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Johnson v. Grants Pass: The Future of Criminalization of Homelessness in Texas and the Country

By: Sam Foss

On April 22, the Supreme Court heard the landmark Johnson v. Grants Pass case. This pivotal case has been deemed one of the most crucial cases concerning the rights of individuals experiencing homelessness in decades. Today, Texas Homeless Network explores the history of the case and its profound implications for Texas, analyzing how outcomes could reshape the legal landscape surrounding the criminalization of homelessness. As we explore the possible ramifications of this significant legal battle, we’ll uncover the critical need for systemic solutions to protect the rights and dignity of those experiencing homelessness.

Homeless rights activist holding a sign that reads "Housing Justice" outside of a rally outside of the U.S. Supreme Court fighting against the criminalization of homelessness. — Photo by Kevin Dietsch/Getty Images

Johnson v. Grants Pass Explained

The case started in the rural Oregon town of Grants Pass, which began fining people $295 for sleeping outdoors, coinciding with a rise in housing costs and the appearance of tents in public parks. This prompted a group of homeless people to initiate a class action lawsuit in 2018, arguing the law criminalized their state of homelessness. The case advanced to the San Francisco-based U.S. 9th Circuit Court of Appeals, which invalidated the law, citing that banning sleeping outside without alternative solutions such as shelter constitutes cruel and unusual punishment.

Following the two lower courts blocking the enforcement of this law, Grants Pass appealed to the Supreme Court for resolution, aiming to address their concern about the growth of public encampments. On April 22, the Supreme Court heard this pivotal case.

As homelessness continues to increase and resources are strained, the court’s decision will determine the legality of arresting or fining homeless individuals for sleeping outside when no adequate shelters are available. A decision will significantly impact laws and efforts to end homelessness nationally, including in Texas, and is anticipated by the end of June.

What We Know

We know that criminalization is not a solution to homelessness. Arrests, fines, jail time, and criminal records only hinder individuals experiencing homelessness from obtaining affordable housing, health services, and employment, all crucial for transitioning out of homelessness.

Should the Supreme Court rule in favor of allowing people to be criminalized for sleeping outside with no other options available, it could lead to a wasteful allocation of resources, further harm to individuals, and an exacerbation of racial disparities. Systemic racism in housing and other areas results in disproportionately high rates of homelessness among Black and Indigenous communities compared to white individuals, making them the most impacted by any measures of criminalization.

Disproportionate Impact

According to December data from the National Alliance to End Homelessness, Black Americans represent 37% of the homeless population and over 50% of homeless families with children, despite making up only 13% of the overall U.S. population. Historical systemic oppression, from slavery to segregation, has consistently denied African Americans and other minority groups, including Indigenous and Latinx people, rights and socioeconomic opportunities, contributing to current disparities in homelessness.

A Black person walking away from the camera in handcuffs being arrested by a police officer on a city street, showing the impact of criminalization of people existing on the streets. — SPENCER WEINER/LA TIMES VIA GETTY IMAGES

The National Homelessness Law Center indicates that policies criminalizing homelessness tend to disproportionately affect Black, Indigenous, disabled, and LGBTQIA+ individuals. Black individuals and other People of Color, including Native Americans, are more frequently stopped and arrested by police. In Austin, Texas, it was found that Black individuals experiencing homelessness were nearly 10 times more likely to be cited for camping compared to their White counterparts.

It is essential to understand that issues of racist and discriminatory practices in policing go beyond municipal police forces and encompass private security employed by businesses and Business Improvement Districts. These groups frequently use public funds to enforce policies that remove homeless individuals from public spaces. Together, these practices weave a complex fabric where racism, homelessness, and the criminal justice system are deeply interlinked.

Criminalization and Displacement Kills

An April 2023 study by the American Medical Association revealed that forcible removals from homeless encampments disrupt access to healthcare services and heighten the risk of drug overdose and death. This research illustrates the detrimental effects of homelessness criminalization on health, significantly shortening the lives of individuals experiencing poverty and homelessness, particularly African Americans and other People of Color, who are forced to live outside. The sweeps of these encampments amplify the trauma and suffering of unhoused individuals, leading to more hospital visits, overdoses, and fatalities.

