How Do You Solve a Problem Like Homelessness?

Here is a basic American idea.

If something is illegal, it has to be equally illegal for everyone.

So, sleeping.

Can you arrest someone for sleeping in a public space?

Meaning, could city officials agree to arrest people who fall asleep in public

as long as they say the law applies to everyone equally in the spirit of fairness? That's one important thing that the Supreme Court is trying to figure out this summer. And the police officers testified that that means that if a stargazer wants to take a blanket or a sleeping bag out at night to watch the stars and fall asleep, you don't arrest them.
You don't arrest babies who have blankets over them. You don't arrest people who are sleeping on the beach, as I tend to do if I've been there a while.
You only arrest people who don't have a second home. Is that correct? Who don't have a home.
So no, these laws are generally applicable. They apply to everyone.
Yeah, that's what you want to say. Give me one example.
This is Radio Atlantic. I'm Hannah Rosen.
And today, we're talking about one of the most important cases for the rights of the unhoused in a long time. We'll hear arguments first this morning in case 23175, City of Grants Pass v.
Johnson. Ms.
Evangelist? Mr. Chief Justice, and may it please the court.
Like cities nationwide, Grants Pass... In Grants Pass v.
Johnson, the Supreme Court will rule later this summer on whether someone can be fined, jailed, or ticketed for sleeping or camping in a public space when they're homeless. Are they being punished because they're sleeping? The action? Or are they being punished because they're homeless? And should cities be free to make these decisions for themselves? Municipalities have competing priorities.
I mean, what if there are lead pipes in the water? Do you build the homeless shelter or do you take care of the lead pipes? What if there isn't enough fire protection? Which one do you prioritize? Why would you think that these nine people are the best people to judge and weigh those policy judgments?

So, in a way, Grant's past shines a big, bright spotlight on the real issue, which is that many city governments have made a series of decisions about housing over the last few decades that have resulted in a growing number of people who have nowhere to sleep. We've put a lot of power into the hands of local governments to decide who can and can't be somewhere and what kinds of people can and can exist in different places.
This is Atlantic writer Jerusalem Dempsis. She thinks a lot about what's behind our policy dilemmas.
Housing is one of her obsessions. She also hosts the Atlantic's new policy podcast, Good on Paper.
And so this kind of exclusion functions in so many different invisible ways. There are all these invisible jurisdictional lines that are affecting behavior like, what school was allowed to be billed where like 20 years ago? And thus, when your parents were looking for a place to live near a school, they generally kind of were attracted to a certain set of neighborhoods.
Like, we think of these as like free choices, but they're actually the choices that are handed down to us by government policy from decades ago. And when it comes to housing, these series of choices have created impossible situations.
City governments have an interest in keeping the order. Local citizens need somewhere to sleep.
These competing interests have been battling it out in a string of important court cases, like Martin v. Boise.
In that case, six homeless people sued Boise, Idaho, because of an anti-camping ordinance. And they claimed that their constitutional rights were being violated because they were being told that they couldn't sleep in public, but there was nowhere for them to sleep.
There were not housing shelters or things at capacity available for them. And so they said this is a violation of their civil rights.
And the Ninth Circuit agreed with them. And since then, the Ninth Circuit, of course, it just covers a handful of states, but really big ones that are at concern here, like California, for instance, which has the largest homeless population in the country.
But of course, other courts also pay attention and cite Martin v. Boise as well.
So this has become important to the whole country, even though this was just a Ninth Circuit case. So this has come before the Supreme Court before, and they have declined to listen to it.
But this time in Grant's past v. Johnson, they had oral argument.
And what's at stake here is basically what kinds of things constitute cruel and unusual punishment. And already, there's already kind of like a leeway given to local governments to have like, you know, reasonable time restrictions and place restrictions on public land for where people can camp.
But if the Supreme Court overturns Martin v. Boise and rules against the homeless individuals at play here, then basically what could happen is you could see a whole new raft of criminalization policies, of encampment sweeps, without any concern for whether or not those people can actually go somewhere to sleep at night.
Okay, so on one side, on the unhoused side, it's really clear what the interests are there. They're very basic.
They're like, I have no place to go and there isn't capacity in any shelter and you are criminalizing just like a basic life function of mine. What is the city's interest? Like what's Grants Pass or any of these cities? What's at stake on their side of things? Yeah, for Grants Pass.
So Grants Pass Oregon is, you know, Oregon,, from people outside of Oregon, kind of think of it as like a liberal state. But this is a pretty conservative county.
The city of Grants Pass is a county seat, but it's, you know, you have some like liberal homeowners, but you also have like a lot of like clear conservatives, things like that. I mean, Oregon's a very idiosyncratic place.
So just setting that context, the entirety of the kind of push towards criminalization begins because in around 2013, they have this roundtable where they're trying to discuss how to get rid of vagrants or the problem of vagrancy. And so they begin really heavily ticketing, penalizing, fining people to get them out.

