case. The only question here is whether the Constitution permits criminalizing sleeping outside when there is nowhere else to go. That question is increasingly relevant because many local governments have made criminalization a frontline response to homelessness. “[L]ocal measures to criminalize ‘acts of living’ ” by “prohibit[ing] sleeping, eating, sitting, or panhandling in public spaces” have recently proliferated. U. S. Interagency Council on Homelessness, Searching Out Solutions 1 (2012).

Criminalizing homelessness can cause a destabilizing cascade of harm. “Rather than helping people to regain housing, obtain employment, or access needed treatment and services, criminalization creates a costly revolving door that circulates individuals experiencing homelessness from the street to the criminal justice system and back.” Id., at 6. When a homeless person is arrested or separated from their property, for example, “items frequently destroyed include personal documents needed for accessing jobs, housing, and services such as IDs, driver's licenses, financial documents, birth certificates, and benefits cards; items required for work such as clothing and uniforms, bicycles, tools, and computers; and irreplaceable mementos.” Brief for 57 Social Scientists as Amici Curiae 17–18 (Social Scientists Brief). Consider Erin Spencer, a disabled Marine Corps veteran who stores items he uses to make a living, such as tools and bike parts, in a cart. He was arrested repeatedly for illegal lodging. Each time, his cart and belongings were gone once he returned to the sidewalk. “[T]he massive number of times the City or State has taken all I possess leaves me in a vacuous déjà vu.” Brief for National Coalition for Homeless Veterans et al. as Amici Curiae 28.

Incarceration and warrants from unpaid fines can also result in the loss of employment, benefits, and housing options. See Social Scientists Brief 13, 17 (incarceration and warrants can lead to “termination of federal health benefits such as Social Security, Medicare, or Medicaid,” the “loss of a shelter bed,” or disqualification from “public housing and Section 8 vouchers”). Finally, *2231 criminalization can lead homeless people to “avoid calling the police in the face of abuse or theft for fear of eviction from public space.” Id., at 27. Consider the tragic story of a homeless woman “who was raped almost immediately following a police move-along order that pushed her into an unfamiliar area in the dead of night.” Id., at 26. She described her hesitation in calling for help: “What's the point? If I called them, they would have made all of us move [again].” Ibid.

For people with nowhere else to go, fines and jail time do not deter behavior, reduce homelessness, or increase public safety. In one study, 91% of homeless people who were surveyed “reported remaining outdoors, most often just moving two to three blocks away” when they received a move-along order. Id., at 23. Police officers in these cities recognize as much: “ ‘Look we're not really solving anybody's problem. This is a big game of whack-a-mole.’ ” Id., at 24. Consider Jerry Lee, a Grants Pass resident who sleeps in a van. Over the course of three days, he was woken up and cited six times for “camping in the city limits” just because he was sleeping in the van. App. 99 (capitalization omitted). Lee left the van each time only to return later to sleep. Police reports eventually noted that he “continues to disregard the city ordinance and returns to the van to sleep as soon as police leave the area. Dayshift needs to check on the van this morning and ... follow up for tow.” Ibid. (same).

Shelter beds that are available in theory may be practically unavailable because of “restrictions based on gender, age, income, sexuality, religious practice, curfews that conflict with employment obligations, and time limits on stays.” Social Scientists Brief 22. Studies have shown, however, that the “vast majority of those who are unsheltered would move inside if safe and affordable options were available.” Service Providers Brief 8 (collecting studies). Consider CarrieLynn Hill. She cannot stay at Gospel Rescue Mission, the only entity in Grants Pass offering temporary beds, because “she would have to check her nebulizer in as medical equipment and, though she must use it at least once every four hours, would not be able to use it in her room.” Disability Rights Brief 18. Similarly, Debra Blake's “disabilities prevent her from working, which means she cannot comply with the Gospel Rescue Mission's requirement that its residents work 40-hour work weeks.” Ibid.

Before I move on, consider one last example of a Nashville man who experienced homelessness for nearly 20 years. When an outreach worker tried to help him secure housing, the worker had difficulty finding him for his appointments because he was frequently arrested for being homeless. He was arrested 198 times and had over 250 charged citations, all for petty offenses. The outreach worker made him a t-shirt that read “Please do not arrest me, my outreach worker is working on my housing.” Service Providers Brief 16. Once the worker was able to secure him stable housing, he “had no further encounters with the police, no citations, and no arrests.” Ibid.

These and countless other stories reflect the reality of criminalizing sleeping outside when people have no other choice.

II

Grants Pass, a city of 38,000 people in southern Oregon, adopted three ordinances (Ordinances) that effectively make it unlawful to sleep anywhere in public, including in your car, at any time, with as little as a blanket or a rolled-up shirt as a pillow. . . .

Respondents here, two longtime residents of Grants Pass who are homeless and sleep in their cars, sued on behalf of themselves and all other involuntarily homeless people in the City, seeking to enjoin enforcement of the Ordinances. The District Court eventually certified a class and granted summary judgment to respondents. “As was the case in Martin, Grants Pass has far more homeless people than ‘practically available’ shelter beds.” App. to Pet. for Cert. 179a. The City had “zero emergency shelter beds,” and even counting the beds at the Gospel Rescue Mission (GRM), which is “the only entity in Grants Pass that offers any sort of temporary program for some class members,” “GRM's 138 beds would not be nearly enough to accommodate the at least 602 homeless individuals in Grants Pass.” Id., at 179a–180a. Thus, “the only way for homeless people to legally sleep on public property within the City is if they lay on the ground with only the clothing on their backs and without their items near them.” Id., at 178a.

The District Court entered a narrow injunction. It concluded that Grants Pass could “implement time and place restrictions for when homeless individuals may use their belongings to keep warm and dry and when they must have their belonging[s] packed up.” Id., at 199a. The City could also “ban the use of tents in public parks,” as long as it did not “ban people from using any bedding type materials to keep warm and dry while they sleep.” Id., *2233 at 199a–200a. Further, Grants Pass could continue to “enforce laws that actually further public health and safety, such as laws restricting littering, public urination or defecation, obstruction of roadways, possession or distribution of illicit substances, harassment, or violence.” Id., at 200a. . . .

III

The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” Amdt. 8 (Punishments Clause). . . .

In Robinson v. California, this Court detailed one substantive limitation on criminal punishment. Lawrence Robinson was convicted under a California statute for “ ‘be[ing] addicted to the use of narcotics’ ” and faced a mandatory 90-day jail sentence. 370 U.S., at 660, 82 S.Ct. 1417. The California statute did not “punis[h] a person for the use of narcotics, for their purchase, sale or possession, or for antisocial or disorderly behavior resulting from their administration.” Id., at 666, 82 S.Ct. 1417. Instead, it made “the ‘status’ of narcotic addiction a criminal offense, for which the offender may be prosecuted ‘at any time before he reforms.’ ” Ibid.

The Court held that, because it criminalized the “ ‘status’ of narcotic addiction,” ibid., the California law “inflict[ed] a cruel and unusual punishment in violation” of the Punishments Clause, id., at 667, 82 S.Ct. 1417. Importantly, the Court did not limit that holding to the status of narcotic addiction alone. It began by reasoning that the criminalization of the “mentally ill, or a leper, or [those] afflicted with a venereal disease” “would doubtless be universally thought to be an infliction of cruel and unusual punishment.” Id., at 666, 82 S.Ct. 1417. It extended that same reasoning to the status of being an addict, because “narcotic addiction is an illness” “which may be contracted innocently or involuntarily.” Id., at 667, 82 S.Ct. 1417.

Unlike the majority, see ante, at 2215 – 2217, the Robinson Court did not rely on the harshness of the criminal penalty itself. It understood that “imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual.” 370 U.S., at 667, 82 S.Ct. 1417. Instead, it reasoned that, when imposed because of a *2234 person's status, “[e]ven one day in prison would be a cruel and unusual punishment.” Ibid.

. . .

IV

Grants Pass's Ordinances criminalize being homeless. The status of being homeless (lacking available shelter) is defined by the very behavior singled out for punishment (sleeping outside). The majority protests that the Ordinances “do not criminalize mere status.” Ante, at 2218. Saying so does not make it so. Every shred of evidence points the other way. The Ordinances’ purpose, text, and enforcement confirm that they target status, not conduct. For someone with no available shelter, the only way to comply with the Ordinances is to leave Grants Pass altogether.

A

Start with their purpose. The Ordinances, as enforced, are intended to criminalize being homeless. The Grants Pass City Council held a public meeting in 2013 to “ ‘identify solutions to current vagrancy problems.’ ” App. to Pet. for Cert. 168a. The council discussed the City's previous efforts to banish homeless people by “buying the person a bus ticket to a specific destination,” or transporting them to a different jurisdiction and “leaving them there.” App. 113–114. That was unsuccessful, so the council discussed other ideas, *2235 including a “ ‘do not serve’ ” list or “a ‘most unwanted list’ made by taking pictures of the offenders ... and then disseminating it to all the service agencies.” Id., at 121. The council even contemplated denying basic services such as “food, clothing, bedding, hygiene, and those types of things.” Ibid.

