Criminalizing Homelessness: Implications for Defense Practice

The Supreme Court effectively greenlit the criminalization of homelessness in its decision in City of Grants Pass, Oregon v. Johnson, where the Court upheld Oregon’s anti-camping ordinance. This decision comes at a time when the homeless population in the United States is at an all-time high, reaching a record 771,480 people in 2024, an 18% increase from 2023. This increase, largely driven by the United States’ affordability crisis, has spurred an alarming discourse about extreme measures to address this issue, like incarcerating people for sleeping on the street.

Images of large encampments in major cities like Washington D.C., Minneapolis, Austin and, most famously, San Francisco, have been met with hostility in the media and a bipartisan political push for swift removal by any means necessary. Yet with rental affordability at an all-time low, the question is: if unhoused individuals cannot remain where they are, where are they expected to go? Experts recommend expanding shelter capacity and housing programs. Instead, many cities have turned to incarceration as a removal tool, knowing it is not a permanent solution.   

On the West Coast in particular, municipalities have leaned on anti-camping ordinances as legal grounds to remove individuals and clear encampments. Advocates against this “solution” to the problem characterize it as cruel, as well as caution legislators that these removals exacerbate the problem in a number of ways. First, subjecting individuals to arrest or separation from their belongings is destabilizing to people who are already struggling to obtain stable housing and employment. Second, incarceration comes at a high cost to taxpayers – a singular prison bed in a state or federal prison costs an estimated $20,000 per year.

Despite these concerns, the Court was unpersuaded by experts writing as amici in Grants Pass and characterized forced removal or incarceration as “one important tool among others to encourage individuals experiencing homelessness to accept services and to help ensure safe and accessible sidewalks and public spaces.” However, there is no evidence that shows unhoused people are more likely to accept services if the threat of arrest or removal is asserted. The idea that there is a large group of people who are “voluntary homeless” is also a false narrative. In fact, there is a nationwide shortage of 200,000 year-round shelter beds for adults. For many, a shelter may not be an option even if there were enough beds because they may not meet the requirements for admission.

Since the Grants Pass ruling, both Democrat and Republican-run jurisdictions have doubled down on encampment bans and increased enforcement. For example, a wave of new laws enacted by legislatures across the Ninth Circuit broadened several cities' ability to remove or incarcerate homeless residents. In California, Governor Gavin Newsom signed an executive order directing state agencies and departments to enforce anti-camping laws on state property. Similarly, in Washington D.C., President Trump and federal officials have created a media spectacle, aggressively removing unhoused people from encampments across the city and warning “if they refuse, they will be susceptible to fines or to jail time.”

With so few protections from politicians and the state legislature, the question is what advocates and, more specifically, attorneys can do to protect this marginalized and growing group of Americans. Although the Court decisively rejected the argument that anti-camping bans constitute cruel and unusual punishment under the Eighth Amendment, several constitutional avenues remain open. For example, advocates have suggested pursuing claims of procedural due process violations during encampment sweeps, challenging excessive fines, or invoking federal antidiscrimination laws such as the Fair Housing Act to argue that anti-camping statutes disproportionately target homeless individuals.

While civil rights and housing attorneys will be critical in shaping long-term strategies, criminal defense attorneys will have the most immediate impact. Defense attorneys are uniquely positioned to directly combat the societal biases that come with anti-camping or equivalent charges. Some experts encourage creating beneficial precedents, such as Fourth Amendment protections for encampments or asserting necessity as a defense to removal. These can be positive steps toward protection while policy solutions are considered. However, on an individual impact level, defense attorneys must address the equally important issue of combating “the collateral consequences associated with having a criminal record,” such as advocating for dismissal of charges or expungement so people can “qualify for safe and stable housing” when released.

The Grants Pass decision marks a dangerous shift in how the law intersects with one of the nation’s most pressing crises. By framing criminalization as a “tool” for managing homelessness, the Court has not only legitimized punitive policies but has emboldened state and local governments to escalate enforcement as well. However, the ruling does not leave advocates powerless. In this new legal landscape, criminal law practitioners must step to the forefront because, in the wake of Grants Pass, it has been made clear that municipalities will continue to use criminal enforcement as a primary response to homelessness. Practitioners are uniquely positioned to challenge the legitimacy of anti-camping charges, and, beyond the courtroom, attorneys can mitigate the devastating collateral consequences of criminalization. While long-term policy reforms are essential, the immediate fight will occur in criminal courts, where defense attorneys have both the opportunity and the obligation to blunt the harms inflicted by the Court.