Additionally, a study across 20 U.S. cities revealed a 77% increase in deaths among the homeless population in the five years concluding in 2020. Many of these premature deaths were due to preventable and treatable conditions, such as heart disease and diabetes. The aggressive displacement of individuals from their belongings, support networks, and resources, coupled with the criminalization of their existence in public spaces, exacerbates these issues. Such punitive measures contribute to ending lives, not ending homelessness.

Housing Solves Homelessness

We know that homelessness is a housing problem. The affordable housing crisis and the inability to afford housing are the primary causes of homelessness. In Texas, there are only 25 rental homes affordable and available for every 100 of the lowest-income renters, and someone working full time would need to earn $25.06 an hour to afford a modest two-bedroom apartment – well above the minimum wage. With nearly half of all low-income renters paying a third of their limited income to rent, it comes as no surprise that people lose housing not as a moral failing but as a direct result of insurmountable living costs. And despite the clear need for affordable housing, only one in four people eligible for housing assistance receive any help due to chronic underfunding by Congress.

This challenge is even more severe for those with criminal convictions, who are nearly 10 times more likely to experience homelessness than the general population. Criminalizing people for sleeping or resting outside does nothing to solve their homelessness but instead increases the likelihood that they will be unable to secure affordable, safe housing. According to a report by the Prison Policy Initiative, while 203 out of every 10,000 people previously incarcerated were homeless, this number nearly triples to 570 out of every 10,000 experiencing housing insecurity.

By increasing the risk of people developing criminal records for sleeping in public places, cities and states directly impact the probability that individuals will continue to remain homeless by creating a substantial barrier to housing.

The State of Criminalization in Texas and The Country

In 2021, Texas implemented a statewide prohibition on public camping, making it a class C misdemeanor for homeless individuals to sleep outdoors and subjecting them to fines of up to $500. Despite the enforcement of this law, the state did not introduce any enhanced services or shelter options for its homeless population. This approach has subsequently become a model for similar legislation in other states.

Across Texas, from major urban centers like Austin, San Antonio, and Houston to smaller cities such as Amarillo and Tyler, a myriad of local ordinances aggressively penalize survival behaviors of the homeless—ranging from fines and arrests to outright displacement and even prohibitions against panhandling or lingering too long in one place.

One of the most inhumane legislative measures threatens to pass in Kentucky, banning outdoor sleeping, slashing funding for housing and homelessness support, and introducing a chilling provision that would allow property owners to use deadly force to evict homeless individuals from their premises.

Possible Ruling Implications

This decision is poised to profoundly impact existing state laws and the vital, ongoing initiatives aimed at eradicating homelessness both in Texas and nationwide.

If the court upholds the current decision, cities and states’ public camping bans targeting homeless people may be unenforceable.

As advocates for those experiencing homelessness, we fervently hope for a verdict that safeguards the civil rights of the homeless. Should the Supreme Court affirm the U.S. 9th Circuit Court of Appeals’ decision, it will be a significant statement that penalizing individuals for sleeping or resting outdoors—when no alternatives exist—is an act of cruel and unusual punishment.

In Texas, such a ruling could challenge and potentially overturn the statewide ban on encampments and various local ordinances, deeming them unconstitutional if it is proven that those living outdoors are doing so involuntarily due to a lack of resources. According to HUD’s 2023 Annual Homeless Assessment Report, on any given night in Texas, one in every two people sleeping outside lack access to an emergency shelter bed. Moreover, shelters are often sparse and located in areas—both rural and urban—that are under-resourced, making accessibility a further challenge. This decision could affirm that we need more available resources so that people are not forced to sleep outdoors.

If the Court rules otherwise, there may be dire consequences for those experiencing homelessness.

If the Supreme Court strikes down the decision of the U.S. 9th Circuit Court of Appeals or rules that such laws are within the purview of local and state governments and not federal judge(s), it could pave the way for states and cities to legally penalize individuals for sleeping or resting outdoors when no other options are available. Such a ruling would likely exacerbate already grave consequences, including greater barriers to housing, worsening health outcomes, increased mortality, and heightened disparities. Over the long term, the criminalization of homelessness will disproportionately harm Black individuals and People of Color, drastically reducing their chances of finding affordable, safe housing.

The ruling of this case may subject more people to harm without addressing the underlying problem of homelessness, punishing the most marginalized with no real solutions in sight.

The Future We Want

Homelessness in Texas and throughout the U.S. must be recognized for what it is—a dire humanitarian crisis that continues to claim the lives of countless unsheltered individuals each year. This escalating crisis calls for urgent action from service providers, faith groups, civic organizations, and every tier of government.

