Supreme Court gives us chance to create better homeless encampment law – Marin Independent Journal

Piles of trash and debris lie next to tiny plots of land at a homeless encampment on East 12th Street in Oakland, Calif., Thursday, Nov. 3, 2022. (Ray Chavez/Bay Area News Group)

The decision in Grants Pass is limited because it focuses on the wrong amendment. Whether the Eighth Amendment’s protection against cruel and unusual punishment prevents homeless people from being removed from encampments on public property was far too limited a legal question for a problem of this magnitude and complexity.

In ruling that homeless people have no constitutional protections when camping on public property, the divided court reflects the political polarization surrounding homelessness—where everyone is right depending on which side of the glass they’re looking through.

The dissenting justices rightly point out that tens of thousands of homeless Americans are victims of poverty, an acute shortage of affordable housing, physical and mental illness, and substance abuse. They rightly ask where these people should go.

The court majority finds that large tent camps are unhealthy and unsafe, both for the people living there and for the residential and commercial districts of American cities.

Given the choice between keeping people living in camps or evicting them without giving them anywhere to go, most people consider both options cruel and unusual.

What if the legal, moral and political decision had been different?

The next case (given the makeup of the U.S. Supreme Court, it may be more appropriate to ask the California courts for their opinion) should raise fundamentally different questions than whether people should have a constitutional right to camp on public property: Should state and local governments be legally required to provide some form of decent housing and services to homeless people? And should homeless people be legally required to accept those offers?

I firmly believe that the answer to both questions must be “yes”.

Society, through its governments at all levels, must be legally obliged to provide all homeless people with a truly safe and dignified place to live indoors. Temporary accommodation is not enough.

With the development of prefabricated housing that can be built more quickly and cheaply, a national Marshall Plan to dramatically increase production is possible, especially if there is a legal obligation to implement such a plan.

Society, through its governments, must also provide mental health and substance abuse services to all homeless and vulnerable people. California has made great strides in providing wraparound care through my Mental Health Services Act of 2004—and this has been further enhanced by the recent passage of Proposition 1.

But it is still not the duty of counties to help everyone in need. Homeless people must be required by law to accept the offer of housing and services. If they do not, the government can try to force them to do so and not allow them to remain in an unsafe and unhealthy encampment.

Whether the next precedent seeks to expand the substantive due process clause of the Fifth Amendment or its California counterpart, or whether it challenges another provision of the federal or state constitution, the idea of ​​combining rights and responsibilities is both intuitive and potentially powerful.

The current framework, as passed in Grants Pass, allows partisans to easily take sides. Either you’re an advocate who insists that the rights of the homeless always come first, or you’re a frustrated business leader or resident who insists on protecting our broader community.