Out of Sight, Out of Mind: The Criminalization of Homelessness as a Public Status

Credit: George Etheredge, The Guardian

Abstract

This article argues that municipal anti-camping and anti-sleeping ordinances, when enforced in the absence of adequate shelter, constitute a modern mechanism of punishment that effectively criminalizes homelessness. Drawing on Eighth Amendment doctrine and civil rights litigation under 42 U.S.C. § 1983, this note examines the constitutional barriers in cities regulating conduct and when it crosses over to punishing homelessness as a status. Through an analysis of Martin v. City of Boise and City of Grants Pass v. Johnson, the article demonstrates a jurisprudential punishment in municipal codes veiled behind standard regulation of public conduct. While Martin recognized that enforcement of such ordinances in conditions of unavoidable homelessness violates the prohibition on cruel and unusual punishment, Grants Pass ¹ reasserts municipal authority to regulate public space even where compliance is impossible.² However, both cases are limited in their scope of urban governance in which homelessness is managed through exclusionary legal and spatial strategies instead of policy solutions. Therefore, the article contends that contemporary enforcement regimes render homelessness legally permissible only when it remains invisible, raising constitutional and normative concerns about the limits of modern city ordinances.

I. Introduction

Urban governance has increasingly turned to the regulation of public space as a means of managing homelessness. Across American cities, anti-camping and anti-sleeping ordinances are framed as neutral rules of conduct, yet for individuals without access to shelter, these laws regulate unavoidable, life-sustaining behavior rather than voluntary choice. This dynamic exposes a central tension within the Eighth Amendment, which prohibits punishment of status while permitting regulation of conduct.³ That distinction becomes unstable when the prohibited conduct, such as sleeping or resting, is inseparable from the condition of being homeless. When no lawful alternative exists, enforcement begins to resemble punishment of status rather than behavior.⁴ Nevertheless, municipalities rely on this formal distinction to justify enforcement practices that displace homelessness through ordinances, encampment sweeps, and exclusionary design. Thus, city ordinances concerning anti-camping and anti-sleeping constitute a modern form of punishment that entrenches and criminalizes homelessness rather than alleviating it. This article will use two cases, City of Grants Pass v. Johnson and Martin v. City of Boise to observe differing municipal reliance on carceral governance to manage poverty and how this violates “cruel and unusual punishment” protected by the Eighth Amendment.

II. The Eighth Amendment

The Eighth Amendment’s prohibition on cruel and unusual punishment places substantive limits on the types of conduct the state may criminalize. Although the clause most commonly appears in cases involving sentencing severity or prison conditions, its doctrinal reach extends further. This extension lies in its incorporation to the states under precedent that punishment must be tied to culpable conduct rather than immutable status under the Constitution.⁵

In 1962, the Supreme Court incorporated the Eighth Amendment to the states by striking down a statute that criminalized narcotics addiction in Robinson v. California. The Court held that the government may not punish a person for a condition or status that the individual does not meaningfully control.⁶ The Court reasoned that addiction is a state of being rather than a voluntary act and that criminalizing such a status would permit punishment based solely on identity, untethered from conduct. In doing so, the Court established a constitutional boundary between legitimate regulation of behavior and impermissible punishment of personal condition.⁷

However, this boundary became further complicated in following precedents. In 1968, Powell v. Texas upheld a conviction for public intoxication despite arguments that the defendant’s alcoholism rendered his behavior involuntary.⁸ The plurality reasoned that the statute punished the act of appearing intoxicated in public rather than the status of being an alcoholic. While the Court declined to extend Robinson to this context, dissenting Justices emphasized that punishment becomes constitutionally problematic when the prohibited conduct is inseparable from a person’s condition.⁹

The recognition of homelessness as a status has come into argument in modern legislation, specifically within lower courts. The unresolved question of what precedent is applicable to city ordinances banning loitering, public sleeping and camping began to have damaging implications for municipal regulation of public spaces. This is due to individuals without housing performing basic life-sustaining activities, such as sleeping and eating, in places that are publicly accessible out of necessity.¹⁰ Lower courts are faced with the constitutional challenge of blurred lines between regulating conduct and punishing status in municipal codes.

Federal courts addressing this issue increasingly acknowledged that anti-homeless ordinances may effectively criminalize existence. In Pottinger v. City of Miami (1992), a district court examined a pattern of arrests targeting unhoused individuals for engaging in everyday activities such as sleeping, eating, and resting in public spaces.¹¹ At the time, Miami had far fewer shelter beds than individuals experiencing homelessness. The court concluded that arresting individuals for performing life-sustaining activities when no alternative shelter existed constituted cruel and unusual punishment.¹² Enforcement in such circumstances effectively punished individuals for their status as homeless.