The idea was deterrence, not altruism. “[U]ntil the pain of staying the same outweighs the pain of changing, people will not change; and some people need an external source to motivate that needed change.” Id., at 119. One councilmember opined that “[m]aybe they aren't hungry enough or cold enough ... to make a change in their behavior.” Id., at 122. The council president summed up the goal succinctly: “ ‘[T]he point is to make it uncomfortable enough for [homeless people] in our city so they will want to move on down the road.’ ” Id., at 114. . . .

B

Next consider the text. The Ordinances by their terms single out homeless people. They define “campsite” as “any place where bedding, sleeping bag, or other material used for bedding purposes” is placed “for the purpose of maintaining a temporary place to live.” § 5.61.010. The majority claims that it “makes no difference whether the charged defendant is homeless.” Ante, at 2218. Yet the Ordinances do not apply unless bedding is placed to maintain a temporary place to live. Thus, “what separates prohibited conduct from permissible conduct is a person's intent to ‘live’ in public spaces. Infants napping in strollers, Sunday afternoon picnickers, and nighttime stargazers may all engage in the same conduct of bringing blankets to public spaces [and sleeping], but they are exempt from punishment because they have a separate ‘place to live’ to which they presumably intend to return.” Brief for Criminal Law and Punishment Scholars as Amici Curiae 12.

Put another way, the Ordinances single out for punishment the activities that define the status of being homeless. By most definitions, homeless individuals are those that lack “a fixed, regular, and adequate nighttime residence.” 42 U.S.C. § 11434a(2)(A); 24 C.F.R. §§ 582.5, 578.3 (2023). Permitting Grants Pass to criminalize sleeping outside with as little as a blanket permits Grants Pass to criminalize homelessness. . . . 

Take the respondents here, two longtime homeless residents of Grants Pass who sleep in their cars. The Ordinances define “campsite” to include “any vehicle.” § 5.61.010(B). For respondents, the Ordinances as applied do not criminalize any behavior or conduct related to encampments (such as fires or tents). Instead, the Ordinances target respondents’ status as people without any other form of shelter. Under the majority's logic, cities cannot criminalize the status of being homeless, but they can criminalize the conduct that defines that status. The Constitution cannot be evaded by such formalistic distinctions.

The Ordinances’ definition of “campsite” creates a situation where homeless people necessarily break the law just by existing.  . . .  Every human needs to sleep at some point. Even if homeless people with no available shelter options can exist for a few days in Grants Pass without sleeping, they eventually must leave or be criminally punished.

The majority resists this understanding, arguing that the Ordinances criminalize the conduct of being homeless in Grants Pass while sleeping with as little as a blanket. Therefore, the argument goes, “[r]ather than criminalize mere status, Grants Pass forbids actions.” . . . The best the majority can muster is the following tautology: The Ordinances criminalize conduct, not pure status, because they apply to conduct, not status.

The flaw in this conclusion is evident. The majority countenances the criminalization of status as long as the City tacks on an essential bodily function—blinking, sleeping, eating, or breathing. That is just another way to ban the person. By this logic, the majority would conclude that the ordinance deemed unconstitutional in Robinson criminalizing “being an addict” would be constitutional if it criminalized “being an addict and breathing.”  . . . 

The Ordinances are enforced exactly as intended: to criminalize the status of being *2237 homeless. City officials sought to use the Ordinances to drive homeless people out of town. See supra, at 2234 – 2235. The message to homeless residents is clear. As Debra Blake, a named plaintiff who passed away while this case was pending, see n. 1, supra, shared:

“I have been repeatedly told by Grants Pass police that I must ‘move along’ and that there is nowhere in Grants Pass that I can legally sit or rest. I have been repeatedly awakened by Grants Pass police while sleeping and told that I need to get up and move. I have been told by Grants Pass police that I should leave town.

Because I have no choice but to live outside and have no place else to go, I have gotten tickets, fines and have been criminally prosecuted for being homeless.” App. 180–181.

Debra Blake's heartbreaking message captures the cruelty of criminalizing someone for their status: “I am afraid at all times in Grants Pass that I could be arrested, ticketed and prosecuted for sleeping outside or for covering myself with a blanket to stay warm.” Id., at 182. So, at times, when she could, Blake “slept outside of the city.” Ibid. Blake, who was disabled, unemployed, and elderly, “owe[d] the City of Grants Pass more than $5000 in fines for crimes and violations related directly to [her] involuntary homelessness and the fact that there is no affordable housing or emergency shelters in Grants Pass where [she could] stay.” Ibid.

. . . 

The majority proclaims, with no citation, that “it makes no difference whether the charged defendant is homeless, a backpacker on vacation passing through town, or a student who abandons his dorm room to camp out in protest.” Ante, at 2218. That describes a fantasy. In reality, the deputy chief of police operations acknowledged that he was not aware of “any non-homeless person ever getting a ticket for illegal camping in Grants Pass.”  . . .

…(C)

The majority . . . spars with a strawman in its discussion of Powell v. Texas. The Court in Powell considered the distinction between status and conduct but *2240 could not agree on a controlling rationale. Four Justices concluded that Robinson covered any “condition [the defendant] is powerless to change,” 392 U.S., at 567, 88 S.Ct. 2145 (Fortas, J., dissenting), and four Justices rejected that view. Justice White, casting the decisive fifth vote, left the question open because the defendant had “made no showing that he was unable to stay off the streets on the night in question.” Id., at 554, 88 S.Ct. 2145 (opinion concurring in judgment). So, in his view, it was “unnecessary to pursue at this point the further definition of the circumstances or the state of intoxication which might bar conviction of a chronic alcoholic for being drunk in a public place.” Id., at 553, 88 S.Ct. 2145.

This case similarly called for a straightforward application of Robinson. . . .  The Powell Court considered a statute that criminalized voluntary conduct (getting drunk) that could be rendered involuntary by a status (alcoholism); here, the Ordinances criminalize conduct (sleeping outside) that defines a particular status (homelessness). So unlike the debate in Powell, this case does not turn on whether the criminalized actions are “ ‘involuntary’ or ‘occasioned by’ ” a particular status. Id., at 533, 88 S.Ct. 2145 (Marshall, J., dissenting). For all the reasons discussed above, see supra, at 2234 – 2238, these Ordinances criminalize status and are thus unconstitutional under any of the opinions in Powell.

D

. . . The majority cites various amicus briefs to amplify Grants Pass's belief that its homelessness crisis is intractable absent the ability to criminalize homelessness. In so doing, the majority chooses to see only *2241 what it wants. Many of those stakeholders support the narrow rule in Martin. See, e.g., Brief for City and County of San Francisco et al. as Amici Curiae 4 (“[U]nder the Eighth Amendment ... a local municipality may not prohibit sleeping—a biological necessity—in all public spaces at all times and under all conditions, if there is no alternative space available in the jurisdiction for unhoused people to sleep”); Brief for City of Los Angeles as Amicus Curiae 1 (“The City agrees with the broad premise underlying the Martin and Johnson decisions: when a person has no other place to sleep, sleeping at night in a public space should not be a crime leading to an arrest, criminal conviction, or jail”); California Brief 2–3 (“[T]he Constitution does not allow the government to punish people for the status of being homeless. Nor should it allow the government to effectively punish the status of being homeless by making it a crime in all events for someone with no other options to sleep outside on public property at night”).

Even the Federal Government, which restricts some sleeping activities on park lands, see ante, at 2210 – 2211, has for nearly three decades “taken the position that laws prohibiting sleeping in public at all times and in all places violate the Robinson principle as applied to individuals who have no access to shelter.” Brief for United States as Amicus Curiae 14. The same is true of States across the Nation. See Brief for Maryland et al. as Amici Curiae 3–4 (“Taking these policies [criminalizing homelessness] off the table does not interfere with our ability to address homelessness (including the effects of homelessness on surrounding communities) using other policy tools, nor does it amount to an undue intrusion on state sovereignty”).

Nothing in today's decision prevents these States, cities, and counties from declining to criminalize people for sleeping in public when they have no available shelter. Indeed, although the majority describes Martin as adopting an unworkable rule, the elected representatives in Oregon codified that very rule. See infra, at 2241 – 2242. The majority does these localities a disservice by ascribing to them a demand for unfettered freedom to punish that many do not seek.

VI

The Court wrongly concludes that the Eighth Amendment permits Ordinances that effectively criminalize being homeless. Grants Pass's Ordinances may still raise a host of other legal issues. Perhaps recognizing the untenable position it adopts, the majority stresses that “many substantive legal protections and provisions of the Constitution may have important roles to play when States and cities seek to enforce their laws against the homeless.” Ante, at 2224. That is true. Although I do not prejudge the merits of these other issues, I detail some here so that people experiencing homelessness and their advocates do not take the Court's decision today as closing the door on such claims.

* * * . . 

I remain hopeful that our society will come together “to address the complexities of the homelessness challenge facing the most vulnerable among us.” Ante, at 2226. That responsibility is shared by those vulnerable populations, the States and cities in which they reside, and each and every one of us. “It is only after we begin to see a street as our street, a public park as our park, a school as our school, that we can become engaged citizens, dedicating our time and resources for worthwhile causes.” M. Desmond, Evicted: Property and Profit in the American City 294 (2016).

This Court, too, has a role to play in faithfully enforcing the Constitution to prohibit punishing the very existence of those without shelter. I remain hopeful that someday in the near future, this Court will play its role in safeguarding constitutional liberties for the most vulnerable among us. Because the Court today abdicates that role, I respectfully dissent.

