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THE IRRATIONALITY OF PUNISHING HOMELESSNESS
No full textThe Supreme Court upheld the criminalization of public survival by unhoused people in City of Grants Pass v. Johnson in June 2024. This article examines that decision and considers why Grants Pass had not enforced its camping ban against unhoused people when the author visited the city one year later. One important reason is that Oregon had enacted legislation requiring that any camping bans in the state be objectively reasonable considering the totality of circumstances, including the impact on unhoused persons. Given the ongoing lack of shelter in Grants Pass after the Supreme Court’s ruling, the city’s unhoused residents obtained a new state court injunction against the city’s camping ban based on the recent state law. While enforcement of a camping ban when unhoused residents have nowhere else to go may not be cruel and unusual punishment (according to the Supreme Court), it is still not objectively reasonable in the totality of current circumstances. Considering the actions of Grants Pass in historical and contemporary context, this article argues that the city’s overt discrimination against unhoused persons requires an Equal Protection analysis. It examines the relevant rationality review cases leading up to the notorious “no scrutiny whatsoever” of Dandridge v. Williams, which remains tainted by the “economic whip” justification behind the state’s stringent cap on welfare benefits. This article argues, nonetheless, that a close look at the relevant rationality review canon—from 1911 to 2025—reveals that the Court’s various iterations of rationality review consistently require an actual, factual, contextual, and practical review of the purported relation between the government’s means and its ends to ensure that the action is in fact supported by plausible reasons. Given the repeated public statements by city councilors of Grants Pass that they aim to banish unhoused residents, and the overwhelming evidence showing that criminalization is ineffective (because it tends to increase homelessness), harmful (because it prolongs the suffering of unhoused persons), and more expensive than the more effective alternative of providing housing, this article concludes that believing criminalization will solve homelessness is simply beyond rational belief
THE CONSTITUTIONAL RAMIFICATIONS OF GRANTS PASS
No full textThe brief and ambiguous wording of the Eighth Amendment has permitted courts to adopt a variety of interpretations. These interpretations have been applied inconsistently through different periods of the Amendment’s history, but the U.S. Supreme Court has never established a singular, definitive method for interpreting the Amendment. That is, until the 2024 decision in City of Grants Pass, Oregon v. Johnson, where the Court rejects any interpretation of the Eighth Amendment that is not strictly originalist in nature. This article analyzes the Court’s reasoning in Grants Pass and explores the potential consequences of adopting such a narrow interpretation of the Eighth Amendment. We find that an originalist approach to the Eighth Amendment could jeopardize decades of precedent, result in more unfavorable rulings for criminal defendants, and ultimately lead to a decline in the Supreme Court’s institutional legitimacy
CRIMINALIZING SURVIVAL: HOW THE GRANTS PASS DECISION IS INTENSIFYING THE HOMELESSNESS CRISIS IN CALIFORNIA AND BEYOND
No full textThis article examines the intensifying criminalization of homelessness in the United States since the Supreme Court’s 2024 decision in Grants Pass v. Johnson, which removed the ability of people to challenge laws under the Eighth Amendment’s Cruel and Unusual Punishment Clause that prohibit survival behaviors in public places like sitting, sleeping, or lying down. The article explores the legal and practical challenges in documenting criminalization of homelessness, analyzes national and California-specific legislative trends and enforcement practices, and assesses the impacts on unhoused populations. The article concludes with policy recommendations to shift the state of homelessness criminalization from one of punitive approaches to humane solutions
Public Trials and Plain Error
Full text linkCourts are divided on the question of how Sixth Amendment public trial violations should be evaluated on appeal when a criminal defendant fails to object at trial to a courtroom closure. Typically, failing to object triggers plain error review on appeal, which demands a higher threshold of harm to obtain reversal compared to when an objection has been made at trial. Should this type of review also apply in its usual form to public trial errors? The article concludes that it should, despite the fact that public trial violations are considered “structural,” and, when properly preserved, do not require a showing of harm arising from the violation
REALIZING RIGHTS TO DEVELOPMENT AND HEALTHY, SAFE, SUSTAINABLE ENVIRONMENT IN GLOBAL AND LOCAL CLIMATE ACTIONS AFFECTING SMALL ISLAND DEVELOPING STATES
Full text linkThis paper presents new empirical research on two fronts: 1) the individual and collective normative and international legal commitments voluntarily assumed by States in the international system to assist in responding to small island developing States’ (SIDS) deeply intertwined ecological vulnerabilities resulting from climate change alongside prevailing socio-economic challenges since decolonization; and 2) the incipient, but also fast escalating record of international, regional, and local jurisprudence on climate change reparative measures that courts, tribunals, and other adjudicative bodies have issued in relation to the vulnerabilities of small island developing States. Based on the interdisciplinary research of both the Notre Dame Global Human Rights Clinic (using the Human Rights Database and Analysis Project), as well as using the latest completed dataset of the Notre Dame Reparations Design and Compliance Lab, we map legal, institutional, and operational spaces to further support the effectiveness of global and local climate actions affecting small island developing States.10 In our view, the binding legal human rights to development and to a healthy, safe, clean, and sustainable environment provide an underutilized opportunity to strengthen the legal and institutional claims of SIDS to climate financing and other forms of needed international cooperation, assistance, and action to enable SIDS to cope with and respond to the human rights impacts of today’s worsening climate emergency