We already know the effective measures needed to end homelessness: ensuring individuals have immediate access to stable, affordable, and supportive housing and optional supportive services. Instead of increasing the criminalization of homelessness nationwide, Congress must take a decisive role by investing in comprehensive, long-term solutions. This effort should include extending rental assistance, preserving and expanding affordable and supportive housing for those with the lowest incomes, offering emergency rental assistance, strengthening federal protections for renters, and enhancing services to swiftly rehouse individuals when they lose their homes. Moreover, Congress needs to broaden access to healthcare, including mental health and substance abuse services, and ensure that those working on the front lines are compensated with a living and fair wage.

All levels of government should invest in solutions that:

Prevent Homelessness

Expand access to affordable housing subsidies & rental assistance

One of the primary objectives in preventing homelessness is to allocate resources strategically to those most vulnerable to losing their homes. Ideally, housing initiatives should offer timely support to keep at-risk families from ever enduring the trauma of homelessness. To forge a future where no one is forced to sleep on the streets, we must establish robust safety nets and accessible options for those most likely to experience homelessness.

Rental assistance programs are vital tools for keeping people securely housed. In 2021, Texas introduced its first statewide rental and utility assistance program, aiding low- and moderate-income renters throughout the pandemic. By December 2023, nearly 98,746 households benefited from this support. Those included 39,328 households provided with eviction prevention and other housing stability-related legal services like representation in eviction court, legal counsel, and mediation services along with 32,941 households that received legal counsel to prevent eviction and address fair housing violations.

The impact of emergency rental assistance is profound, offering proven, significant, immediate benefits for housing security, financial stability, and mental health. While such programs continue in many states, funding is waning as the focus shifts away from the pandemic. We must maintain emergency rental assistance as a critical social safety net for the most economically vulnerable as a key strategy in preventing homelessness.

Paired with emergency assistance, federally subsidized housing vouchers provide opportunities for stable housing for extremely low-income renters throughout the country. Subsidies such as the Housing Choice Vouchers (“HCVs”), offer a lifeline for extremely low-income renters, enabling them to secure stable housing and escape homelessness. A clear example of its effectiveness is the marked decrease in Veteran homelessness following the integration of federal housing support with services through programs like HUD-VASH, which combines housing assistance with supportive services in a housing-first approach.

The federal government must also continue fully allocating the National Housing Trust Fund (“NHTF”) to all states, including Texas. The NHTF is a HUD-administered block grant to states, designed to increase the amount of affordable housing stock to extremely low-income households, focusing specifically on financing projects for individuals experiencing homelessness, people with disabilities, the elderly, and other groups with special needs.

Beyond federal initiatives, local and state governments should explore diverse funding mechanisms to expand affordable housing options, such as taxes, bonds, and partnerships with corporations and foundations, as well as leveraging surplus government property. Moreover, governments should explore possible housing solutions like Accessory Dwelling Units, Tiny Home Communities, and Community Land Trusts to tackle the challenges of housing affordability and availability head-on.

Expand access to affordable housing opportunities

Housing is not just a solution to homelessness; it is the solution. The Housing First approach is founded on the powerful principle that providing individuals with immediate access to their own housing—free from barriers and without mandatory service requirements—is the most effective way to end their homelessness permanently.

Permanent Supportive Housing (“PSH”) is a transformative housing model that has demonstrated significant success in resolving homelessness. PSH merges affordable housing assistance with optional support services tailored to the needs of its residents, empowering them to live independently. Impressively, across the nation, PSH boasts housing retention rates of up to 96%. This means that once individuals are housed through PSH, they overwhelmingly remain housed, securing a stable and sustained pathway out of homelessness.

Protection those who are housed

In today’s precarious economy, the vast majority of low-income renters are just one financial setback away from homelessness. With 78% of Americans living paycheck to paycheck, personal safety nets are often nonexistent when even a small crisis strikes an individual’s life. One flat tire can mean a week of work missed, leading to a lost job, getting behind on rent, and quickly being evicted.

Even diligent renters in Texas who consistently meet their payment deadlines and adhere to their rental agreements can face eviction from privately owned housing once their lease expires—no justification or “just cause” required.