This is one in a series of episodes by reporters at the Albany Democrat-Herald asking people what it's like to sleep in public spaces. This episode focuses on people living in Grants Pass in 2023.

Here is the official link for episode 7 this podcast, but it may require a login: https://democratherald.com/news/local/government-politics/homeless-podcast-travels-to-grants-pass/article_3c8edc5e-85b6-11ee-8710-dfe57a2320f3.html

Here is the Apple podcasts link to the episode: https://podcasts.apple.com/us/podcast/grants-pass/id1707184185?i=1000635542320

You can find it by searching on any podcast search for "A Place to Sleep Grant's Pass."

Supreme Court of the United States

John Geddes LAWRENCE and Tyron Garner, Petitioners,

v.

TEXAS.

Decided June 26, 2003.

KENNEDY, J., delivered the opinion of the Court, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined. O’CONNOR, J., filed an opinion concurring in the judgment, post, p. 2484. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C.J., and THOMAS, J., joined, post, p. 2488. THOMAS, J., filed a dissenting opinion, post, p. 2498.

Opinion

Justice KENNEDY delivered the opinion of the Court.

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and in its more transcendent dimensions.

I

The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct.

In Houston, Texas, officers of the Harris County Police Department were dispatched to a private residence in response to a reported weapons disturbance. They entered an apartment where one of the petitioners, John Geddes Lawrence, resided. The right of the police to enter does not seem to have been questioned. The officers observed Lawrence and another man, Tyron Garner, engaging in a sexual act. The two petitioners were arrested, held in custody overnight, and charged and convicted before a Justice of the Peace.

The complaints described their crime as “deviate sexual intercourse, namely anal sex, with a member of the same sex (man).” App. to Pet. for Cert. 127a, 139a. The applicable state law is Tex. Penal Code Ann. § 21.06(a) (2003). It provides: “A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.” The statute defines “[d]eviate sexual intercourse” as follows:

“(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or

“(B) the penetration of the genitals or the anus of another person with an object.” § 21.01(1).

The petitioners exercised their right to a trial de novo in Harris County Criminal Court. They challenged the statute as a violation of the Equal Protection Clause of the Fourteenth Amendment and of a like provision of the Texas Constitution. Tex. Const., Art. 1, § 3a. Those contentions were rejected. The petitioners, having entered a plea of nolo contendere, were each fined $200 and assessed court costs of $141.25. App. to Pet. for Cert. 107a–110a.

The Court of Appeals for the Texas Fourteenth District considered the petitioners’ federal constitutional arguments under both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. After hearing the case en banc the court, in a divided opinion, rejected the constitutional arguments and affirmed the convictions. 41 S.W.3d 349 (2001). The majority opinion indicates that the Court of Appeals considered our decision in Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), to be controlling on the federal due process aspect of the case. Bowers then being authoritative, this was proper.

We granted certiorari, 537 U.S. 1044, 123 S.Ct. 661, 154 L.Ed.2d 514 (2002), to consider three questions:

1. Whether petitioners’ criminal convictions under the Texas ‘Homosexual Conduct’ law—which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples—violate the Fourteenth Amendment guarantee of equal protection of the laws.
2. Whether petitioners’ criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment.
3. Whether Bowers v. Hardwick, supra, should be overruled. See Pet. for Cert. i.

The petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual.

II

We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. For this inquiry we deem it necessary to reconsider the Court’s holding in Bowers.

[The Court then described a series of cases that lead up to Bowers.] In Griswold [in 1965] the Court invalidated a state law prohibiting the use of drugs or devices of contraception and counseling or aiding and abetting the use of contraceptives. The Court described the protected interest as a right to privacy and placed emphasis on the marriage relation and the protected space of the marital bedroom. Id., at 485, 85 S.Ct. 1678.

[Another relevant precedent is] Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). As is well known, the case involved a challenge to the Texas law prohibiting abortions, but the laws of other States were affected as well. Although the Court held the woman’s rights were not absolute, her right to elect an abortion did have real and substantial protection as an exercise of her liberty under the Due Process Clause. The Court cited cases that protect spatial freedom and cases that go well beyond it. Roe recognized the right of a woman to make certain fundamental decisions affecting her destiny and confirmed once more that the protection of liberty under the Due Process Clause has a substantive dimension of fundamental significance in defining the rights of the person.

In Carey v. Population Services Int’l, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977), the Court confronted a New York law forbidding sale or distribution of contraceptive devices to persons under 16 years of age. . . . This was the state of the law with respect to some of the most relevant cases when the Court considered Bowers v. Hardwick.

The facts in Bowers had some similarities to the instant case. A police officer, whose right to enter seems not to have been in question, observed Hardwick, in his own bedroom, engaging in intimate sexual conduct with another adult male. The conduct was in violation of a Georgia statute making it a criminal offense to engage in sodomy. One difference between the two cases is that the Georgia statute prohibited the conduct whether or not the participants were of the same sex, while the Texas statute, as we have seen, applies only to participants of the same sex. Hardwick was not prosecuted, but he brought an action in federal court to declare the state statute invalid. He alleged he was a practicing homosexual and that the criminal prohibition violated rights guaranteed to him by the Constitution. The Court, in an opinion by Justice White, sustained the Georgia law. . . . Four Justices dissented. . . .

The Court began its substantive discussion in Bowers as follows: “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.” Id., at 190, 106 S.Ct. 2841. That statement, we now conclude, discloses the Court’s own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.

Having misapprehended the claim of liberty there presented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: “Proscriptions against that conduct have ancient roots.” Id., at 192, 106 S.Ct. 2841. In academic writings, and in many of the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opinions in Bowers. . . .  We need not enter this debate in the attempt to reach a definitive historical judgment . . . [the Court then discussed the history of the criminalization of sex and sodomy].

. . . . It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. “Our obligation is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992).

. . . In all events we think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. . . .

This emerging recognition should have been apparent when Bowers was decided. In 1955 the American Law Institute promulgated the Model Penal Code and made clear that it did not recommend or provide for “criminal penalties for consensual sexual relations conducted in private.” ALI, Model Penal Code § 213.2, Comment 2, p. 372 (1980). It justified its decision on three grounds: (1) The prohibitions undermined respect for the law by penalizing conduct many people engaged in; (2) the statutes regulated private conduct not harmful to others; and (3) the laws were arbitrarily enforced and thus invited the danger of blackmail. ALI, Model Penal Code, Commentary 277–280 (Tent. Draft No. 4, 1955). In 1961 Illinois changed its laws to conform to the Model Penal Code. Other States soon followed. Brief for Cato Institute as Amicus Curiae 15–16.

In Bowers the Court referred to the fact that before 1961 all 50 States had outlawed sodomy, and that at the time of the Court’s decision 24 States and the District of Columbia had sodomy laws. 478 U.S., at 192–193, 106 S.Ct. 2841. Justice Powell pointed out that these prohibitions often were being ignored, however. Georgia, for instance, had not sought to enforce its law for decades. . . .

In our own constitutional system the deficiencies in Bowers became even more apparent in the years following its announcement. The 25 States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States where sodomy is still proscribed, whether for same-sex or heterosexual conduct, there is a pattern of nonenforcement with respect to consenting adults acting in private. The State of Texas admitted in 1994 that as of that date it had not prosecuted anyone under those circumstances. State v. Morales, 869 S.W.2d 941, 943.

. . . Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.

The stigma this criminal statute imposes, moreover, is not trivial. The offense, to be sure, is but a class C misdemeanor, a minor offense in the Texas legal system. Still, it remains a criminal offense with all that imports for the dignity of the persons charged. The petitioners will bear on their record the history of their criminal convictions. Just this Term we rejected various challenges to state laws requiring the registration of sex offenders.  . . .We are advised that if Texas convicted an adult for private, consensual homosexual conduct under the statute here in question the convicted person would come within the registration laws of at least four States were he or she to be subject to their jurisdiction. This underscores the consequential nature of the punishment and the state-sponsored condemnation attendant to the criminal prohibition. Furthermore, the Texas criminal conviction carries with it the other collateral consequences always following a conviction, such as notations on job application forms, to mention but one example.

The foundations of Bowers have sustained serious erosion from our recent decisions in Casey and Romer. . . . To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. . . .Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. . . . The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.

The doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command. . . .

 The rationale of Bowers does not withstand careful analysis. . . .  As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

The judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

Justice SCALIA, with whom THE CHIEF JUSTICE and Justice THOMAS join, dissenting.

“Liberty finds no refuge in a jurisprudence of doubt.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 844, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). That was the Court’s sententious response, barely more than a decade ago, to those seeking to overrule Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). The Court’s response today, to those who have engaged in a 17–year crusade to overrule Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), is very different. The need for stability and certainty presents no barrier.

. . . I begin with the Court’s surprising readiness to reconsider a decision rendered a mere 17 years ago in Bowers v. Hardwick. I do not myself believe in rigid adherence to stare decisis in constitutional cases; but I do believe that we should be consistent rather than manipulative in invoking the doctrine. Today’s opinions in support of reversal do not bother to distinguish—or indeed, even bother to mention—the paean to stare decisis coauthored by three Members of today’s majority in Planned Parenthood v. Casey. There, when stare decisis meant preservation of judicially invented abortion rights, the widespread criticism of Roe was strong reason to reaffirm it:

“Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe [,] ... its decision has a dimension that the resolution of the normal case does not carry.... [T]o overrule under fire in the absence of the most compelling reason ... would subvert the Court’s legitimacy beyond any serious question.” 505 U.S., at 866–867, 112 S.Ct. 2791.

