With foothills rising above, Boise, Idaho is a place of beauty. But it’s the city’s less scenic quarters, dead ends and back alleys that were Robert Martin’s home, on and off, for 15 years. On nights when Boise’s homeless shelters were full, Martin got sleep wherever he could. “There were times I’ve slept in garage stairwells, on cement, slept in rock, up under overpasses in the rocks and dirt,” he said.
But in Boise, sleeping or camping on public property was against the law. Martin was one of many ticketed and fined for sleeping in public.
Howard Belodoff, of Idaho Legal Aid Services, saw a constitutional issue in Boise’s camping ordinance, and made a federal case out of it. “Robert’s case, I thought it was actually a vivid portrayal of the situation that homeless people find themselves in,” Belodoff said. “Here’s a guy, he has no place to sleep. He’s been walking around all night because he’s been warned you can’t quote-unquote camp , which just means you can’t have a blanket around you.”
In 2009 in federal court, Belodoff filed a lawsuit that came to be known as Martin v. Boise , arguing that the city of Boise had violated the 8th Amendment of the Constitution’s ban on cruel and unusual punishments, by leaving those without homes nowhere to legally sleep.
“It’s ‘cruel and unusual’ in the true sense of the word,” Belodoff said, “because every single one of us – rich, poor, old, young, male, female – they need to sleep.”
Nine years later, the 9th Circuit Court of Appeals based in San Francisco agreed with Belodoff, writing it considered whether “the Eighth Amendment’s prohibition on cruel and unusual punishment bars a city from prosecuting people criminally for sleeping on public property,” and concluding “it does.”
San Francisco’s Mayor London Breed blamed Martin v. Boise for worsening the city’s crisis. The court order bars San Francisco from clearing sidewalk encampments unless the city can guarantee a place to sleep for everyone it moves – a challenge in a city with more than 8,000 homeless and fewer than 4,000 shelter beds.
Nationally there is a lack of shelter beds; according to the HUD 2022 Annual Homeless Assessment Report , about 188,000 more people need shelter than there are beds available.
But the Martin v. Boise decision applies only to the nine Western states under 9th Circuit jurisdiction. In the rest of the country, 14 states have laws making it a crime to camp in public places, and 27 states have laws against vagrancy and loitering that can be used to move along those sleeping in public.
Those kind of laws have effectively been outlawed in 9th Circuit states.
“What the 9th Circuit has said is that a person can’t be punished for being homeless if there aren’t adequate shelter beds or places for them to go,” said Erwin Chemerinsky, a leading constitutional scholar and dean of UC Berkeley Law School.
Blackstone asked, “The 8th Amendment prohibition on cruel and unusual punishment, we think of it as being applied to death penalty cases, for example. How can it be applied to homelessness?”
“In 1962, the United States Supreme Court said it’s cruel and unusual punishment to punish somebody for a status,” Chemerinsky said. “In that case, they said you can’t punish somebody for being a drug addict; you punish them if you’re taking drugs or possessing drugs, but not for the status of being addicted. Likewise, the federal court of appeals here has said, you can’t punish somebody for the status of being unhoused.”
Since the unhoused can’t be denied a place to sleep, Mayor Kate Colin of San Rafael, California, is almost powerless to move the person living in a tent beside City Hall. Shelters here are usually full, which means this suburban city of 60,000 can legally do little about encampments on its streets.
“Every time we passed an ordinance, we were sued either immediately or within the time frame that that can happen,” Colin said.
She said it is frustrating to explain to constituents that people camped on the streets cannot be moved: “People don’t want to hear that San Rafael doesn’t have the independent ability to work with our unhoused community,” she said.
While many cities complain about Martin v. Boise , Grants Pass, Oregon, is doing something. The city appealed to the Supreme Court.
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