And the problem, of course, in Grants Pass is there's basically one real shelter in Grants Pass.

And it's what local journalists have referred to as kind of like a high barrier shelter. And what that means is that they have requirements on someone to come in.
You have requirements about attending daily Christian services. They have requirements around, you know, not using nicotine.
They have requirements around not using any substances. They have prohibitions around interacting with the opposite sex.
They have prohibitions around trans people or identifying as the opposite gender or wearing clothes that identifies the opposite gender. So, you know, there's tons of restrictions.
And that's like a place where, you know, homeless research has been really clear that if you make it really, really hard for people, like it obviously raises the stakes for them. And if you're an individual who doesn't think that you're, like, forever homeless, you think that you're just kind of, like, trying to figure it out right then, which is most people who are homeless, they don't expect to be homeless for decades, then it's like, oh, I'm not going to just stop speaking to my wife or, like, my girlfriend.
I'm not going to just separate from my dog. I'm not going to, like, cold turkey nicotine, which is a very hard thing to do, you know.
So it's a lot of things that, I mean, make it really difficult in Grants Pass. Right.
Okay. Just to stick with the city's position for a minute, it sounds like from what you're describing, it's somewhere between like aesthetic and safety.
I think it's public order. There's real concerns about, you know, the parks themselves are public parks.
It's not just for homeless folks. It's for everyone who's in Oregon or anyone wants to come to Oregon.
They're public parks. You know, so it is, I think there are legitimate concerns about public order and safety that are on the city's part.
Right, right. Okay, and then the other thing that comes into this case is the Eighth Amendment, which was surprising to me.
That's the prohibition against cruel and unusual punishment. I personally have never thought of it as being used in this particular way.
Like, I think of it as having to do with sentencing or pre-sentencing. Why that? Like, why does that come up in all the cases? So, there's, like, decades-old precedent that established that it was cruel and unusual to punish someone because of their status.
Basically, like if it's like you can punish behavior,

like there's something that you do,

but if it's like something that you are,

you can't just punish that existence.

And so homeless folks in the Martin v. Boise ruling

and in that case,

they were trying to prove that homelessness itself

was a status that you couldn't just criminalize.

And so what was happening is that

you have to criminalize specific behavior.

And so what's interesting is in the oral arguments we heard, you have- In the Grant's Pass case. In the Grant's Pass case, yes.
You have these questions around, well, are you criminalizing everyone who's sleeping, right? Because if you're not, then you're criminalizing someone's status. And, you know, the respondents from Grant's Pass that really struggle with this question.
It's very important that it applies to everyone. Yeah, I got that.
But it's a single person with a blanket. You don't have to have a tent.
You don't have to have a camp. It's a single person with a blanket.
And sleeping in conduct is considered, excuse me, sleeping in public is considered conduct. And this court in Clark discussed that, that that is conduct.
Also, the federal regulations are very... sleeping is a biological necessity.
It's sort of like breathing. I mean, you could say breathing is conduct, too.
But presumably, you would not think that it's okay to criminalize breathing in public. I would like to point to the federal regulations...
And for a homeless person who has no place to go, sleeping in public is kind of like breathing in public. Well, two points.
So first,

even the federal regulation... So for the cruel and unusual part, it's just sort of like

sleeping is sort of like a necessity. It's not just a thing where you can just make yourself

not sleep, you know? Right, right, right. So...
Okay, so the core issue for each side is on the