Today, however, the widespread opposition to Bowers, a decision resolving an issue as “intensely divisive” as the issue in Roe, is offered as a reason in favor of overruling it. . . .

. . . Having decided that it need not adhere to stare decisis, the Court still must establish that Bowers was wrongly decided and that the Texas statute, as applied to petitioners, is unconstitutional.

Texas Penal Code Ann. § 21.06(a) (2003) undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to “liberty” under the Due Process Clause, though today’s opinion repeatedly makes that claim. . . . The Fourteenth Amendment expressly allows States to deprive their citizens of “liberty,” so long as “due process of law” is provided. . . .

. . . I turn now to the ground on which the Court squarely rests its holding: the contention that there is no rational basis for the law here under attack. This proposition is so out of accord with our jurisprudence—indeed, with the jurisprudence of any society we know—that it requires little discussion.

The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable,” Bowers, supra, at 196, 106 S.Ct. 2841—the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual,” ante, at 2484 (emphasis added). The Court embraces instead Justice STEVENS’ declaration in his Bowers dissent, that “ ‘the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,’ ” ante, at 2483. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.

* * *

Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer, supra, at 653, 116 S.Ct. 1620.

One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” Ante, at 2482. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as “discrimination” which it is the function of our judgments to deter. So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously “mainstream”; that in most States what the Court calls “discrimination” against those who engage in homosexual acts is perfectly legal; that proposals to ban such “discrimination” under Title VII have repeatedly been rejected by Congress, see Employment Non–Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H.R. 5452, 94th Cong., 1st Sess. (1975); that in some cases such “discrimination” is mandated by federal statute, see 10 U.S.C. § 654(b)(1) (mandating discharge from the Armed Forces of any service member who engages in or intends to engage in homosexual acts); and that in some cases such “discrimination” is a constitutional right, see Boy Scouts of America v. Dale, 530 U.S. 640, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000).

Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts—or, for that matter, display any moral disapprobation of them—than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change. It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress,” ante, at 2484; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.

One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts—and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). . . . . Do not believe it. . . . Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. . . This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.

The matters appropriate for this Court’s resolution are only three: Texas’s prohibition of sodomy neither infringes a “fundamental right” (which the Court does not dispute), nor is unsupported by a rational relation to what the Constitution considers a legitimate state interest, nor denies the equal protection of the laws. I dissent.

Justice THOMAS, dissenting.

I join Justice SCALIA’s dissenting opinion. I write separately to note that the law before the Court today “is ... uncommonly silly.” Griswold v. Connecticut, 381 U.S. 479, 527, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

Notwithstanding this, I recognize that as a Member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to “decide cases ‘agreeably to the Constitution and laws of the United States.’ ” Id., at 530, 85 S.Ct. 1678. And, just like Justice Stewart, I “can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy,” ibid., or as the Court terms it today, the “liberty of the person both in its spatial and more transcendent dimensions,” ante, at 2475.

Extreme Makeover

By Dahlia Lithwick

March 4, 2012

from the New Yorker, March 12, 2012

Tyron Garner and John Lawrence had a secret to keep: they weren’t guilty as charged.

In 2003, the United States Supreme Court decided the case of Lawrence v. Texas, ruling, by a six-to-three margin, that anti-sodomy laws were unconstitutional. Even those of us who followed the case had a rather gauzy notion of what had triggered the litigation. On the night of September 17, 1998, someone made a phone call to the police, warning that a black man was “going crazy with a gun” in an apartment just outside Houston. A clutch of sheriff’s deputies stormed the apartment, and found no gun, but they arrested John Geddes Lawrence and Tyron Garner for having sex in Lawrence’s bedroom. And, in an unlikely series of legal twists, the arrests of Lawrence and Garner became a vehicle for challenging old anti-sodomy laws that were used solely to shame and stigmatize gay couples. Lawrence and Garner were arrested for simply doing what loving couples do.

The story told in Lawrence v. Texas was a story of sexual privacy, personal dignity, intimate relationships, and shifting notions of family in America. By the time the tale poured from Justice Anthony Kennedy’s pen, in his decisive majority opinion, it was even about the physical dimension of love: “When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.” The opinion used the word “relationship” eleven times.

That is the story that Dale Carpenter, a professor at the University of Minnesota Law School, seeks to untell in his important new book, “Flagrant Conduct” (Norton), a chronicle that peels the Lawrence case back through layers of carefully choreographed litigation and tactical appeals, back to the human protagonists we never really got to know, and back again through centuries of laws criminalizing “unnatural” sexual activity. What if, Carpenter asks, this weren’t a story about love, or even sex? What if, in the end, Lawrence v. Texas was less a whodunnit than a who didn’t? And, if there was no sex, let alone an intimate relationship, in John Lawrence’s apartment that night, how did the case come to be about both?

Start with the two men charged with sodomy. When Lawrence, who was born in 1943 to devout white Southern Baptists, was enlisting in the Navy, he quizzed a buddy about the forms he was filling out. “What’s a homosexual?” he wondered. Neither knew the word. Both were gay. After leaving the Navy, Lawrence moved to Houston, worked as a medical technician, and totted up a slew of drunk-driving violations, including a conviction for murder by automobile, in 1967. In the late seventies, he moved into a run-down complex in East Houston populated by underemployed youngsters and strippers who liked to party. Lawrence largely kept his sexual orientation a secret at work, and was anything but a gay-rights activist. Right to the end of the litigation bearing his name, Lawrence’s principal beef was that overzealous policemen had invaded his home without a warrant.

Tyron Garner, the tenth child of black Baptist parents, was twenty-four years younger than Lawrence. He had no car and no fixed address, and supported himself by washing dishes and cleaning houses when he could. Described as “sweet” (despite three previous assault charges) and effeminate, Garner was involved in a stormy relationship with another white man from Houston, Robert Eubanks. And Eubanks, by all accounts, was a mess. Homeless and a heavy drinker, he was the person who called the police on September 17, 1998. Garner and Eubanks lived together wherever they could find an apartment, fighting viciously along the way. Garner and Lawrence, according to Carpenter’s research, were never much more than acquaintances. They weren’t lovers before the case or after.

That night in 1998, Lawrence, Garner, Eubanks, and probably a fourth man were all in Lawrence’s apartment. Lawrence and Eubanks were very drunk. Eubanks seems to have thought that Garner was being flirtatious with Lawrence, and fell into a jealous rage. He left the apartment, supposedly to get some soda, and called the police with a false story about his lover, Garner, brandishing a gun. There was never any dispute that the four policemen who responded to that call were entitled to enter the apartment to investigate, or that Lawrence began screaming furiously at the intruding officers, demanding to see a warrant and threatening to call his lawyer. There was sexually explicit art on the walls, notably a pencil drawing of a naked James Dean with oversized genitals. Eventually, Lawrence and Garner were charged with the crime of “deviate sexual intercourse, namely anal sex, with a member of the same sex (man).”

Some gay-rights attorneys, having been burned a dozen years earlier when, in Bowers v. Hardwick, the Supreme Court upheld Georgia’s homosexual-sodomy law, wanted nothing to do with Lawrence or Garner or the prospect of another legal challenge. Since the days of Brown v. Board of Education, and right up to District of Columbia v. Heller, the 2008 handgun-ban case, major test cases, they knew, have turned as much on selecting the perfect plaintiffs as on the law being challenged. An interracial, lower-middle-to-lower-class pair hooking up in a seedy apartment in a marginal neighborhood: Lawrence and Garner were hardly a civil-rights litigator’s dream plaintiffs. They were not the type to tug at judicial heartstrings.

But advocates for gay rights couldn’t afford to shop around for a perfect plaintiff. They knew how hard it would be to find a case to challenge the Texas sodomy statute. Since Bowers, no other test case had emerged in which someone was actually arrested for violating a state sodomy law. National gay-rights groups had been challenging state sodomy laws based on supposed harms to gay citizens, who were, litigators claimed, made to look like presumptive criminals. That strategy wasn’t working. After the Supreme Court, in Romer v. Evans (1996), struck down a Colorado initiative excluding gays from anti-discrimination protection, the time felt ripe for another challenge to sodomy statutes. But the gay-civil-rights groups needed to find plaintiffs who would not suffer custody losses or other collateral harms from admitting that they had violated criminal sodomy laws, which tended to rule out gay couples in a committed family relationship. As Carpenter puts it, civil-rights attorneys knew that they needed plaintiffs “with little to lose.” Garner and Lawrence fit that bill.

The two were accidental plaintiffs in more ways than one. Instructively, it was mere happenstance that their arrest even came to the attention of civil-rights advocates in the first place. A closeted gay file clerk saw the arrest report (the charge of sodomy was so rare that it didn’t even have an assigned code) and, gossiping at a local gay watering hole, told the bartender, a man named Lane Lewis. Since Lewis happened to be a gay activist, he recognized the potential importance of the case. It was Lewis who called Lawrence and persuaded him to speak to a gay-civil-rights veteran he had alerted. Each of the legal experts who were subsequently brought into the case knew instantly that it could end up at the high court. The challenge would be in finding a story about love and personal dignity to tell about Lawrence and Garner.

