USUAL CRUELTY The New Sundown Towns (edited by Jocelyn Simonson

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.

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