homeless side, are you essentially... Forgetting about the policy for a minute.
The core issue is,

are you essentially criminalizing a state of being, a state of being? And then for the city, it's the city's right to decide how it wants to create public order and police in the city. And to be clear, it's not just that the folks on grants pass or on the side of the homeless advocates in this sense are saying, like, the city should not be able to move people out of public spaces.
They're saying, like, you have to provide them an alternative. Like, if you're going to say you can't be here and then they go, where should we go? You have to have an answer to that question.
But, you know, to bolster a little bit of the case on the side of the city, I think it's important to also note that, you know, for instance, you could be starving to death and it's still illegal to steal, right? It's illegal to steal bread or something like that. I mean, we've all seen limits.
So that's not allowed. But at the same time, the distinction that's being made here is you don't criminalize starvation.
You criminalize the stealing of bread versus are you just criminalizing homelessness in this case? Or are you criminalizing sleeping in this place at a specific time? Are you providing reasonable restrictions? Yeah. This does sound a lot like a lot of other dilemmas that cities are facing now.
A lot of other dilemmas around social services versus public order. Like that seems to be a kind of central conundrum that liberal urban places don't quite know how to solve right now.
And not just liberal. I mean, Grants Pass is not a liberal place.
I think this is a problem that has existed for a while. And I think that in some ways, it's a real tension.
And sometimes there's a tension between, you know, how do you provide for order while allowing people to do, you know, be free and do what they want to do. And in some ways, it's like not a real tension.
Like with the homelessness, I think that's why I'm so interested in it. And I'm just like, there's actually a solution to the crisis.
You could just provide housing that is sufficient for the people who need it, and then you would not have homelessness. But, you know, I think people forget because we're so in it now, but like mass encampments were not normal for most of American history.
I mean, the modern encampments and modern tent homelessness began in like the 1980s.

And so to me, it's just like, yes, of course, like now there is this tension, but it's come

after decades of terrible policy.

After the break, we get into that policy.

And also, what happens if the Supreme Court rules in favor of the city?

Okay, so what has happened over the last few decades?

Both the numbers of homelessness, demographics, kind of what's been the changing picture?

Do you want to start in the 80s? Is that the right place to start? So, I mean, homelessness has skyrocketed since the 80s. Half a million people roughly are homeless on a given night when they do the point-in-time count to figure out how many people are homeless in America.
What is the point-in-time count? Yeah, so it's a very difficult thing. Like, how do you figure out how many homeless people there are? Like, it's not like you can just do a simple, like, survey to figure that out.
Right, and nobody's, like, checking on the census. I'm homeless now.
So what they do is, by the end of January, basically, every single continuum of care, which is just the jurisdiction that they reference. Sometimes it's counties, sometimes it's cities, whatever.
So every single jurisdiction has to count up their homeless. And by that, I mean, literally, they need to go around and count people up.
You know, there's a lot of problems with it, but that's kind of the count we have. So homelessness has been really on the rise, and it's really tracked alongside the rising unaffordability of housing.
And that has been really the core cause of rising homelessness. So is it evenly distributed? Or is it mostly West Coast? Like over the last, since the 80s, what else has changed besides just total numbers? So, yes, you see it concentrated in places where you see housing costs.
So you see it concentrated in places like Los Angeles, like New York, like Boston, like D.C., San Francisco, like Seattle. Like these are the places where you see homeless encampments on the rise.
And I think there's also distinctions in like the types of homelessness. So in places like New York, famously has a right to shelter.
And on the East Coast, because of the blisteringly cold temperatures, there's a lot more incentive, both humanitarian and just because of like, I mean, you don't want a bunch of people dying in your city to provide a lot more shelter capacity. And so East Coast shelter tend to have a lot more shelters.
And so it's often less visible than on the West Coast where there's less of that concern that people are going to die outside. And so the visibility of the homelessness is much larger in places like Los Angeles, for instance.
Yeah. I was just in Seattle and I had forgotten about the particular nature of West Coast homelessness.
I mean, like Seattle, Portland, there are places where there are just huge populations, downtown, you know, especially at this time of year. And it's just like an accepted part of the city infrastructure.
That's true in East Coast cities too, but in a different way and a little more recently and a little more season dependent. So, yeah, so I was reminded of that.