The cultural trends, the legal strategists knew, were in their favor, as they continue to be. Two decades ago, a majority of Americans thought that gay sex should be illegal, and that gays should be barred from serving openly in the military. Today, popular sentiment has switched sides. The restriction on military service has been repealed, and almost half the states have laws offering gays some protection from discrimination. Whereas only a decade ago public-opinion polls showed Americans opposing gay marriage by a two-to-one margin, new polls show that slightly more than half of Americans are in favor of it. . . .

Lawrence and Garner may have been reluctant to talk to civil-rights lawyers from the outset, and reluctant to become the face of gay sodomy in Texas, and yet this imperfect test case could be made over into something more than serviceable. Lambda Legal, a national gay-rights advocacy group, agreed to represent them as a means both of directly challenging Bowers v. Hardwick and of highlighting the consequences of criminalizing consensual gay sex. Sodomy laws were almost never enforced, but their very existence legitimatized a culture of homophobia, and as long as Bowers was still on the books gay-rights arguments would be stymied in the courts.

The legal opportunity depended, however, upon persuading the defendants to go along with an unusual strategy. High-powered lawyers would represent Lawrence and Garner, as long as they agreed to stop saying they weren’t guilty and instead entered a “no contest” plea. By doing so, the two were promised relative personal privacy, and given a chance to become a part of gay-civil-rights history. The cause was greater than the facts themselves. Lawrence and Garner understood that they were being asked to keep the dirty secret that there was no dirty secret.

That’s the punch line: the case that affirmed the right of gay couples to have consensual sex in private spaces seems to have involved two men who were neither a couple nor having sex. In order to appeal to the conservative Justices on the high court, the story of a booze-soaked quarrel was repackaged as a love story. Nobody had to know that the gay-rights case of the century was actually about three or four men getting drunk in front of a television in a Harris County apartment decorated with bad James Dean erotica.

The malleability of anti-gay laws is in part a function of failed legal language. “Sodomy” was, for centuries, a crime defined by its unspeakable nature. The eighteenth-century British legal commentator William Blackstone called it a crime “not fit to be named,” which takes you only so far when it comes to drafting a ban. Sodomy was codified thereafter as a “crime against nature,” without much clarity about what unspoken horrors were not to be spoken of. Early American sodomy laws targeted heterosexual as well as homosexual conduct. The vagueness of the original crime tainted the subsequent laws, allowing for selective enforcement, and permitting those laws to turn into statutes that, like the one in Texas, criminalized just homosexual activity. By the time Texas criminalized gay sex, in 1973, it was also legalizing consensual heterosexual sodomy and bestiality.

That same unspoken horror of unnamed “unnatural” deviant conduct leads to Carpenter’s most fascinating revelation: the arresting officers in the Lawrence case never agreed on what they saw that night, and, in fact, reported seeing completely different conduct at the time. Two of the four officers who entered the apartment reported seeing two men having sex. Yet one officer reported seeing anal sex and the other remembered seeing oral sex. The other two saw no sex at all. At least three saw the homoerotic drawing.

Carpenter’s painstaking interviews establish that Garner and Lawrence not only weren’t having sex but were clothed (Lawrence was in his underwear, preparing for bed) and in separate rooms. This makes sense if you consider the timeline that night (Eubanks was ostensibly just slipping out to buy a soda) and the fact that there was yet another man still in the apartment. But the defendants’ accounts were never disclosed to the media. Nor was the existence of Lawrence’s longtime boyfriend, Jose Garcia. Requests by lawyers that the privacy of the two plaintiffs be respected meant that little attention was ever paid to their personal lives. Lawrence and Garner, for their part, were given strict instructions by the lawyers to shun the press. (Carpenter is careful throughout to show that none of the civil-rights lawyers lied or misrepresented the facts.) The litigation strategy, as the case made its way up through the trial courts and appeals courts, was deliberately framed to highlight the need to decriminalize homosexual conduct as a means of recognizing and legitimatizing same-sex “relationships” and “families.” In short, the legal issue was not that free societies must let drunken gay Texans have sex; it was that gay families around the country, in the words of one of the lawyers in the case, “are essentially just like everybody else.”

…

Published in the print edition of the March 12, 2012, issue, with the headline “Extreme Makeover.”

JUSTICE STEVENS announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and V, and an opinion with respect to Parts III, IV, and VI, in which JUSTICE SOUTER and JUSTICE GINSBURG join.

In 1992, the Chicago City Council enacted the Gang Congregation Ordinance, which prohibits "criminal street gang  [*46]  members" from "loitering" with one another or with other persons in any public place. The question presented is whether the Supreme Court of Illinois correctly held that the ordinance violates the Due Process Clause of the Fourteenth Amendment to the Federal Constitution.

I

Before the ordinance was adopted, the city council's Committee on Police and Fire conducted hearings to explore the problems created by the city's street gangs, and more particularly, the consequences of public loitering by gang members. Witnesses included residents of the neighborhoods where gang members are most active, as well as some of the aldermen who represent those areas. Based on that evidence, the council made a series of findings that are included in the text of the ordinance and explain the reasons for its enactment.

The council found that a continuing increase in criminal street gang activity was largely responsible for the city's rising murder rate, as well as an escalation of violent and drug related crimes. It noted that in many neighborhoods throughout the city, "the burgeoning presence of street gang members in public places has intimidated many law abiding citizens." 177 Ill. 2d 440, 445, 687 N.E.2d 53, 58, 227 Ill. Dec. 130 (1997). Furthermore, the council stated that gang members "establish control over identifiable areas . . . by loitering in those areas and intimidating others from entering those areas; and . . . members of criminal street gangs avoid arrest by committing no offense punishable under existing laws when they know the police are present . . . ." Ibid. It further found that "loitering in public places by  [*47]  criminal street gang members creates a justifiable fear for the safety of persons and property in the area" and that "aggressive action is necessary to preserve the city's streets and other public places so that the public may use such places without fear." Moreover, the council concluded that the city "has an interest in discouraging all persons from loitering in public places [****12]  with criminal gang members." Ibid.

The ordinance creates a criminal offense punishable by a fine of up to $ 500, imprisonment for not more than six months, and a requirement to perform up to 120 hours of community service. Commission of the offense involves four predicates. First, the police officer must reasonably believe that at least one of the two or more persons present in a "public place" is a "criminal street gang member." Second, the persons must be "loitering," which the ordinance defines as "remaining in any one place with no apparent purpose." Third, the officer must then order "all" of the persons to disperse and remove themselves "from the area." Fourth, a person must disobey the officer's order. If any person, whether a gang member or not, disobeys the officer's order, that person is guilty of violating the ordinance. Ibid. [FN2]

Two months after the ordinance  [***75]  was adopted, the Chicago Police Department promulgated General Order 92-4 to provide guidelines to govern its enforcement. That order purported to establish limitations on the enforcement discretion of police officers "to ensure that the anti-gang loitering ordinance is not enforced in an arbitrary or discriminatory way." Chicago Police Department, General Order 92-4, reprinted in App. to Pet. for Cert. 65a. The limitations confine the authority to arrest gang members who violate the ordinance to sworn "members of the Gang Crime Section" and certain other designated officers, and establish detailed criteria for defining street gangs and membership in such gangs. Id. at 66a-67a. In addition, the order directs district commanders to "designate areas in which the presence of gang members has a demonstrable effect on the activities of law abiding persons in the surrounding community," and provides that the ordinance "will be enforced only within the designated areas." Id. at 68a-69a. The city, however, does not release the locations of these "designated areas" to the public.

II

During the three years of its enforcement, the police issued over 89,000 dispersal orders and arrested over 42,000 people for violating the ordinance. In the ensuing enforcement proceedings, two trial judges upheld the constitutionality of the ordinance, but eleven others ruled that it was invalid. In respondent Youkhana's case, the trial judge held that the "ordinance fails to notify individuals what conduct is prohibited, and it encourages arbitrary and capricious enforcement by police."

Illinois Appellate Court affirmed the trial court's ruling in the Youkhanacase, consolidated and affirmed other pending appeals in accordance with Youkhana, and reversed the convictions of respondents Gutierrez, Morales, and others. The Appellate Court was persuaded that the ordinance impaired the freedom of assembly of non-gang members in violation of the First Amendment to the Federal Constitution and Article I of the Illinois Consti- tution, that it was unconstitutionally vague, that it improperly criminalized status rather than conduct, and that it jeopardized rights guaranteed under the Fourth Amendment.

The Illinois Supreme Court affirmed. It held "that the gang loitering ordinance violates due process of law in that it is impermissibly vague on its face and an arbitrary restriction on personal liberties." 177 Ill. 2d at 447, 687 N.E.2d at 59. The court did not reach the contentions that the ordinance "creates a status offense, permits arrests without probable cause or is overbroad." Ibid.

In support of its vagueness holding,  [****17]  the court pointed out that the definition of "loitering" in the ordinance drew no distinction between innocent conduct and conduct calculated  [*51]   [***77]  to cause harm. "Moreover, the definition of 'loiter' provided by the ordinance does not assist in clearly articulating the proscriptions of the ordinance." 177 Ill. 2d at 451-452, 687 N.E.2d at 60-61. Furthermore, it concluded that the ordinance was "not reasonably susceptible to a limiting construction which would affirm its validity."

