The Supreme Court could make homelessness worse in America

More than 650,000 people in this country have nowhere to sleep. Since the end of pandemic-era financial support, homelessness has been on the rise in nearly every demographic group across the United States. Nearly one third of people suffering from housing insecurity are adults and children in families, and thirteen percent are veterans.  

Yet, our policymakers – from local government to Congress – have failed to make a meaningful difference in providing a pathway to shelter for our most vulnerable populations. Instead of investing in affordable housing, behavioral health services, and other community-based supports, some government leaders are relying on the same presumption that has failed to improve safety and well-being for decades: that incarceration is the solution. On Monday, that fight will go to the Supreme Court.

On April 22, the Court will hear oral arguments in City of Grants Pass v. Johnson, a widely watched case that will decide whether local governments can criminalize individuals living outside even when adequate shelter is not available. A lower court ruled that doing so was cruel and unusual punishment. Yet some local leaders – including those from San Francisco, Los Angeles, Portland, Phoenix and 22 states – decried the decision and argued that this ruling inhibits their ability to clear encampments and attend to the needs of these individuals.  

These are not easy issues and consensus solutions have yet to take hold nationwide. Yet we should be able to agree that punishing and incarcerating unhoused people will not address the root causes of the housing crisis or improve public safety – it’s simply a way (at best) to make homelessness less visible. Moreover, this approach may actually exacerbate the very problem these local leaders claim to want to address. We can’t arrest, incarcerate and punish our way out of this complex problem.

Criminalizing people who are unhoused can lead to a vicious cycle of involvement with the justice system. Arrests and incarceration inevitably result in further destabilization and lost access to essential community assistance programs such as food banks and outpatient drug or mental health services, as well as social security disability or EBT, which can take months to renew once lost. People experiencing homelessness may be assessed fines or fees, which they rarely have the means to pay, leading to further downward spirals into the criminal legal system. For all these reasons, studies have shown that contact with the justice system and even short terms of incarceration are criminogenic.

At a time when the police are solving crimes at record-low rates, it makes no sense to expend limited resources criminalizing people simply for sleeping in the only places available. In fact, these individuals are more likely to be the victims of crime than the perpetrators. Yet, when their very existence is criminalized, people who are unhoused are unlikely to trust the criminal legal system. Witnesses and victims are less likely to report serious crime, including in encampments, when facing the threat of investigation, arrest and confiscation of the few belongings or funds they have managed to save for themselves. 

Too often, the blame for these and other social problems is laid at the feet of prosecutors or law-enforcement leaders. Yet as a former federal prosecutor, a former police chief, and a former elected DA — all committed to smart, data-supported, alternatives to the carceral auto-pilot that has failed us in the past – we know that this blame game is misguided. Prosecutors and police chiefs cannot build affordable homes, provide funds for shelters, or offer therapeutic or social service supports. We need to be investing in social and community safety nets, not more prison or jail cells. And as long as we allow the criminal legal system to fill this space, other support systems will continue to hold back, remain inadequately resourced, and be let off the hook.

We need real solutions from local governments to help unhoused populations, especially our nation’s children who go to school hungry and cold from a night spent on a floor or the backseat of a car. Police and prosecutors are poor substitutes for social services, and more often than not, involvement in the criminal legal system turns difficult situations into dire ones. 

This critical case before the Supreme Court on Monday won’t solve the larger housing crisis in our nation. But it could certainly make matters worse. 

Punishment is not a solution to the housing crisis; it’s an escalation of it that makes us all less safe. We must demand better from our leaders.