Now, is it that obvious and well accepted that rising housing costs and homelessness have moved in tandem? Like, is that a universally accepted principle? I don't think there's anything universally accepted anymore, but as universally accepted as you can get, yes. I mean, and I think that this is something that is requires kind of taking a step back to talk about what we mean by something causing something else, right? So like people are saying things like, oh, so-and-so is homeless because they were addicted to drugs and then they lost their job and then they couldn't make their rent and now they're living on the street.
They're not wrong that that story happened, right? So there are individual vulnerabilities that make someone more likely to become homeless. But when you reduce the supply of affordable housing to the extent that we have, we have guaranteed basically that someone will be homeless.
Who becomes homeless is like a question of vulnerability, right? People who are less well-off, people who have mental health issues, people who are addicted to drugs, people who are more likely to lose their jobs or who are volatile in some way. So they're going to get in arguments with their family members or with roommates.
So they're going to end up on the street. Like, that's all true.
Those things are a part of the story of how they become homeless. But that was all of those things happened before 1980.
And yet we didn't see those people become homeless. They still had mental health issues.
There were still drug addiction issues. There were still epidemics of different kinds of drugs.
And yet people were experiencing those things and they were housed. And why that is, is because there was just a lot more availability of really, really cheap housing stock.
You can have high poverty even, like Detroit, Philadelphia. These are places with high poverty.
They do not experience the level of homelessness that you see in places like Boston or D.C. or San Francisco.
So I think that that's kind of really trying to figure out causally from a policymaker standpoint. What could I do as a policymaker to reduce the level of homelessness? You could have low poverty.
San Francisco, very low poverty place. You can't reduce it by that much more.
And yet you still see high rates of homelessness. And so to me, the lever that policymakers are willing to focus on is increasing supply of affordable housing as much as possible.

Right. So for you, there are two things that are obvious.

One is that the causes of homelessness are a particular interaction

between personal qualities and structural realities in a city.

And the second is, if you do look at the interaction of those two things, what you end up with is lack of affordable housing. Okay, let's wind back around to our central question.
So we have this grants pass case, which is the city versus the rights of the homeless people. From the logic that we've talked about, Deborah Blake, who's the original complainant, saying she has no place to go, from the way you've described things, she's probably right.
Like, she's probably correct. That would be a common problem.
And yet, from all accounts of Supreme Court oral arguments, they seem to be tipping towards Grant's passes side, right? Is that right? Yeah. I mean, external observers think that on net it's likely that they, I mean, it's also possible that they choose not to, they resolve on a question that is completely like kind of below.
So often the Supreme Court will like to just like resolve on this lowest available question that doesn't require them to actually engage with some of these bigger, bigger issues. And so they could do that and like kick it back down.
And, you know, even right now, cities are clearing encampments too. So like, whether the policy reality looks very, very different is really unclear if the Supreme Court doesn't rule.
But yeah, I mean, the Supreme Court does not look favorable for the homeless plaintiffs. Okay.
So let's say the Supreme Court does rule in favor of grants passed desire to be able to maintain jurisdiction and control over the homeless population. How do you read that decision? Is that just avoidance of the bigger problem? Does it cause its own set of problems? Where does that leave us? I think that, I mean, we've kind of danced around this a lot in this conversation, but there's almost two different policy issues at play here.
There is, do we want to see fewer people homeless? And then there is, do we want our communities to feel better? Because for everyone, it just feels bad to see people living in that way. That's just really striking.
It makes people not want to go towards those areas. You see decreased engagement with the businesses.
And so to me, it keeps the conversation in this place of the problem is order. And the reason I dislike that is because you actually can't solve it in that space.
If you keep it focused on order, you just end up moving homeless people around. Maybe you move them to jail.
You know, maybe you move them to, you know, another city. Maybe you are able to incentivize more of them to live in cars and be better at evading if they're able to get there.
And some people might count that as a win if you just end up not having to see these encampments everywhere. But to me, that's a lot, a lot, a lot of money, a lot of public money spent on not solving a problem.
So you've neither solved the homelessness problem, nor have you solved the problem you wanted to solve and narrowly focus on, which is the order problem. Yes, because to me, it's like the idea that, you know, I mean, California's governor even has submitted an amicus brief in favor of the grants pass in this case.
And he's someone who, you know, it's a liberal state where they focus on this issue. I mean, there are a bunch of liberal city leaders who have also said they want more power in order to clear encampments.
These are places that have devoted tons of money and energy and time to solving the problem. And I want to be very clear here that even the, like, most of the people who are even, I think, counterproductive in solving the homelessness problem are devoting tons of energy and time and money towards a variety of different types of solutions.
And so to me, it's not that they don't care about this, but I think it just keeps us, like, if the Supreme Court decides this, it's just going to keep us again in this spiral of talking about and dealing with this problem as a function of encampments, as a function of order, as a function of policing, and of putting people in jail. And I just worry that we just end up stuck there and we don't actually try to solve the problem disorder.
Right. So if the Supreme Court does, as expected, side with grants pass, either nothing changes or you get more license to criminalize, in which case nothing changes.
Is there a universe where the emptiness of that decision leads to something positive? I think a lot of states have started to realize the futility of their own housing policy and of allowing local governments to continue on in the way they have for the past few decades. You see energy in most recently in Colorado, in Montana, in California, in a lot of places around the country, in Texas, you know, and these are places where people have said, okay, the housing crisis has gotten so bad.
We cannot continue the status quo. We're going to make it much easier to build all types of housing.