A similar conclusion emerged in Johnson v. City of Dallas (1994), where plaintiffs challenged a city ordinance prohibiting sleeping in public places.¹³ The court recognized that when shelter capacity falls short of the population experiencing homelessness, individuals may have no lawful location in which to sleep. The Ninth Circuit echoed this reasoning in Jones v. City of Los Angeles (2006), which addressed enforcement of a city ordinance banning sitting, lying, or sleeping on public sidewalks.¹⁴ The court concluded that applying such laws to homeless individuals when shelter beds were unavailable violated the Eighth Amendment.

When the law prohibits conduct that individuals cannot realistically avoid, punishment loses its moral and constitutional justification. The Eighth Amendment does not just regulate the severity of punishment; it also protects against the criminalization of conditions that individuals cannot escape.¹⁵ However, as cities become more populated, modern interpretations of local homeless ordinances often rule outside of recognizing homelessness as a punishable status.¹⁶

III. Civil Rights Actions for Homelessness

Legal challenges to anti-homeless ordinances are most frequently brought through civil rights actions under 42 U.S.C. § 1983, which allows individuals to seek relief when local governments deprive them of constitutional rights.¹⁷ Through § 1983, plaintiffs may request injunctive or declaratory relief preventing the enforcement of municipal ordinances that conflict with constitutional protections. In the context of homelessness, § 1983 litigation has become one of the primary vehicles through which individuals challenge municipal reliance on criminal enforcement to manage poverty.¹⁸

Criminal law traditionally presumes that individuals possess the capacity to choose whether to obey the law.¹⁹ Punishment is justified on the assumption that the actor could have behaved differently. When legal rules eliminate any realistic possibility of compliance, however, punishment loses its normative foundation. Laws that require the impossible undermine the legitimacy of criminal enforcement and raise serious concerns regarding fairness, dignity, and the rule of law.²⁰ If individuals cannot avoid violating a law despite reasonable effort, the resulting punishment no longer reflects culpability but circumstance.

Martin v. Boise (2018) as well as City of Grants Pass v. Johnson (2024) are both precedents set by motions filed under § 1983 actions. Section 1983 does not itself create rights. However, it provides a procedure through which plaintiffs may enforce rights guaranteed by the Constitution or federal law. To establish a viable claim, a plaintiff must demonstrate two essential elements: that the challenged conduct was carried out by a person acting “under color of state law,” and that this conduct deprived the plaintiff of rights secured by the Constitution or federal statutes.²¹ Under this regulation, § 1983 actions must be brought in person within two years of incident, after exhausting all other attempts to use city resources.²²

IV. Martin v. City of Boise

In Martin v. City of Boise, the Ninth Circuit considered whether a city may enforce ordinances banning sleeping or camping in public spaces against individuals experiencing homelessness when no alternative shelter is available. The court held that such enforcement violates the Eighth Amendment’s prohibition on cruel and unusual punishment because it criminalizes unavoidable, life-sustaining conduct rather than voluntary behavior.²³

The plaintiffs in Martin were unhoused individuals who had been cited or arrested under Boise ordinances prohibiting sleeping or camping on public property. Boise acknowledged that the number of people experiencing homelessness exceeded the number of available shelter beds, leaving many individuals with no lawful place to sleep.²⁴ Plaintiffs brought a civil rights action under 42 U.S.C. § 1983, arguing that the city’s enforcement practices punished them for their status as homeless rather than for any meaningful choice to violate the law. The district court ruled in favor of the plaintiffs, and the City appealed.

The Ninth Circuit relied on Supreme Court precedent interpreting the Eighth Amendment’s limits on punishment. In Robinson v. California, the Court held that the government may not criminalize a person’s status, such as addiction, because status alone is not conduct a person can choose to avoid.²⁵ Applying this reasoning, Martin emphasized that sleeping is a basic biological necessity. When individuals lack access to shelter or private space, sleeping in public is not a voluntary act, but an unavoidable consequence of homelessness as a status. Under those conditions, the court reasoned, enforcing bans on public sleeping or camping effectively punishes individuals for being homeless. The court rejected the city’s argument that the ordinances were neutral regulations of conduct, focusing instead on their real-world impact: excluding unhoused individuals from public space altogether.

The court concluded that the Eighth Amendment’s Cruel and Unusual Punishments Clause bars enforcement of ordinances prohibiting outdoor sleeping against unhoused individuals who lack access to alternative shelter.²⁶ The court reasoned that where no indoor sleeping option exists, the government may not punish unhoused individuals for sleeping in public as such conduct is involuntary. However, the court did not declare all public-camping ordinances unconstitutional, nor did it require cities to provide housing.²⁷ Instead, it held that enforcement becomes unconstitutional only when individuals have no meaningful alternative to sleeping in public.

