Grants Pass: The Limitations of the Eighth Amendment and the Future of Homelessness Litigation in America

Grace Hinton*

America is facing a homelessness crisis. According to the 2024 Annual Homelessness Assessment Report to Congress, the number of people in the United States experiencing homelessness is at an all-time high, with over 770,000 people lacking permanent housing.¹ The causes of homelessness are complex and include the “worsening national affordable housing crisis, rising inflation, stagnating wages among middle- and lower-income households, and the persisting effects of systemic racism . . .”² In response to worsening homelessness and inadequate emergency shelter space, unhoused populations are increasingly congregating in encampments on public land.³ Many cities around the country have enacted laws barring public sleeping and public camping.⁴ One such city is Grants Pass, Oregon.⁵

Grants Pass has banned public camping, which is defined as “setting up or remaining in or at a campsite, and a ‘campsite’ is defined as any place where bedding, sleeping bags, or other material used for bedding purposes, or any stove or fire is placed for the purpose of maintaining a temporary place to live.”⁶ The litigation in City of Grants Pass v. Johnson began shortly after the Ninth Circuit Court of Appeals held in Martin v. City of Boise that “municipal ordinances that criminalize sleeping, sitting, or lying in all public spaces, when no alternative sleeping space is available, violate the Eighth Amendment.”⁷ The Eighth Amendment protects individuals from “cruel and unusual punishments.”⁸ Although this so-called “Punishments Clause” is often invoked to limit the types of punishments that the government can impose, it has also been used to limit what act scan merit such punishment.⁹

The issue of whether ordinances banning public camping violate the Eighth Amendment reached the Supreme Court after the city of Grants Pass appealed the Ninth Circuit decision which found that Grants Pass had violated the precedent set in Martin.¹⁰ The Court considered how to apply precedent from Robinson v. California, a case in which the Court held that the criminalization of mere status violated the Eighth Amendment.¹¹ At issue in Robinson was whether a person’s addiction to narcotic substances alone could constitute a criminal act deserving punishment.¹² The Court determined that although imprisonment is not itself a cruel or unusual punishment, the invocation of punishment for an individual’s mere status as an addict would make “even one day in prison” cruel and unusual.¹³

In Grants Pass, the majority distinguished the issue from that in Robinson, arguing that the laws at issue do not criminalize mere status because “a person does not violate ordinances like Grants Pass’s simply by being homeless but only by engaging in certain acts (actus rei) with certain mental states.”¹⁴ The majority further found support in Powell v. Texas, wherein the Court refused to extend the holding in Robinson to protect the plaintiff, an alcoholic, from enforcement of public drunkenness laws when he argued his actions were “involuntary” due to his condition.¹⁵

In contrast, the dissent in Grants Pass contends:

Under the majority’s logic, cities cannot criminalize the status of being homeless, but they can criminalize the conduct that defines that status. . . . By this logic, the majority would conclude that the ordinance deemed unconstitutional in Robinson criminalizing ‘being an addict’ would be constitutional if it criminalized ‘being an addict and breathing.’¹⁶

While opinions on the ruling differ greatly and do not adhere strictly to party lines, the Supreme Court’s ruling in Grants Pass does little to guide the country towards solving the pressing issues that our communities face regarding homelessness.¹⁷ Some critics of the decision argue that the Eighth Amendment is not the best avenue for future litigation. Ben McJunkin, Associate Professor at the Sandra Day O’Connor College of Law at Arizona State University, explains that following Justice Sotomayor’s logic “would be to unsettle entrenched criminal law practices” that the current Court seems unlikely to reconsider.¹⁸ McJunkin sees potential in leveraging Due Process under the Fifth and Fourteenth Amendments in state courts to protect the agency of people experiencing homelessness.¹⁹

Since the Grants Pass ruling, the legal landscape surrounding these issues has grown increasingly complex. In July, President Donald Trump signed an Executive Order calling for “[s]hifting homeless individuals into long-term institutional settings . . . .”²⁰ Amid the debates over constitutionality, the lives and wellbeing of individuals experiencing homelessness hinge in the balance. An unhoused man, Robert, wants Americans to remember: “We might be dirty and smell. . . . We’re still human.”²¹

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* Grace Hinton, J.D. Candidate, University of St. Thomas School of Law, Class of 2027 (Associate Editor).

1. Tanya de Sousa & Meghan Henry, The U.S. Dep’t Housing and Urban Dev., The 2024 Annual Homeless Assessment Report (AHAR) to Congress 2 (2024 AHAR) https://www.huduser.gov/portal/sites/default/files/pdf/2024-AHAR-Part-1.pdf [https://perma.cc/4RXX-NLUM]. ↩︎
2. Id. at v. ↩︎
3. City of Grants Pass, Oregon v. Johnson, 603 U.S. 520, 565 (2024) (Sotomayor, J., dissenting). ↩︎
4. Ben A. McJunkin, Grants Pass and the Pathology of the Criminal Law, 102 Wash. U. L. Rev. 1583, 1586 (2025). ↩︎
5. Johnson, 603 U.S. at 526. ↩︎
6. Id. at 537 (internal quotations omitted). ↩︎
7. Johnson, 603 U.S. at 538; Martin v. City of Boise, 920 F.3d 584, 589 (2019) (emphasis in the original). ↩︎
8. U.S. Const. amend. VIII. ↩︎
9. Johnson, 603 U.S. at 573 (Sotomayor, J., dissenting) (quoting Ingraham v. Wright, 430 U.S. 651, 667 (1977)). ↩︎
10. Id. at 539–40 (majority opinion). ↩︎
11. Id. at 544. ↩︎
12. Id. ↩︎
13. Robinson v. California, 370 U.S. 660, 666–67 (1962). ↩︎
14. Johnson, 603 U.S. at 547. ↩︎
15. Id. at 548. ↩︎
16. Id. at 577–78 (Sotomayor, J., dissenting). ↩︎
17. See Lauren Irwin, Where Should the Homeless Go? A Year After the Grants Pass Ruling, Advocates Remain Divided, Deseret News (June 30, 2025, 11:05 AM MDT), https://www.deseret.com/politics/2025/06/27/grants-pass-supreme-court-controversy-year-later/ [https://perma.cc/EK6P-ZLC2]. ↩︎
18. McJunkin, supra note 4, at 1583, 1607. ↩︎
19. McJunkin, supra note 4, at 1614. ↩︎
20. Exec. Order No. 14321, 90 F.R. 35817 (2025). ↩︎
21. Irwin, supra note 17. ↩︎