SCOTUS, Camping Ordinances, and the Eighth Amendment

Last week, SCOTUS agreed to hear a case about a city’s ban on camping in public places. The case is connected to the increase in homelessness in many cities on the West Coast and the challenges to sanitation, the public’s enjoyment of public property, and crime control. But the case is about much more than how cities deal with people experiencing homelessness. The case raises the specter of the Eighth Amendment being expanded to give unelected judges another tool to second-guess state and local policy choices.

First, let’s examine the background and purpose of the Eighth Amendment, which provides that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The language of the Eighth Amendment is derived from the English Bill of Rights. The English Bill of Rights contained a similar provision because of the Stuart kings. The Stuarts, especially during the reign of Charles I, made widespread use of the Star Chamber, a court that earned a reputation for abuse of power and torture.

Opponents of the Constitution of 1787 demanded protection against an American Star Chamber. In the Massachusetts ratifying convention, Abraham Holmes inveighed that Congress was “nowhere restrained from inventing the cruel and unheard-of punishments, and annexing them to crimes.” He feared that “racks and gibbets may be amongst the most mild instruments of their discipline.” In the Virginia ratifying convention, Patrick Henry warned that “when we come to punishments, no latitude ought to be left, nor dependence put on the virtue of representatives.” The distinguished ancestors of Virginians would not stand for such leeway nor “admit of tortures, or cruel and barbarous punishment.”

New York, North Carolina, Pennsylvania, Rhode Island, and Virginia all requested amendments in the spirit of our current Eighth Amendment. The First Congress heard Anti-Federalists’ complaints and submitted our current Eighth Amendment to the states as part of the Bill of Rights. The Cruel and Unusual Punishments Clause—as its plain words and historical context indicate—sought to prohibit unnecessary and wanton infliction of pain—such as torture—in punishment for an offense.

There is a trend in the Ninth Circuit Court of Appeals to give the Eighth Amendment a substantive reading and thus conclude that the prohibition does not apply just to punishments inflicted but to the reasonableness of a law. These decisions have occurred in the context of desperate municipalities attempting to stop the takeover of their streets by people experiencing homelessness. For example, in Martin v. City of Boise (9th Cir. 2019), the Ninth Circuit held that the Cruel and Unusual Punishments Clause prohibits cities from enforcing a criminal law restricting public camping unless the violator has “access to adequate temporary shelter.” In Johnson v. City of Grants Pass (9th Cir. 2022), the court extended its decision in Martin to civil sanctions. Also, it forbade the City of Grants Pass from enforcing its ordinance prohibiting camping on public property.

These decisions are contrary to the original understanding of the Cruel and Unusual Punishments Clause, which prohibits methods of punishment that inflict unnecessary pain. For example, had Grants Pass decreed that violators of the camping ordinance would suffer waterboarding, then a court would be correct to evaluate the propriety of the punishment inflicted. But the Ninth Circuit has waded into the realm of policymaking—not the methods of punishment. As a matter of public policy, it disapproves of the cities prohibiting homeless persons from erecting shantytowns on public property and thus interfering with the public’s use and enjoyment of that public property.

It is preposterous to claim that generally applicable restrictions on public camping come within the ambit of the Eighth Amendment. Certainly, a modest fine or an exclusion order banning offenders from public property cannot be defined as cruel and unusual. While a policymaker could perhaps argue that there are more effective ways to reduce the stress on public property caused by the homelessness crisis, judges overreach in using the Cruel and Unusual Punishments Clause to strike a plainly reasonable city ordinance prohibiting public camping. The Ninth Circuit has strayed far from the clause’s plain language and original intent. If its interpretation stands, courts will be armed with yet another tool to Monday-morning-quarterback the decisions of elected representatives.

Let’s hope the Supreme Court does the right thing and rejects the Ninth Circuit’s interpretation of the Cruel and Unusual Punishments Clause.

William J. Watkins, Jr. is a Research Fellow at the Independent Institute and author of the Independent books, Crossroads for Liberty, Reclaiming the American Revolution, and Patent Trolls.
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