Maryland AG Brown submits amicus brief to SCOTUS saying banning public property sleeping arrangements is “cruel and unusual punishment”

03 April 2024- Maryland Attorney General Anthony G. Brown today led a coalition of six attorneys general in filing a Supreme Court amicus brief supporting the respondents in City of Grants Pass v. Johnson. The brief argues that the Constitution’s ban on cruel and unusual punishment prohibits punishing people for sleeping on public property when they have no other place to lawfully sleep.  

“Punishing homelessness only makes the problem worse and unnecessarily pulls people experiencing homelessness into the criminal justice system,” said Attorney General Brown. “I’m proud to lead this group of attorneys general in asking the Supreme Court to confirm that the Constitution prohibits punishing people for sleeping on public property when they have no other place to go.”  

The City of Grants Pass, Oregon, passed two ordinances that prohibited people from sleeping on public property with even minimal protection from the elements. In 2022, the U.S. Court of Appeals for the Ninth Circuit held that the Eighth Amendment to the U.S. Constitution, which outlaws cruel and unusual punishment, barred the City from enforcing these provisions against people who are involuntarily homeless – that is, people experiencing homelessness who have no other lawful place to sleep in the City. In January 2024, the U.S. Supreme Court agreed to hear the case.  

In today’s brief, the coalition argues that punishing a person who is involuntarily homeless for sleeping on public property is not meaningfully different from punishing her just for being involuntarily homeless. For such a person, the only way to comply with the City’s anti-sleeping ordinances is to leave the City altogether. 

The coalition further explains that the Court of Appeals’ decision is clear and narrow – a city cannot punish a person for sleeping on public property when the person has nowhere else to sleep in the city. This decision, the brief continues, does not prevent state and local governments from taking reasonable measures to regulate “encampments” set up by people experiencing homelessness. It also does not stop state and local governments from enforcing their criminal laws more broadly. Finally, the decision does not prevent state and local governments from addressing homelessness with policy tools that don’t push people experiencing homelessness into neighboring jurisdictions. 

In the brief, the coalition discusses how state and local governments have responded to homelessness and encampments with solutions other than criminalization. It emphasizes the success of “housing first” approaches to homelessness – fighting homelessness by, first and foremost, providing housing to people experiencing it – and explains how criminalization tends to make the problem worse. 

In filing the brief, Attorney General Brown was joined by the attorneys general of Illinois, Massachusetts, Minnesota, New York, and Vermont.