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After Supreme Court ruling, Austin laws surrounding homelessness are still constitutional

A tent encampment for people experiencing homelessness underneath a US 290 overpass in south Austin, TX on June 2, 2021.  Gabriel C. Pérez/KUT News
Gabriel C. Pérez
KUT News
The City of Austin's laws around homelessness still stand following a Supreme Court ruling around a similar law in a town in Oregon.

The U.S. Supreme Court has ruled policies banning behavior related to homelessness in Austin and cities across the country are constitutional.

People experiencing homelessness in Grants Pass, Oregon, challenged city laws banning sleeping and camping outdoors in 2018, arguing they were unconstitutional because the city had neither the housing nor the emergency shelter space to accommodate them. In light of that, criminal prosecution equates to cruel and unusual punishment, they argued.

In a 6-3 ruling, the high court disagreed, siding with the City of Grants Pass. Justices said the city's laws didn't constitute cruel and unusual punishment. The fines aren't cruel, the court said, because they aren't arbitrary — they're given after a warning is issued — and they're not unusual, because cities "have long employed similar punishments for similar offense."

Friday's ruling means that the similar laws in both Austin and Texas as a whole that ban camping and sleeping in public are legally permissible.

Plaintiffs argued the law, which allows police to ticket someone for sleeping outdoors, was a violation of the Eighth Amendment, and that the court had previously ruled police can't target people solely because of a condition, like homelessness. Justices ruled that the Grants Pass law applies to anyone — not just people experiencing homelessness — and that a decision against the city would erode the authority of local governments.

“A handful of federal judges cannot begin to 'match' the collective wisdom the American people possess in deciding ‘how best to handle’ a pressing social question like homelessness,” the ruling read. “The Constitution’s Eighth Amendment serves many important functions, but it does not authorize federal judges to … dictate this Nation’s homelessness policy.”

 In a dissenting opinion, Justice Sonia Sotomayor said the decision didn’t take into account the issues of affordability, domestic safety, debt and mental illness.

 “It is possible to acknowledge and balance the issues facing local governments, the humanity and dignity of homeless people, and our constitutional principles,” Sotomayor wrote. “Instead, the majority focuses almost exclusively on the needs of local governments and leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested.”

What this means for Austin

For Mark Hilbelink, who runs the Sunrise Homeless Navigation Center, Austin's largest homeless services provider, the ruling doesn't change much. But, he said, the decision — and the case getting as far as the nation's highest court — suggests the need for a reckoning on homeless policies writ large. Policies like ticketing are costly — for defendants and for cities like Austin, he said.

"Is it cruel and unusual? It sounds like the justices have said it's not," he said. "What I would say is: It's ineffective and we've seen that locally. We've proven that criminalizing it does not work, and it does not reduce the population."

In Austin, the issue has been a political football. In 2019, the Austin City Council voted to undo criminal penalties for sleeping or camping outdoors. That was met with backlash and drew scrutiny from the state's GOP leadership. Two years later, voters undid those city rules, overwhelmingly passing a referendum to reinstate a ban on camping in public. That same year, the Texas Legislature passed a statewide law to do the same.

Since then, the city has tried to strike a balance between enforcement and providing short-term, transitional housing for people experiencing homelessness. The city has also increased beds at the city's emergency shelters. Despite those efforts, Hilbelink said, people haven't been transitioning off the streets and into housing as quickly as he thinks they should.

"[What] the conservative and the liberal side are both trying to do is reduce the population for very different reasons," he said. "But, unfortunately, neither criminalization nor a lot of our current policies have managed to reduce the population."

Austin's homeless population increased as the city as a whole experienced meteoric growth over the last decade and a half. Currently, more than 5,000 people are living without shelter on Austin streets, according to the Ending Community Homelessness Coalition's latest count.

The decision comes as homelessness in the United States is at a record high. More than 650,000 people were living in shelters or outdoors in January 2023, according to the U.S. Department of Housing and Urban Development.

Andrew Weber is a general assignment reporter for KUT, focusing on criminal justice, policing, courts and homelessness in Austin and Travis County. Got a tip? You can email him at Follow him on Twitter @England_Weber.
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