September 2024 – Parks & Recreation - 30

LAW REVIEW
of Grants Pass, Oregon, has pursued
a multifaceted approach. Recently,
it adopted various policies
aimed at " protecting the rights,
dignity, and private property of
the homeless. "
It appointed a " homeless community
liaison " officer charged
with ensuring the homeless receive
information about " assistance programs
and other resources " available
to them through the city and
its local shelter. And it adopted certain
restrictions against encampments
on public property.
As described by the Court, individuals
" experiencing homelessness
may be as diverse as the Nation
itself " :
[T]hey are young and old and
belong to all races and creeds. People
become homeless for a variety
of reasons, too, many beyond their
control. Some have been affected
by economic conditions, rising
housing costs, or natural disasters.
Some have been forced from their
homes to escape domestic violence
and other forms of exploitation.
And still others struggle with drug
addiction and mental illness. By
one estimate, perhaps 78 percent
of the unsheltered suffer from
mental-health issues, while 75 percent
struggle with substance abuse.
According to the Court, the " exponential
increase in encampments
in recent years has resulted in an
increase in crimes both against the
homeless and by the homeless. "
Moreover, despite expanded shelter
capacity provided by private organizations,
city officials and States, the
Court found the number of unsheltered
homeless individuals continues
to grow. The Court further noted
homeless individuals oftentimes reject
offers of available shelter for a variety
of reasons, including " concerns
for their safety or the rules some shelters
impose regarding curfews, drug
use, or religious practices. "
While a majority of cities have
laws restricting camping in public
spaces, the Court cited a response
from the National League of Cities
to criticism that " these laws
can create a revolving door that
circulates individuals experiencing
homelessness from the street to the
criminal justice system and back " :
[T]hese public-camping regulations
are not usually deployed as
a front-line response " to criminalize
homelessness. " Instead, they
are used to provide city employees
with the legal authority to address
" encampments that pose significant
health and safety risks " and
to encourage their inhabitants to
accept other alternatives like shelters,
drug treatment programs, and
mental-health facilities.
In addition to most cities, the
Court noted the federal government
itself also had exercised
regulatory authority to clear certain
" dangerous "
In
particular, these amicus briefs
claimed the threat of Martin injunctions
had
" paralyzed even
commonsense and good-faith efforts
at addressing homelessness, "
preventing
" local governments
from pursuing effective solutions
to this humanitarian crisis while
simultaneously protecting the remaining
community's right to safely
enjoy public spaces. "
Moreover, many cities claimed
the threat of a Martin injunction
had increased the number of unsheltered
homeless by " weakening
the ability of public officials to persuade
persons experiencing homelessness
to accept shelter beds and
other services. "
Eighth Amendment
Punishment Focus
As described
by
the
Supreme
encampments
while also restricting " the storage
of sleeping bags, " as well as other
" sleeping activities, " on park lands.
36 CFR §§7.96(i), (j)(1) (2023).
Injunction Threat to
Homeless Policy
While " different governments may
use these laws in different ways and
to varying degrees, " the Supreme
Court acknowledged a large number
of the " friends of the court " amicus
briefs submitted by cities and
States had argued the Ninth Circuit
had " inappropriately limited the
tools available to local governments
for tackling what is a complex and
difficult human issue. "
30 Parks & Recreation | SEP T EMBER 2 0 2 4 | PARK S ANDRECRE AT ION . OR G
Court, the origins and meaning
of the Eighth Amendment's prohibition
against " cruel and unusual
punishments " focused on " the
method or kind of punishment " a
government may " impose for the
violation of criminal statutes " :
In the 18th century, English law
still " formally tolerated " certain
barbaric punishments like disemboweling,
quartering, public dissection,
and burning alive, even
though those practices had by then
fallen into disuse.
The Cruel and Unusual Punishments
Clause was adopted to ensure
that the new Nation would never
resort to any of those punishments
or others like them. Punishments
like those were " cruel " because they
were calculated to super add terror,
pain, or disgrace. And they were
" unusual " because, by the time of
the Amendment's adoption, they
had " long fallen out of use. "
September 2024 – Parks & Recreation

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