Person walks along a creek
Homeless residents walk through an encampment near the Guadalupe River in San Jose. Photo by Joyce Chu.

Vagrancy laws have been around since the founding of our country.

A set of unclear and often confounding principles, these punitive measures have taken a variety of forms over the years to essentially criminalize the basic condition of being poor and having nowhere to go. The ordinances have been weaponized to target laborers and activists alike, and for much of the 20th century, when times were the worst, the penalties were the harshest, sending so many people — and disproportionately those of color — to jail each year for egregious crimes such as walking at night, sitting on a park bench, or just not looking like you belonged on a certain street.

Fortunately in 1972, as part of a concerted effort by a group of leaders in the civil rights movement, the U.S. Supreme Court struck down a Florida vagrancy law because of its vagueness and condemnation of innocent behavior. This ruling had ripple effects throughout the nation, forcing the revision and even elimination of similar statutes in states throughout the country. It was a victory not so much for what it did to improve the conditions of homelessness and poverty, but for the protections it provided for people to avoid further stigmatization and unjust harm.

But with a slew of socio-economic crises ensuing over the coming decades, hundreds of thousands of people ended up on the streets. And with the public safety net unable to respond with adequate shelter, housing, and services needed to truly help address homelessness, local governments under severe pressure from businesses and neighborhoods began taking increasingly more severe measures to keep folks from sleeping on the sidewalks, in the parks, and along the creeks. Anti-camping bans and RV prohibitions became the soup du jour for many jurisdictions, and now while people could linger in public spaces thanks to previous court rulings, inhabiting a place for any extended period of time was still strictly forbidden.

Then, there was a brief but fleeting glimmer of hope for the rights of the unhoused.

In a 2018 case — Martin v. Boise — the Ninth Circuit court held that the Cruel and Unusual Punishments Clause prevents cities from enforcing criminal restrictions on public camping unless the person had “access to adequate temporary shelter.” This was the first time in constitutional history that the state of being homeless was recognized as a protected class, and set forth a mandate that enforcement must be paired with real solutions to the underlying issues. While no federal funding was designated to support this new requirement, in the few short years that followed many localities began to focus more on a range of non-criminal alternatives to address homelessness in their communities.

Then, just a couple of weeks ago, this framework all came crashing down. For the first time in decades, the Supreme Court decided to hear a case on homelessness, Grants Pass v. Johnson, and ruled in a 6-3 decision that the city’s enforcement of its public camping laws did not, in fact, violate the Eighth Amendment, reversing the Ninth Circuit’s precedent. With this ruling, cities now have the ability to enforce whatever laws they choose to maintain public spaces, and homeless people lost their constitutional protection for the necessary act of sleep.

We already know that this court decision won’t do a thing to improve the conditions for the  650,000 people currently living without a home in the United States. Nor will it help with an affordability crisis that has left nearly half of all American renters unable to pay their rent. What it will do, however, is add pressure to an already volatile situation. It will create more fear and shame for families trying to survive. And it will only incentivize criminalization and enforcement measures that have never helped to address homelessness anywhere.

That’s why it will be so critical for our local elected leaders to stand up to this decision and push back. We know what housing and prevention services are effective at keeping people off the streets. We’ve seen it work locally and if we’re willing to take those efforts to scale, the conditions of all residents will continue to improve.

The Supreme Court opened a door that could lead us once again down a dark path to another dead end. It’s up to us to make sure we don’t take it.

San José Spotlight columnist Ray Bramson is the Chief Operating Officer at Destination: Home, a nonprofit that works to end homelessness in Silicon Valley. His columns appear every second Monday of the month. Contact Ray at [email protected] or follow @rbramson on X, formerly known as Twitter. 

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