The court emphasized that its holding was narrow: cities remain free to regulate the time, place, and manner of sleeping and to enforce camping bans when adequate shelter is available. However, where no shelter exists, enforcement crosses a constitutional line by criminalizing survival itself. The decision aligned with extensive empirical evidence showing that criminalization worsens homelessness by imposing fines, arrest records, and barriers to housing and employment.²⁸ Therefore, the Martin decision did not eliminate municipal authority to regulate public space. The court made clear that cities may enforce camping restrictions when adequate shelter is available and may impose reasonable time, place, and manner regulations.

The court also considered the broader consequences of enforcement. Citations, fines, and arrests resulting from anti-sleeping ordinances create legal and financial barriers that make it more difficult for individuals to exit homelessness. By cycling unhoused individuals through the criminal legal system, these ordinances entrench poverty rather than alleviate it.²⁹ The court implicitly recognized that when punishment worsens a condition it claims to address, its constitutional legitimacy is undermined.

Martin v. City of Boise established anti-homeless ordinances as a form of carceral governance through its ruling, suggesting that city ordinances often handle homelessness through punishment mechanisms. By treating survival conduct as constitutionally significant when no alternatives exist, the court placed meaningful limits on the use of criminal law to regulate homelessness. If the act of public sleeping and other life-sustaining behaviors is punished, the status of being homeless becomes a criminalized existence.³⁰ Martin revealed not only that city ordinances attempt to criminalize homelessness, but that they also acknowledge that there is no alternative solution to sleeping in public.

The implication from the Court is that enforcing anti-camping and anti-sleeping ordinances in the absence of shelter constitutes cruel and unusual punishment under the Eighth Amendment. More importantly, it establishes that cities attempt to control homelessness by pretending that a specific status of people does not exist. When there are no attempts to mitigate lack of shelter, but city ordinances forbid sheltering in public areas, the act of being homeless becomes a criminal behavior punished by unlivable conditions.

V. City of Grants Pass v. Johnson

In 2024, City of Grants Pass v. Johnson revisited the constitutional limits on municipal enforcement of public camping and sleeping bans and rejected the approach taken by the Ninth Circuit in Martin.³¹ The Court held that the Eighth Amendment does not prohibit cities from enforcing generally applicable bans on public camping and sleeping, even when those laws are applied to individuals who lack access to alternative shelter.³²

The City of Grants Pass enacted ordinances prohibiting camping and sleeping in public spaces, including parks and sidewalks. Violations resulted in escalating civil penalties and, for repeat offenses, exclusion orders barring individuals from public property. Several unhoused residents challenged the ordinances through a § 1983 action, arguing that enforcement against individuals with no access to shelter constituted cruel and unusual punishment.³³ The district court ruled in favor of the plaintiffs, relying on Martin, and the Ninth Circuit affirmed. The Supreme Court reversed.

The Court framed the case around a formal distinction between status and conduct. According to the majority, the ordinances punished the act of camping on public property rather than the status of being homeless. The Court emphasized that the Eighth Amendment limits the types of punishment that may be imposed but does not restrict a city’s authority to regulate conduct in public spaces through generally applicable laws.³⁴

Unlike the Ninth Circuit in Martin, the Supreme Court declined to consider whether sleeping or camping in public was unavoidable for individuals without shelter. The majority rejected the idea that lack of alternatives makes enforcement unconstitutional, reasoning that courts should not be tasked with evaluating shelter availability or social welfare policy. As a result, the Court treated survival conduct as legally voluntary, even where compliance with the law may be practically impossible.

The dissent criticized this reasoning, arguing that prohibiting sleeping or camping in public when no shelter exists effectively punishes individuals for circumstances beyond their control. According to the dissent, such enforcement does not regulate conduct in any meaningful sense, but instead criminalizes presence in public spaces.³⁵

As precedent, City of Grants Pass v. Johnson represents a significant narrowing of Eighth Amendment protections.³⁶ Whereas Martin treated involuntary, life-sustaining conduct as constitutionally significant, Grants Pass permits municipalities to rely on public-order enforcement to manage homelessness, even when those laws function as tools of exclusion. The decision therefore represents more than a disagreement about doctrine. It reflects two competing visions of constitutional protection. One approach, articulated in cases such as Pottinger,³⁷ Jones³⁸, and Martin³⁹, recognizes that the Eighth Amendment must account for the practical realities individuals face based on housing status. The precedent embodied in Grants Pass is that legal neutrality is sufficient even when compliance may be impossible.

