California’s Ban on Cruel or Unusual Punishment: A State Constitutional Analysis of Anti-Camping Ordinances

In Martin v. City of Boise, the United States Court of Appeals for the Ninth Circuit relied on the Cruel and Unusual Punishment Clause of the Eighth Amendment to rule that a class of involuntarily unhoused individuals may not be criminally punished for sleeping on public property in the absence of “sufficient alternatives” for all unhoused people. In Johnson v. City of Grants Pass, the Ninth Circuit elaborated that civil schemes which lead to criminal punishment are unconstitutional as well. However, the United States Supreme Court granted certiorari in the latter case and disrupted both Ninth Circuit decisions. The Court upheld the anti-camping ordinances in Grants Pass by reasoning that (1) the Cruel and Unusual Punishment Clause applies only to methods of punishment rather than what can be criminalized to begin with; and (2) state legislatures should have discretion in addressing the public safety issues tied to unhoused encampments in local communities. The Supreme Court’s analysis, however, improperly interpreted Eighth Amendment precedent. This Note argues that the Supreme Court’s analysis in Grants Pass was not consistent with well-reasoned Eighth Amendment precedent. Moreover, even if the Court’s analysis is accepted, many state constitutions can and should be read independently to confer rights on the unhoused that are broader than those protected under the federal Constitution. This Note uses California—the state with the highest houseless population—as a case example of such independence. Unlike its Eighth Amendment counterpart, California has a cruel or unusual punishment clause contained within its constitution. This Note argues that California’s disjunctive clause clearly offers more extensive individual rights than its federal counterpart, and involuntarily unhoused people must not be criminally punished or fined for sleeping on public property in California.