And that has happened, I think, adjacent with the rise in homelessness. It has happened adjacent with the run-up in home prices and rent unaffordability.
And that has really spurred

action. I think people were really shocked to see in 2020 that this crisis, which a lot of people

had thought, all right, well, that's just because of those crazy Californians and those New Yorkers

and those Bostonians. That's their problem.
That's not our problem. And it moved.
It spread to the rest of the country as the housing unaffordability crisis spread. So too did the homelessness crisis.
And that really spurred policymakers to take action. And so I have some serious concerns about what's going to happen in the future.
But I do see some shining lights of optimism in that state governments have taken on an extremely difficult political issue and been able to find some level of solutions here. Now, you know, the track record of places staying on course on a policy path when you don't see results immediately is not the greatest.
But, you know, I'm always cautious. You're trying to get me to end on a positive note.
I'm just kind of like, you know, I don't know. You know what I'm trying to do? I'm trying to build up anticipation.
So, Jerusalem, on your show, and congratulations, we can just listen for constant updates since this is like such a central issue. So, I'm just sort of setting you up for figuring this out for us and all its complications over the next, whatever, few years.
Okay. Well, you just brought up my new show, Hana.
It's called Good on Paper. Such a good name.
Thank you. So Good on Paper is a policy show, and it's one where we are investigating ideas that fly in the face of some existing narrative.
Maybe it's a broad one held by a lot of people in the U.S. Maybe it's a narrative held by an academic community, but it wants to take seriously ideas that seem kind of like in the face of what we already generally believe.
So, I mean, I think we've kind of already done an episode here on your show now that's like this. Like, you know, the idea that homelessness is not really about drugs, it's not really about mental health, it's about housing.
I mean, that is in some ways a narrative violation. It's also a lot about academic paper.
So it's about good on paper ideas and also papers that are good on. That's a good paper.

Yeah, no, that's something I love. Like, it's so delightful to come upon academics who have sort of cut through the ways that everybody else has done it and just like figured out how to factor in some very either obvious or complicated things.
It's so delightful to come upon a good, clear paper, you know. Thanks for having me on your show.
I can't wait to have you online. Yes, I would love to.
It was really fun. Yes, yes.
Thank you so much. I'm really excited.
Jerusalem's show, Good on Paper, is out now with new episodes every Tuesday. I hardly know anyone who sees the world as clearly as Jerusalem does.
She sees through and behind and under all of these policy decisions. If you listen to Good on Paper, you'll develop that superpower too.
This episode of Radio Atlantic was produced by Janae West. It was edited by Claudina Bade, fact-checked by Yvonne Kim, and engineered by Rob Smersiak.

Claudina Bade is the executive producer of Atlantic Audio, and Andrea Valdez is our managing editor.

I'm Hannah Rosen. Thank you for listening.