We granted certiorari, 523 U.S. (1998), and now affirm. Like the Illinois Supreme Court, we conclude that the ordinance enacted by the city of Chicago is unconstitutionally vague.

III

The factual predicate for the city's ordinance is not in dispute. As the city argues in its brief, "the very presence of a large collection of obviously brazen, insistent, and lawless gang members and hangers-on on the public ways intimidates residents, who become afraid even to leave their homes and go about their business. That, in turn, imperils community residents' sense of safety and security, detracts from property values, and can ultimately destabilize entire neighborhoods." The findings in the ordinance explain that it was motivated by these concerns. We have no doubt that a law that directly prohibited such intimidating conduct would be constitutional, but this ordinance broadly covers a significant amount of additional activity. Uncertainty about the scope of that additional coverage provides the basis for respondents' claim that the ordinance is too vague.

We are confronted at the outset with the city's claim that it was improper for the state courts to conclude that the ordinance is invalid on its face. The city correctly points out that imprecise laws can be attacked on their face under two different doctrines. 18 First, the overbreadth doctrine permits the facial invalidation [****20]  of laws that inhibit the exercise  [***78]  of First Amendment rights if the impermissible applications of the law are substantial when "judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 612-615, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973). Second, even if an enactment does not reach a substantial amount of constitutionally protected conduct, it may be impermissibly vague because it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests. Kolender v. Lawson, 461 U.S. 352, 358, 75 L. Ed. 2d 903, 103 S. Ct. 1855 (1983).

While we, like the Illinois courts, conclude that the ordinance is invalid on its face, we do not rely on the overbreadth doctrine. We agree with the city's submission that the law does not have a sufficiently substantial impact on conduct  [*53]  protected by the First Amendment to render it unconstitutional. The ordinance does not prohibit speech. Because the term "loiter" is defined as remaining in one place [****21]  "with no apparent purpose," it is also clear that it does not prohibit any form of conduct that is apparently intended to convey a message. By its terms, the ordinance is inapplicable to assemblies that are designed to demonstrate a group's support of, or opposition to, a particular point of view. Cf. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 82 L. Ed. 2d 221, 104 S. Ct. 3065 (1984); Gregory v. Chicago, 394 U.S. 111, 22 L. Ed. 2d 134, 89 S. Ct. 946 (1969). Its impact on the social contact between gang members and others does not impair the First Amendment "right of association" that our cases have recognized. See Dallas v. Stanglin, 490 U.S. 19, 23-25, 104 L. Ed. 2d 18, 109 S. Ct. 1591 (1989).

On the other hand, as the United States recognizes, freedom to loiter for innocent purposes is part of the "liberty" protected by the Due Process Clause of the Fourteenth Amendment. We have expressly identified this "right to remove from one place to another according to inclination" as "an attribute of personal liberty" protected by the Constitution. Williams v. Fears, 179 U.S. 270, 274, 45 L. Ed. 186, 21 S. Ct. 128 (1900); see also Papachristou v. Jacksonville, 405 U.S. 156, 164, 31 L. Ed. 2d 110, 92 S. Ct. 839 (1972). 20  [*54]  Indeed, it is apparent  [**1858]  that an individual's [***79]  decision to remain in [****22]  a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is "a part of our heritage" Kent v. Dulles, 357 U.S. 116, 126, 2 L. Ed. 2d 1204, 78 S. Ct. 1113 (1958), or the right to move "to whatsoever place one's own inclination may direct" identified in Blackstone's Commentaries. 1 W. Blackstone, Commentaries on the Laws of England 130 (1765). 21  [****23]   [****24] 

 [*55]  [****25]  There is no need, however, to decide whether the impact of the Chicago ordinance on constitutionally protected liberty alone would suffice to support a facial challenge under the overbreadth doctrine. Cf. Aptheker v. Secretary of State, 378 U.S. 500, 515-517, 12 L. Ed. 2d 992, 84 S. Ct. 1659 (1964) (right to travel); Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 82-83, 49 L. Ed. 2d 788, 96 S. Ct. 2831 (1976) (abortion); Kolender v. Lawson, 461 U.S. at 358-360, nn. 3, 9. For it is clear that the vagueness of this enactment makes a facial challenge appropriate. This is not an ordinance that "simply regulates business behavior and contains a scienter requirement." See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499, 71 L. Ed. 2d 362, 102 S. Ct. 1186 (1982). It is a criminal law that contains no mens rearequirement, see Colautti v. Franklin, 439 U.S. 379, 395, 58 L. Ed. 2d 596, 99 S. Ct. 675 (1979), and infringes on constitutionally protected rights, see id. at 391. When vagueness permeates the text of such a law, it is subject to facial attack.

Vagueness may invalidate a criminal law for either of two independent  [***80] reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement. See Kolender v. Lawson, 461 U.S. at 357. Accordingly, we first consider whether the ordinance provides fair notice to the citizen and then discuss its potential for arbitrary enforcement.

IV

It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits . . . ." Giaccio v. Pennsylvania, 382 U.S. 399, 402-403, 15 L. Ed. 2d 447, 86 S. Ct. 518 (1966). The Illinois Supreme Court recognized that the term "loiter" may have a common and accepted meaning, 177 Ill. 2d at 451, 687 N.E.2d at 61, but the definition of that term in this ordinance -- "to remain in any one place with no apparent purpose" -- does not. It is difficult to imagine how  [*57]  any citizen of the city of Chicago standing in a public place with a group of people would know if he or she had an "apparent purpose." If she were talking [****27]  to another person, would she have an apparent purpose? If she were frequently checking her watch and looking expectantly down the street, would she have an apparent purpose? 23

Since the city cannot conceivably have meant to criminalize each instance a citizen stands in public with a gang member, the vagueness that dooms this ordinance is not the product of uncertainty about the normal meaning of "loitering," but rather  [***81] about what loitering is covered by the ordinance and what is not. The Illinois Supreme Court emphasized the law's failure to distinguish between innocent conduct and conduct threatening [****28]  harm. 24 Its decision followed the precedent set by a number of state courts that have upheld ordinances that criminalize loitering combined with some other overt act or evidence of criminal intent. 25  [**1860] However, state  [*58]  courts have uniformly invalidated laws that do not join the term "loitering" with a second specific element of the crime. 26  [****29] 

The city's principal response to this concern about adequate notice is that loiterers are not subject to sanction until after they have failed to comply with an officer's order to disperse. "Whatever problem is created by a law that criminalizes conduct people normally believe to be innocent is solved when persons receive actual notice from a police order of what they are expected to do." 27 We find this response unpersuasive for at least two reasons.

First, the purpose of the fair notice requirement is to enable the ordinary citizen to conform his or her conduct to the law. "No one may be required at peril of life, liberty or property [****30]  to speculate as to the meaning of penal statutes." Lanzetta v. New Jersey, 306 U.S. 451, 453, 83 L. Ed. 888, 59 S. Ct. 618 (1939). Although it is true that a loiterer is not subject to criminal sanctions unless he or she disobeys a dispersal order, the loitering is the conduct that the ordinance is designed to prohibit. 28 If the loitering is in fact harmless and innocent, the dispersal order itself is an unjustified impairment of liberty. If the police are able to decide arbitrarily which members of the public they will order to disperse, then the Chicago ordinance becomes indistinguishable from the law we held invalid in Shuttlesworth v. Birmingham,382 U.S. 87, 90, 15 L. Ed. 2d 176, 86 S. Ct.  [***82]  211  [*59]  (1965). 29 Because an officer may issue an order only after prohibited conduct has already occurred, it cannot provide the kind of advance notice that will protect the putative loiterer from being ordered to disperse. Such an order cannot retroactively give adequate warning of the boundary between the permissible and the impermissible applications of the law.

 [****31]  Second, the terms of the dispersal order compound the inadequacy of the notice afforded by the ordinance. It provides that the officer "shall order all such persons to disperse and remove themselves from the area." App. to Pet. for Cert. 61a. This vague phrasing raises a host of questions. After such an order [****32]  issues, how long must the loiterers remain apart? How far must they move? If each loiterer walks around the block and they meet again at the same location, are they subject to arrest or merely to being ordered to disperse again? As we do here, we have found vagueness in a criminal statute exacerbated by the use of the standards of "neighborhood" and "locality." Connally v. General Constr. Co., 269 U.S. 385, 70 L. Ed. 322, 46 S. Ct. 126 (1926). We remarked in Connally that "both terms are elastic and, dependent upon circumstances, may be equally satisfied by areas measured by rods or by miles." Id. at 395.

Lack of clarity in the description of the loiterer's duty to obey a dispersal order might not render the ordinance  [**1861]  unconstitutionally  [*60]  vague if the definition of the forbidden conduct were clear, but it does buttress our conclusion that the entire ordinance fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted. The Constitution does not permit a legislature to "set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large." United Statesv.  [****33]  Reese, 92 U.S. 214, 221, 23 L. Ed. 563 (1876). This ordinance is therefore vague "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all." Coates v. Cincinnati, 402 U.S. 611, 614, 29 L. Ed. 2d 214, 91 S. Ct. 1686 (1971).

