THE IRRATIONALITY OF PUNISHING HOMELESSNESS

Authors

Nice, Julie A.

Abstract

The Supreme Court upheld the criminalization of public survival by unhoused people in City of Grants Pass v. Johnson in June 2024. This article examines that decision and considers why Grants Pass had not enforced its camping ban against unhoused people when the author visited the city one year later. One important reason is that Oregon had enacted legislation requiring that any camping bans in the state be objectively reasonable considering the totality of circumstances, including the impact on unhoused persons. Given the ongoing lack of shelter in Grants Pass after the Supreme Court’s ruling, the city’s unhoused residents obtained a new state court injunction against the city’s camping ban based on the recent state law. While enforcement of a camping ban when unhoused residents have nowhere else to go may not be cruel and unusual punishment (according to the Supreme Court), it is still not objectively reasonable in the totality of current circumstances. Considering the actions of Grants Pass in historical and contemporary context, this article argues that the city’s overt discrimination against unhoused persons requires an Equal Protection analysis. It examines the relevant rationality review cases leading up to the notorious “no scrutiny whatsoever” of Dandridge v. Williams, which remains tainted by the “economic whip” justification behind the state’s stringent cap on welfare benefits. This article argues, nonetheless, that a close look at the relevant rationality review canon—from 1911 to 2025—reveals that the Court’s various iterations of rationality review consistently require an actual, factual, contextual, and practical review of the purported relation between the government’s means and its ends to ensure that the action is in fact supported by plausible reasons. Given the repeated public statements by city councilors of Grants Pass that they aim to banish unhoused residents, and the overwhelming evidence showing that criminalization is ineffective (because it tends to increase homelessness), harmful (because it prolongs the suffering of unhoused persons), and more expensive than the more effective alternative of providing housing, this article concludes that believing criminalization will solve homelessness is simply beyond rational belief.

Recommended Citation

Nice, Julie A., THE IRRATIONALITY OF PUNISHING HOMELESSNESS, 66 Santa Clara L. Rev. 1 (2026).
Available at: https://digitalcommons.law.scu.edu/lawreview/vol66/iss1/1