Supreme Court Ruling | Martin/Idaho/2019/Homelessness: Homelessness cannot be punished for sleeping or sheltering on the streets in the absence of alternatives [supremecourt.gov]

 

https://www.supremecourt.gov/DocketPDF/19/19-247/120350/20191025155500009_2019-10-25%20Boise%20No.%2019-247%20Martin%20Brief%20in%20Opp.pdf

( excerpt )

I. 

THERE IS NO CONFLICT WARRANTING THIS COURT’S REVIEW The decision below recognizes that it would be cruel and unusual to criminally punish a homeless person who violates the law simply because he engages in the biologically compelled activities of sitting, lying or sleeping outside when he has no place else to go. That result reflects basic common sense, is consistent with this Court’s precedent, and creates no conflict in authority with any court of appeals or state court of last resort.

16 A.The Decision Below Does Not Conflict With This Court’s Precedent  

1. In Robinson v. California, 370 U.S. 660 (1962), this Court established that laws that criminalize an individual’s “status” violate the Eighth Amendment, and accordingly struck down a law that criminalized the status of addiction. Six years later, in Powell v. Texas, 392 U.S. 514 (1968), the Court considered whether Robinson extended to the criminalization of public intoxication. In a fractured opinion, a four-member plurality concluded that Robinson did not apply to conduct, and thus did not bar a city from criminalizing the act of being drunk in public. Id. at 531-37; id. at 541-44 (Black, J., concurring).  

Justice White provided the decisive fifth vote to affirm the conviction at issue. In his view, the plurality erred to the extent it believed that Robinson was categorically inapplicable to conduct. As Justice White explained, it makes little sense to read Robinson to “forbid[] criminal conviction for being sick with flu or epilepsy but permit[] punishment for running a fever or having a convulsion.” Id. at 548 (White, J., concurring in the result). As a result, he concluded that the Eighth Amendment may impose certain limits on the state’s ability to punish individuals for conduct that was “impossible” to avoid. Id. at 551. Justice White concurred in the judgment, however, because he did not believe that the defendant’s conduct in the case before him was “impossible” to avoid. Id. at 552.  

The four-member dissent would have reversed the conviction at issue. But it agreed with Justice White that criminal penalties could not be imposed on an individual for conduct that is impossible to avoid. 17 Powell, 392 U.S. at 567-68 (Fortas, J., dissenting). As petitioner acknowledges (at 17), therefore, the plurality’s contrary view did not command a majority of this Court. 

2. Petitioner inexplicably asserts that “[t]he Ninth Circuit’s decision cannot be reconciled with Robinson or the plurality or concurring opinions in Powell,” because it involves regulation of “conduct” not “status.” Pet. 16. But neither Robinson nor Powell remotely suggest that the Eighth Amendment is categorically inapplicable to laws that purport to criminalize “conduct.”  

While Robinson recognizes that status crimes violate the Eight Amendment, nothing in that opinion limits the scope of the Eight Amendment to such crimes. Nor did anything in Robinson purport to draw a bright-line distinction between crimes that penalize status and those that penalize innocent “conduct” that is an unavoidable by-product of a person’s status, such as “sitting, lying, or sleeping” while being homeless. Pet. App. 62a (citation omitted).  

This case underscores why. Pursuant to Robinson, the Constitution does not permit—and petitioner does not argue—that a city could make it a crime simply to be homeless. But a law that criminalizes sleeping outside the home when an individual has no alternative shelter available to him is no different—it merely adds a universal, unavoidable, and entirely innocent act to a “crime” that is otherwise defined purely by status. 

18 

Indeed, because a homeless individual cannot lawfully sleep on someone’s private property, a law that also criminalizes sleeping on public property when no alternative shelter is available is tantamount to making it a crime simply to sleep while being homeless. As Judge Wilkinson recently acknowledged, laws that seek “to punish persons merely for their need to eat or sleep, which are essential bodily functions,” offend “Robinson’s command that the state identify conduct in crafting its laws, rather than punish a person’s mere existence.” See infra at 24.  

6 That is in stark contrast to, for example, criminalizing actions—like drug use or downloading child pornography—that are neither innocent, nor “universal and unavoidable consequences of being human.”

Because five Justices in Powell would have held that an individual cannot be criminally punished for conduct that is impossible to avoid, that decision likewise supports the decision below. See, e.g., United States v. Jacobsen, 466 U.S. 109, 115-17 (1984) (relying on dissenting and concurring opinions constituting a majority to derive the rule in Walter v. United States, 447 U.S. 649 (1980)); Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 16-17 (1983) (holding that Will v. Calvert Fire Insurance Co., 437 U.S. 655 (1978), did not overrule the “Colorado River test” because Will’s four dissenting Justices agreed with the concurring opinion that the test remained in effect).

At an absolute minimum, however, one cannot reasonably maintain that either Robinson or Powell is “irreconcilable” with the Ninth Circuit’s decision. Pet. 12. Accordingly, there is no conflict with this Court’s precedent warranting the Court’s review.