V

The broad sweep of the ordinance also violates "'the requirement that a legislature establish minimal guidelines to govern law enforcement.'" Kolender v. Lawson, 461 U.S. at 358. There are no such guidelines in the ordinance. In any public place in the city of Chicago, persons who stand or sit in the company of a gang member may be ordered to disperse unless their purpose is apparent. The mandatory language in the enactment directs the police to issue an order without first making any inquiry about their possible purposes. It matters not whether the reason that a gang member and his father, for example, might loiter near Wrigley Field is to rob an unsuspecting fan or just to get a glimpse of Sammy Sosa leaving the ballpark; in either event, if their purpose is not apparent to a nearby police officer, she may -- indeed, she "shall" -- order them to disperse.

Recognizing that the ordinance does reach a substantial amount of innocent conduct, we turn, then, to its language to determine if it "necessarily entrusts lawmaking to the moment-to-moment judgment of the policeman on his beat." Kolender v. Lawson, 461 U.S. at 359 (internal quotation marks omitted). As we discussed in the context of fair notice,  [*61]  see supra, at 12, the principal source of the vast discretion conferred on the police in this case is the definition of loitering as "to remain in any one place with no apparent purpose."

As the Illinois Supreme Court interprets that definition, it "provides absolute discretion to police officers to determine what activities constitute loitering." We have no authority to construe the language of a state statute more narrowly than the construction given by that State's highest court. 31 "The power to determine the meaning of a statute carries with it the power to prescribe its extent and limitations as well as the method by which they shall be determined." Smiley v. Kansas, 196 U.S. 447, 455, 49 L. Ed. 546, 25 S. Ct. 289 (1905).

Nevertheless, the city disputes the Illinois Supreme Court's interpretation, arguing that the text of the ordinance limits the officer's discretion in three ways. First, it does not permit the officer to issue a dispersal order to anyone who is moving along or who has an apparent purpose. Second, it does not permit an arrest if individuals obey a dispersal order. Third, no order can issue unless the officer reasonably believes that one of the loiterers is a member of a criminal street gang.

Even putting to one side our duty to defer to a state court's construction of the scope of a local enactment, we find each of these limitations insufficient. That the ordinance does not apply to people who are moving -- that is, to activity that would not constitute loitering under any possible definition of the term -- does not even address the question of how much discretion the police enjoy in deciding which stationary persons  [*62]  to disperse under the ordinance. 32Similarly, that the  [**1862]  ordinance does not permit an arrest until after a dispersal order has been disobeyed does not provide any guidance to the officer deciding whether such an order should issue. The "no apparent purpose" standard for [****36] making that decision is inherently subjective because  [***84]  its application depends on whether some purpose is "apparent" to the officer on the scene.

Presumably, an officer would have discretion to treat some purposes -- perhaps a purpose to engage in idle conversation or simply to enjoy a cool breeze on a warm evening -- as too frivolous to be apparent if he suspected a different ulterior motive. Moreover, an officer conscious of the city council's reasons for enacting the ordinance might well ignore its text and issue a dispersal order, even though an illicit purpose is actually apparent.

It is true, as the city argues, that the requirement that the officer [****37]  reasonably believe that a group of loiterers contains a gang member does place a limit on the authority to order dispersal. That limitation would no doubt be sufficient if the ordinance only applied to loitering that had an apparently harmful purpose or effect, 33 or possibly if it only applied to loitering by persons reasonably believed to be criminal gang members. But this ordinance, for reasons that are not explained in the findings of the city council, requires no harmful purpose and applies to non-gang members as well as suspected gang members. 34 It applies to everyone in the city  [*63]  who may remain in one place with one suspected gang member as long as their purpose is not apparent to an officer observing them. Friends, relatives, teachers, counselors, or even total strangers might unwittingly engage in forbidden loitering if they happen to engage in idle conversation with a gang member.

Ironically, the definition of loitering in the Chicago ordinance not only extends its scope to encompass harmless conduct, but also has the perverse consequence of excluding from its coverage much of the intimidating conduct that motivated its enactment. As the city council's findings demonstrate, the most harmful gang loitering is motivated either by an apparent purpose to publicize the gang's dominance of certain territory, thereby intimidating nonmembers, or by an equally apparent purpose to conceal ongoing commerce in illegal drugs. As the Illinois Supreme Court has not placed any limiting construction on the language [****39]  in the ordinance, we must assume that the ordinance means what it says and that it has no application to loiterers whose purpose is apparent. The relative importance of its application to harmless loitering is magnified by its inapplicability to loitering that has an obviously threatening or illicit purpose.

Finally, in its opinion striking down the ordinance, the Illinois Supreme Court refused to accept the general order issued by the police department as a sufficient limitation on the "vast amount of discretion" granted to the police in its enforcement. We agree. See Smith v. Goguen, 415 U.S. 566, 575, 39 L. Ed. 2d 605, 94 S. Ct. 1242 (1974). That the police  [***85]  have adopted internal rules limiting their enforcement to certain designated areas in the city would not provide a defense to a loiterer who might be arrested elsewhere. Nor could a person who knowingly loitered with a well-known gang member anywhere in the city  [*64]  safely assume that they would not be ordered to disperse no matter how innocent and harmless their loitering might be.

VI

In our judgment, the Illinois Supreme Court correctly concluded that the ordinance does not provide sufficiently specific limits on the enforcement discretion of the police [****40]  "to meet constitutional standards for definiteness and clarity." 35 177 Ill. 2d at 459, 687 N.E.2d at 64. We recognize the serious and difficult problems testified to by the citizens of Chicago that led to the enactment of this ordinance. "We are mindful that the preservation of liberty depends in part on the maintenance of social order." Houston v. Hill, 482 U.S. 451, 471-472, 96 L. Ed. 2d 398, 107 S. Ct. 2502 (1987). However, in this instance the city has enacted an ordinance that affords too much discretion to the police and too little notice to citizens who wish to use the public streets.

Accordingly, the judgment of the Supreme Court of Illinois is affirmed.

FN2: The ordinance states in pertinent part: “(a) Whenever a police officer observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place with one or more other persons, he shall order all such persons to disperse and remove themselves from the area. Any person who does not promptly obey such an order is in violation of this section. “ (b) It shall be an affirmative defense to an alleged violation of this section that no person who was observed loitering was in fact a member of a criminal street gang. “(c) As used in this section: “(1) ‘Loiter’ means to remain in any one place with no apparent purpose. “(2) ‘Criminal street gang’ means any ongoing organization, association in fact or group of three or more persons, whether formal or informal, having as one of its substantial activities the commission of one or more of the criminal acts enumerated in paragraph (3), and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity. . . . . . “(5) ‘Public place’ means the public way and any other location open to the public, whether publicly or privately owned. “(e) Any person who violates this Section is subject to a fine of not less than $100 and not more than $500 for each offense, or imprisonment for not more than six months, or both. “In addition to or instead of the above penalties, any person who violates this section may be required to perform up to 120 hours of community service pursuant to section 1—4—120 of this Code.” Chicago Municipal Code §8—4—015 (added June 17, 1992), reprinted in App. to Pet. for Cert. 61a—63a. 

Journal of Criminal Law and Criminology, Spring 1999

FOREWORD: RACE, VAGUENESS, AND THE SOCIAL MEANING OF ORDER-MAINTENANCE POLICING

DOROTHY E. ROBERTS

Copyright (c) 1999 Northwestern University School of Law;

1. Introduction

… The Morales case was decided without much attention to race. Race did not play a role in either the Illinois Supreme Court’s opinion overturning the Chicago ordinance or the United States Supreme Court’s affirmance. Yet issues of race are critical to the constitutionality of the gang-loitering law from the perspectives of both its supporters and its opponents. The disproportionate number of Blacks and Latinos arrested under the ordinance alone suggests that race mattered in the passage and enforcement of the ordinance. Racism is also one of the motivating concerns underlying constitutional objections to vague loitering laws like the Chicago ordinance. Ironically, race is also at the center of the strongest argument in favor of upholding the ordinance. Some of the law’s defenders argue that Black support for the ordinance demonstrates its efficacy at protecting inner-city communities from crime and outweighs concerns about the violations of citizens’ civil liberties.

Given the predominance of race in the arguments both for and against the gang-loitering ordinance, the debate about its constitutionality should carefully address the relation between this and similar order-maintenance policing measures and Black Americans’ political and social status. Is the disproportionate arrest of people of color under the ordinance evidence of racial discrimination, or evidence that the Chicago Police Department is finally starting to protect the city’s minority communities against internal disorder? Does the apparent support of many inner-city residents for new policing techniques trump constitutional arguments based on the racial disparity in the arrests? To borrow the terms of the sociological theorists, are the social norms enforced by order-maintenance policing beneficial or detrimental to African Americans given current political conditions?  …

1. Race and The Problem with Vagueness

The Supreme Court held that the Chicago gang-loitering ordinance violated the due process clause of the Constitution because it was an excessively vague impairment of citizens’ personal liberty to move freely on the streets. Although this constitutional flaw can be explained in race-neutral terms, in Chicago it resulted in a particular racial injury; the gang-loitering law disproportionately violated the rights of Black and Latino citizens. One of the main problems with vague statutes is their capacity to further racial injustice in the criminal justice system. Examining the relationship between racial inequality and the vagueness doctrine in the context of Morales helps to illuminate the political basis for this important constitutional shield against police abuse.

