Abstract
The U.S. Supreme Court’s recent Grants Pass v. Johnson decision sounded the death knell for Eighth Amendment protections for people experiencing homelessness. The decision not only overruled key Ninth Circuit decisions, but also severely cabined the Court’s own precedent, allowing cities across the country to jail and fine people for doing nothing other than surviving in public space when they have no reasonable alternative. The Eighth Amendment’s prohibition against cruel and unusual punishment is a powerful symbol of America’s aspiration to realize the dignity and humanity of all its people, especially those who are marginalized and vulnerable to systemic discrimination and abuses in the legal system. But Johnson denied any measure of this worth to unhoused people, obliterating this protection against the criminalization of homelessness. Justice Sotomayor’s dissent argued the majority decision “leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested.” Thus, Johnson sends a powerful, dehumanizing message that reverberates beyond the courts: it is neither cruel nor unusual to punish a person who is involuntarily homeless merely for being so. This Article surveys the contexts leading to the Johnson case, analyzes the decision itself, and assesses its impacts on the future of homelessness and homeless rights advocacy. Ultimately, it argues that punishing an unhoused person for the “unavoidable consequences of being human” is such a pinnacle of cruelty that no civilized society should pursue or accept it. Instead, American governments and the general public should embrace proven, nonpunitive solutions to homelessness. Meanwhile, advocates can engage many legal and organizing tools to bend the law away from cruelty and toward material justice.
Recommended Citation
Rankin, Sara K. and Riley, Laura
(2025)
"The Unavoidable Consequences of Homelessness,"
Utah Law Review: Vol. 2025:
No.
5, Article 3.
Available at:
https://dc.law.utah.edu/ulr/vol2025/iss5/3