Consider for a moment: A low-income mom working two jobs to make ends meet may be given as little as 30 days’ notice to vacate as her lease expires. Such no-cause evictions are especially harsh in tight, costly rental markets like those in major Texas cities, where profit-motivated landlords may pursue evicting long-standing tenants with new ones able to pay higher rents. She will be stuck searching frantically for affordable housing while working 80 hours, caring for a kid, and paying for moving costs. In these circumstances, even the most determined person sometimes becomes homeless.

To combat these injustices, states and municipalities can implement “just cause” eviction laws, which restrict the grounds on which legal evictions can occur, creating more protections for renters.

Moreover, “just cause” eviction protections are most effective when coupled with rent stabilization measures that shield renters by capping annual rent increases at a reasonable rate. Currently, Oregon stands alone in enacting statewide rent control, which limits rental hikes to 7% plus inflation, translating to a maximum increase of about 10% in 2024. Instituting such policies provides a crucial defense against the scourge of ‘economic eviction’—where landlords economically coerce tenants out by imposing unaffordable rent increases.

Respond Compassionately to Homelessness

Use a Housing First model

A Housing First approach is backed by decades of research, extensive learning, and robust bipartisan backing, and it has been credited with reducing Veteran homelessness by 50% since 2010 across the country and by 60% in Texas.

Instead of criminalizing the unhoused, policymakers at all levels of government must use every tool at their disposal to tackle the affordable housing crisis that drives homelessness. By prioritizing policies that facilitate the transition of unhoused individuals into stable, affordable homes, we can create lasting change and dramatically reduce homelessness.

Increase funding for homeless crisis response systems

While emergency shelters are not the ultimate solution to homelessness, they serve as a crucial immediate response to fulfill a basic need of shelter until permanent housing solutions can be secured. Investing in emergency shelters that adhere to best practices for low-barrier entry is vital for enhancing the spectrum of homeless services a city offers.

Governments must continue to increase funding for homeless crisis response systems to both prevent and effectively address unsheltered homelessness in our communities. According to a recent report by the National Alliance to End Homelessness, when communities received new funding, they allocated 69 percent of these resources to housing and supportive services that assist in maintaining housing, such as case management. The bulk of the remaining funds were directed towards street outreach and other supports that aid individuals while they remain homeless. This strategic, coordinated approach delivers real solutions to those sleeping in public spaces, like those in Grants Pass, and focuses on support rather than criminalization.

Remove punitive approaches

Cities that use the criminal justice system to push homeless individuals from their jurisdictions can trigger a detrimental “race to the bottom.” In this race, cities render their environments so hostile to unhoused individuals that they are forced to move elsewhere. State governments must prevent this by enacting laws that prohibit cities from penalizing the homeless for engaging in survival activities in public spaces, such as sleeping.

hat are commonly referred to as “camps,” which house all their belongings. As a result of criminalization measures, authorities carry out expensive, destructive seizures of property called “sweeps.” These actions not only misuse resources but also have severe long-term mental and physical health repercussions for our unsheltered neighbors.

When individuals experiencing homelessness sleep outdoors, they often establish w

Rather than perpetuating these harmful practices, cities should redirect the funds used for sweeps toward constructive solutions. This could include providing secure storage for personal belongings, ensuring access to toilets and trash services near campsites to improve health outcomes, offering laundry services, and implementing community outreach programs that meet people where they are located until permanent housing becomes available.

The Reality of Now

To understand the broad scope of emergency threats that could escalate following the Johnson v. Grants Pass case, we urge you to explore the criminalization tracker available online. This tool sheds light on the harsh realities faced by those experiencing homelessness under current legislative environments.

Texans facing homelessness today are confronted with seemingly insurmountable hardships. The simple act of seeking rest at night outdoors subjects them to the cruel criminalization of their basic human need for sleep, compounded by the ongoing dangers of being homeless.

As we sit collectively with this knowledge, it is crucial that we unite to champion the future we envision. Regardless of whether the criminalization persists, we must forge ahead now with solutions that ensure a brighter, more just future for all Texans—one that offers responsive and compassionate support during housing crises and experiences of homelessness.

As we anticipate the Supreme Court’s ruling, our commitment must be to pursue real solutions to end homelessness—not through punitive measures, but through proactive, supportive actions. We must stand firm in the shared belief that everyone deserves a safe, affordable place to call home.

Johnson v. Grants Pass: The Future of Criminalization of Homelessness in Texas and the Country

Johnson v. Grants Pass Explained