Vague statutes pose two problems: when criminal codes fail to clearly define the offense, citizens may not understand what conduct is prohibited and police are likely to enforce the law in an arbitrary and discriminatory manner. The Chicago law’s definition of loitering raised both of these problems. The ordinance directed police officers who observe anyone whom they reasonably believe to be a gang member standing in any public place “with no apparent purpose” with one or more other persons to order the entire group to leave the area. Officers were permitted to arrest anyone who fails to promptly obey the dispersal order. The prohibition against remaining in a place without an “apparent purpose” offers no guidance for determining what behavior an officer might consider illegal. How can someone standing on a Chicago sidewalk predict an observing officer’s interpretation of her reason for being there?

. . . Rather than coherently delineate the behavior that the ordinance bans, the City Council left it to the police to distinguish between criminal and legitimate public presence.  For this reason, the law’s broad language was also an invitation to police abuse. Giving police officers the authority to determine on the spot the legality of conduct creates the chief evil of vague criminal statutes. As the Court recognized in prior decisions, “the most important aspect of the vagueness doctrine is ‘. . . the requirement that a legislature establish minimal guidelines to govern law enforcement.” ’ Without these guidelines, police have a tendency to enforce the law against groups that they despise. The city council deliberately made the law’s reach exceptionally wide “so that persons who are undesirable in the eyes of the police and prosecutors can be convicted even though they are not chargeable with any other particular offense.” The Chicago Police Department took full advantage of the leeway the ordinance granted. From 1992 until 1995, police issued over 89,000 orders to disperse and arrested over 42,000 people for disobeying their orders. This is the point of vague loitering laws: they permit the police to haul off the streets people who look suspicious even though they have committed no criminal conduct. In fighting its gang problem, the courts concluded, “the city cannot empower the police to sweep undesirable persons from the public streets through vague and arbitrary criminal ordinances.”

Loitering laws inevitably involve judgments about people’s criminal propensity. They embody legislative predictions about the likelihood that people engaged in certain activities, bearing certain characteristics, or belonging to certain groups will engage in criminal activity. This preventive measure is justified as a means of removing crime-prone people from the streets before they have a chance to break the law. Loitering laws, then, give the state an advantage in fighting crime and maintaining public order. The vaguer the law, the greater the benefit it provides as a prophylactic tool. The Supreme Court has determined that vague loitering laws’ infringement of liberty outweighs any benefit for law enforcement these laws offer. Why should we fear so much the state’s power to identify people with a propensity for crime and to remove them from the streets when this power might help to guarantee safer neighborhoods?

One answer is that expansive and ambiguous allocations of police discretion are likely to unjustly burden members of unpopular or minority groups.  Papachristou v. City of Jacksonville, perhaps the Supreme Court’s most important invalidation of vague loitering laws, suggests this rationale.

…

In the United States, vagrancy-type laws served the same function in the regime of white domination of Blacks. The colonies sought to prevent slave rebellions by enacting laws that prohibited slaves from traveling without a pass and permitted slave patrols to arrest slaves on mere suspicion of sedition. After Emancipation, white southerners tied freed Blacks to plantations through Black Codes that punished vagrancy. As the Court described them, “vagrancy laws were used after the Civil War to keep former slaves in a state of quasi slavery.”  A more contemporary example of the oppressive restriction of movement is the requirement of the apartheid regime in South Africa that Blacks carry passes while traveling in white districts.

The mandate that police arrest individuals who do not promptly disperse and “remove themselves from the area” exacerbates this constitutional violation. The obligation to leave *789 “the area” gives police officers additional discretion to decide whether someone has complied with their orders by moving far enough away. It also magnifies the racist nature of the law’s control over movement in the city. The ordinance’s leave-the-area requirement might be interpreted as an order to leave the neighborhood, a site delineated in Chicago by race and ethnicity.  As amici noted, “[a] law authorizing police to order strangers back to their own neighborhood would make all-too-real the concerns of Chicago aldermen who compared this ordinance to South Africa’s pass laws.”

The arrest of the named plaintiff, Jesus Morales, illustrates the law’s potential for racial bias. Morales was arrested when he stood on a street corner with five other Latino teenagers in a predominantly white neighborhood. The arresting officer testified that he initially approached the group “[b] ecause we wanted to know if they lived in the neighborhood.” He concluded that Morales was a gang member because Morales wore blue and black clothes, the colors of the Gangster Disciples street gang.  It appears that Morales became the subject of suspicion because of his ethnicity: being Latino made his presence in a white neighborhood alarming; it also made it seem likely that his clothing signified gang membership. Vague loitering laws give license to police officers to arrest people purely on the basis of race-based suspicions like these. 

Vagrancy Then and Now

“Laws prohibiting loitering and vagrancy have been a fixture of Anglo-American law at least since the time of the Norman Conquest,” wrote Justice Thomas in his dissent in City of Chicago v. Morales. Morales explored the meaning of the term loiter, but what        is “vagrancy”? The term is often associated with idleness, but as a criminal offence, vagrancy is notoriously hard to define. Arguably, that is the point of the term: to capture an array of behaviors or conditions that are not easily defined in a written statute. Here is one typical vagrancy statute:

Rogues and vagabonds, or dissolute persons who go about begging, common gam- blers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen prop- erty, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children shall be deemed vagrants and, upon conviction in the Municipal Court shall be punished as provided for Class D offenses.

What is a rogue, a vagabond, a wanton person, a habitual loafer? This particular statute, Jacksonville Ordinance Code § 26-57, was found to be unconstitutionally vague in Papachristou v. City of Jacksonville (1972). Until Papachristou, the legitimacy of vagrancy law was largely taken for granted, and even after Papachristou, new versions of vagrancy have persisted, as discussed below. According to one scholar, vagrancy laws were popular among ruling authorities for two reasons. “First, the laws’ breadth and ambiguity gave the police virtually unlimited discretion…. [I]t was almost always possible to justify a vagrancy arrest.” Risa Goluboff, Vagrant Nation 2 (2016). Additionally, “vagrancy laws made it a crime to be a certain type of person…. Where most American laws required people to do something criminal before they could be arrested, vagrancy laws emphati- cally did not.” Id. “The goals was to prevent crimes which may likely flow from a vagrant’s mode of life…. Such preventive purpose wholly fails if a law enforcement officer must wait until a crime is committed.” Id. (internal quotation marks omitted). Another function of vagrancy and loitering laws, echoed by Chicago’s approach to “gang loitering,” was sim- ply to enable police to clear public spaces of people thought to be dangerous or other- wise undesirable. Once brought to court, many persons arrested for vagrancy would be offered dismissal of the charges on the condition that they leave the area and not return.

But in other contexts, the point of a vagrancy arrest was very different. As the Morales plurality mentioned [Fn. 2 in the opinion as edited above], “vagrancy laws were used after the Civil War to keep former slaves in a state of quasi slavery.” The Thirteenth Amend- ment to the U.S. Constitution abolishes slavery “except as a punishment for crime.” After the Thirteenth Amendment was adopted, many southern states sought to replace the lost labor of enslaved persons through a practice known as “convict leasing.” Black men and women were arrested and prosecuted for vagrancy, then “leased” or “sold” to companies that would force them to labor. A Pulitzer-Prize-winning historical study of convict leas- ing opens with this example:

"On March 30, 1908, Green Cottenham was arrested by the sheriff of Shelby County, Alabama, and charged with vagrancy. Cottenham had committed no true crime. Vagrancy, the offense of a person not being able to prove at a given moment that he or she is employed, was … dredged up from legal obscurity at the end of the nineteenth century by the state legisla- tures of Alabama and other southern states. It was capriciously enforced by local sheriffs and constables, adjudicated by mayors and notaries public … and, most tellingly in a time of massive unemployment among all southern men, was reserved almost exclusively for black men. Cottenham’s offense was blackness.

… Cottenham was found guilty in a swift appearance before the county judge and immediately sentenced to a thirty-day term of hard labor. Unable to pay the array of fees assessed on every prisoner … Cottenham’s sentence was extended to nearly a year of hard labor. The next day, Cottenham was sold [to a mining company which would] pay off Cottenham’s fine and fees."

- from Douglas Blackmon, Slavery By Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II (2008).

Convict leasing eventually came to an end after World War II, in part because of a change in enforcement decisions: federal prosecutors finally began to enforce the federal statutes that made “peonage,” or the use of forced labor, into a crime. Even so, the sep- arate vagrancy statutes remained valid law. Indeed, even after the 1972 Papachristou decision struck down the Jacksonville vagrancy ordinance quoted above, and called into question the constitutionality of similar laws, vagrancy did not exactly fade to obscurity. Florida enacted a new vagrancy law that made it a crime “to loiter or prowl in a place,  at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” (See Goluboff, Vagrant Nation, p. 331.) Chicago similarly re- enacted a new version of its gang loitering ordinance after Morales, as discussed above. The revised Florida loitering law and the revised gang loitering ordinance are still in place as of 2024.

Taken from: Alice Ristroph, Criminal Law: An Integrated Approach, Second Edition, Published by CALI eLangdell® Press. Available under a Creative Commons (CC BY-NC-SA 4.0) License.

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