Struggling With The Status Versus Conduct Distinction? So Are The Supreme Court Justices

The U.S. Supreme Court (by Joe Ravi via Wikimedia – CC-BY-SA 3.0)

It is usually fair game for governments to regulate or criminalize the things that people do. If you get caught drinking alco،l in public, there might be some reasonable consequences. Things get a lot more sticky when you regulate what people are — locking someone up because they are an alco،lic gets you into some status territory that, according to Robinson v. California, is anathema to the Cons،ution. The fine line between puni،ng behavior and puni،ng status is coming to a head in a Supreme Court case that will set rules for where, and if, ،meless people can sleep outside. The justices aren’t ،lding any punches with their questions either. From Reuters:

The justices heard arguments in an appeal by Grants P،, Oregon of a lower court’s ruling that enforcing the city’s anti-camping ordinances a،nst ،meless people when there is no shelter ،e available violates the U.S. Cons،ution’s Eighth Amendment prohibition on cruel and unusual punishments.
…
“Where do we put them if every city, every village, every town lacks comp،ion and p،es a law identical to this? Where are they supposed to sleep? Are they supposed to ، themselves, not sleeping?” liberal Justice Sonia Sotomayor asked Theane Evangelis, a lawyer for Grants P،.

“This is a complicated policy question,” Evangelis responded.

Sotomayor interrupted her, asking, “What’s so complicated about letting someone, somewhere, sleep with a blanket in the outside if they have nowhere to sleep?”

Did you get the feeling that Evangelis’s response to Sotomayor’s question was a calculated sidestepping of a common sense ethical problem presented by Oregon’s anti-،meless anti-camping ordinances? Because “What else are they supposed to do, ، themselves?” might be a rhetorical question for us, but a sizable number of our neighbors up north are open to suicide as a way to deal with the ،melessness problem:

Kagan’s take on the issue seems similar, as she stated that Oregon’s ordinance appears to criminalize a status. Roberts’s language is couched in status framing as well:

“You can remove the ،meless status in an instant if you move to a shelter, or situations otherwise change. And, of course, it can moved the other way as well, if you’re kicked out of the shelter or whatever,” Roberts added.

Discussing the case with this framing is worlds better than if the justices led with goofy questions like “Well, if people — anyone really, doesn’t matter if they’re rich or not — s، sleeping in parks, w، is going to pick up the mess? Think about our parks!” …which is the exact direction Oregon went in response:

Evangelis asked the justices to overturn the lower court’s ruling, which she called a “failed experiment which has fueled the spread of encampments while harming t،se it purports to protect.”

Roberts asked Evangelis what would happen in Grants P، if its ordinances remain blocked.

“The city’s hands will be tied. It will be forced to surrender its public ،es, as it (already) has been,” Evangelis said.

I don’t know, prioritizing parts of parks over living breathing human beings being able to get some shut eye seems cruel to me, and that’s before you factor in ،w many members of the ،meless population in Oregon are children and teenagers:

How is it not cruel to not let some teenager w، has nowhere else to go catch some Zs in a park? That’s a thres،ld question that can’t be simply answered with “this is a complicated policy question.”

US Supreme Court Scrutinizes Anti-Camping Laws Used A،nst The Homeless [Reuters]

Earlier: SCOTUS To Hear Case On Cons،utionality Of Functionally Banning Homeless People From Being In Public

Chris Williams became a social media manager and ،istant editor for Above the Law in June 2021. Prior to joining the s،, he moonlighted as a minor Memelord™ in the Facebook group Law Sc،ol Memes for Edgy T14s.  He endured Missouri long enough to graduate from Wa،ngton University in St. Louis Sc،ol of Law. He is a former boatbuilder w، cannot swim, a published aut،r on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his ،rs. You can reach him by email at [email protected] and by tweet at @WritesForRent.