When Sleeping Rough Is The Only Way

The Supreme Court may review a lawsuit that’s made cities change how they treat the homeless

- Esme E. Deprez And Noah Buhayar

The law can’t punish you for being homeless. But what about actions you must take because you’re homeless, such as sleeping on the street when shelters are full and there’s nowhere else to go?

The U.S. Court of Appeals for the 9th Circuit ruled last year that public camping bans when no reasonable alternative exists, are tantamount to criminalizing a person’s existential condition— referred to in legal terms as a person’s status— and therefore violate the Eighth Amendment’s prohibition against “cruel and unusual punishments.” The case, Martin v. City of Boise, was first brought a decade ago when attorneys representing six homeless people (including lead plaintiff Robert Martin) sued the Idaho capital in U.S. District Court. “Conduct at issue here is involuntary and inseparable from status—they are one and the same,” Judge Marsha Berzon wrote for the 9th Circuit, “given that human beings are biologically compelled to rest.” Boise has asked the U.S. Supreme Court to review and overturn the decision, and the justices could announce whether they’ll weigh in as soon as this month.

“Courts and legal scholars have been trying to disentangle conduct from status for years,” says Sara Rankin, who directs the Homeless Rights Advocacy Project at the Seattle University School of Law. A Supreme Court review of