When the Supreme Court hears the case of Grants Pass v. Johnson later this month, the justices will consider how far cities can go in policing homeless people. But just as the court swept away a half-century of precedent by overturning Roe v. Wade, the justices could use this case about homelessness to upend how we interpret four key words in the Bill of Rights — “cruel and unusual punishments.” Their decision could have ramifications across a wide swath of the criminal justice system, including prison conditions and the death penalty.
The case is about whether the city of Grants Pass, Oregon, violates the Constitution’s Eighth Amendment when it arrests, fines and even jails people without homes for sleeping outside. A lower federal court recently ruled that punishing people for doing something they cannot help is cruel and unusual punishment. “As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter,” the Ninth Circuit Court of Appeals wrote.
Grants Pass appealed the ruling up to the Supreme Court, which will hear oral arguments on April 22, positing that the courts have no business telling cities what behavior they can regulate. The Eighth Amendment, they say, applies to punishments levied after a crime, not laws that establish what is a crime in the first place, and besides, fines and jail time are hardly cruel or unusual.
At the heart of this debate are two very different ways of reading the Eighth Amendment.
First, there’s originalism. In recent sweeping decisions on abortion and guns, conservative justices have focused on what the Constitution’s language meant to the men who wrote it in the 1780s.
But other judges and scholars argue for a “living” Constitution, whose meaning should change as the world changes.
The Eighth Amendment barred “cruel and unusual punishments” at a time when the phrase referred to drawing and quartering or public dissection. More than a century and a half later, in 1958, the Supreme Court took the case of Albert Trop, who had been convicted of deserting the military while serving in Morocco during World War II — and was punished with the loss of his citizenship. The court ruled that the punishment was “cruel and unusual” and declared that the amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”
Since then, the Eighth Amendment’s prohibition on cruel and unusual punishment has become the bedrock upon which a generation of civil rights protections for prisoners and criminal defendants are built — few of which would have been recognizable to George Washington and Alexander Hamilton.
Using the evolving standards argument, federal courts have ruled on access to health care in prison, protection from excessive force and limits on the use of solitary confinement. They have prohibited the death penalty and mandatory life-without-parole sentences for people who are younger than 18 when they commit crimes, as well as executions of people with intellectual disabilities. The language has also served as the basis for decades of decisions requiring that juries consider people’s individual, often trauma-filled lives before deciding whether to send them to death row.
In the Grants Pass case, the Supreme Court could sweep away decades of decisions that limit how far states can go in punishing people who are politically unpopular in ways that past justices have said are unacceptable. In 2008, for example, the Supreme Court barred executions of people who sexually assault children, citing evolving standards. Now Florida has enacted just such a law, while Tennessee and Missouri are considering them — inviting the court to reverse course. Gov. Ron DeSantis’ office said at the time that he was “prepared to take this law all the way to the U.S. Supreme Court to overrule judicial precedents which have unjustly shielded child rapists from the death penalty and denied victims and their loved ones the opportunity to pursue ultimate justice against these most heinous criminals.”
More than 100 scholars and organizations have filed “friend of the court” briefs ahead of oral arguments in Grants Pass v. Johnson. Many argue the court should let these rulings stand and continue to look to contemporary standards when deciding what is cruel and unusual. In one brief on the other side, Republican attorneys general from 20 states urged the justices to throw out the evolving standards interpretation entirely. (Many of them also made similar arguments in a separate case, supporting Alabama’s request to execute a man with an intellectual disability.) Among their reasons are that it “has no discernible end point” and that it requires “judges to act as sociologists.”
The attorneys general argue that the evolving standards approach has paved the way for courts to get involved in too many subjects, including prisoners’ abilities to pursue gender-affirming surgery or people’s right to vote after they leave prison.
What would originalists like to see instead? At the extreme, an originalist could say the court should go back to debating the punishments of the 1700s, like whipping posts and guillotines.
John Stinneford, a law professor at the University of Florida who studies the original meaning of the Eighth Amendment, said that originalism need not be so limited, because in the 1700s the word “unusual” referred to punishments that were out of line with “long standing practice.” That interpretation, he said, could still allow for courts to rule against things like solitary confinement, which has gone in and out of use over history.
“If you're trying to figure out whether a given punishment is cruel and unusual, you have to ask how it compares to prior practice concerning punishment,” said Stinneford, who also wrote a brief in support of the town of Grants Pass. “If it's much harsher than we've traditionally done, then it can be called cruel and unusual.”
The court could choose a very narrow path in Grants Pass, ruling only on the city’s public camping ban and avoiding the broader issues here. It could still be an important ruling, given how many places across the United States are struggling with how to manage rising populations of unhoused people. Cities from San Francisco to Phoenix and beyond have raised controversy by clearing encampments and relying on law enforcement to manage homelessness, even as rents soar and shelter beds are limited.
But if the court issues a more sweeping ruling and abandons the evolving standards yardstick in Grants Pass, “that would eviscerate much protection for incarcerated people,” said Sharon Dolovich, a UCLA law professor who studies prison law and policy. “The central protection for the worst forms of prison conditions — the grossly inadequate medical care, the grossly inadequate mental health care, the excessive force, failure to protect from sexual or physical violence from other prisoners, all kinds of the worst pathologies of prison — are all governed by the Eighth Amendment,” she said.
Legal scholars say that the Supreme Court had been slowly moving away from talk of evolving standards in recent years, even before former President Donald Trump’s appointees began shifting the court to the right.
“The court is much more bold and wants to make a statement about originalism,” said Meghan J. Ryan, a Southern Methodist University law professor who published an article last year called “The Death of the Evolving Standards of Decency.” She pointed out that many originalists see the Eighth Amendment as the last vestige of the “living constitutionalism” they’ve been fighting for decades.
The court will likely issue an opinion in the Grants Pass case this summer. Even if the justices choose to rule narrowly on the issue of policing and homelessness, conservative lawyers are sure to look for more ways to end the era of “evolving standards of decency.”
“It now seems to be on the right-wing wishlist,” said Carol Steiker, a Harvard Law School professor who studies capital punishment, pointing to the impassioned opinion issued by Justice Antonin Scalia in 2015, the year before his death. In the case of Glossip v. Gross, the court upheld Oklahoma’s lethal injection protocol, and Scalia blasted the evolving standards approach as having “caused more mischief to our jurisprudence, to our federal system, and to our society than any other that comes to mind.”