By restoring a formal distinction between status and conduct, the Court effectively permits municipalities to rely on criminal enforcement as a tool of urban governance. The practical consequence is a constitutional framework in which homelessness itself cannot be punished, but nearly every act necessary to survive without housing can be.⁴⁰ The law may insist that it regulates conduct rather than status, yet when survival conduct becomes the object of regulation, the distinction grows increasingly difficult to maintain.

VI. The Criminalization of Status and Anti-Homeless Architecture

Invisibility functions as both a survival strategy for unhoused individuals and a governance strategy for municipalities. Those experiencing homelessness often learn to minimize their visibility in order to avoid stigma, surveillance, and punishment, while cities design laws and spaces that encourage their disappearance from public view. This dynamic reinforces the idea that homelessness is acceptable only when it does not disrupt public aesthetics or economic activity.⁴¹

Anti-camping and anti-sleeping ordinances prohibiting sleeping, resting, or sheltering in public spaces effectively outlaw the visible presence of homelessness without addressing its underlying causes. When shelter is unavailable, these ordinances leave unhoused individuals with no lawful place to exist. As the Ninth Circuit recognized in Martin, sleeping is a biological necessity, not a voluntary act. When there is no option of sleeping indoors, punishing someone for sleeping outdoors collapses the distinction between conduct and status. Enforcement under these conditions punishes individuals for being homeless rather than for any meaningful choice to violate the law. Thus, if survival is physically impossible, punishment becomes inevitable.

Municipal design strategies and architectural design reinforce this exclusionary legal framework. Public spaces across the United States increasingly incorporate architectural features designed to discourage sleeping or prolonged presence. Benches divided by metal bars prevent individuals from lying down. Sloped seating in subway stations allows passengers to rest briefly but prevents sleeping. Spikes and barriers are installed in alcoves, beneath bridges, and along building facades to deter individuals from sheltering in these spaces. These design choices operate as a form of spatial regulation that excludes unhoused individuals without the need for explicit legal prohibition.⁴²

Credit: https://www.cbsnews.com/newyork/news/nyc-subway-leaning-benches/

Cities also rely heavily on enforcement practices that displace unhoused populations from one location to another. Encampment sweeps, move-along orders, and vehicle dwelling restrictions have become routine tools of urban governance.⁴³ These measures are frequently justified as necessary to protect public safety, sanitation, and environmental conditions. Framing enforcement in these terms allows officials to characterize punitive actions as protective measures rather than as instruments of exclusion.

Additionally, these decisions are often implemented by street-level officials across multiple municipal departments, including police, parks services, sanitation agencies, and public works divisions. The Administrative Procedure Act of 1946 gave discretionary decision-making power towards vague laws for street-level actors, meaning punishment for homeless ordinance violations varies and is difficult to track.⁴⁴ Because these officials exercise considerable discretion in deciding when and how to enforce regulations, their daily decisions effectively shape homelessness policy in practice. Enforcement frequently prioritizes maintaining public order and aesthetic control of urban spaces rather than addressing the structural causes of homelessness.⁴⁵

The cumulative effect of these legal and spatial practices is a regulatory framework that governs homelessness through displacement. Individuals experiencing homelessness may technically remain within the jurisdiction, yet they are systematically prevented from occupying visible public space. Public sleeping is prohibited, resting is discouraged, and encampments are dismantled. In New York City, the NYPD asks residents to report encampments taking place in visible public space as a “safety measure.”⁴⁶ Each enforcement action moves individuals somewhere else without providing a lawful alternative.

The spatial dynamics of homeless ordinances are most obvious in the targeting of areas based on perceptive visibility. The West Side of Manhattan in New York City holds some of the highest grossing neighborhoods in the state, and is also a main focus of sterility and anti-encampment ordinances. Within these neighborhoods lies Hudson Yards, a 25 billion dollar project introduced in 2019, just outside of other wealthy neighborhoods like Greenwich Village, where the first standing Subway bench was imposed.⁴⁷

Beneath the exterior of Hudson Yards lies a starkly different landscape. As one of the most expensive private real estate developments in United States history, Hudson Yards was designed to embody luxury, order, and controlled urban space. Yet directly underneath this highly curated environment, a network of tunnels and underpasses has become a site of informal habitation for unhoused individuals.⁴⁸ Reports have documented people living in makeshift encampments below the development, relying on hidden, overlooked infrastructure to avoid constant displacement. The practical effect of this invisibility means that many homeless individuals are forced to suffer illegitimate living conditions out of the public eye, many of them becoming victims to illness or inclement weather.⁴⁹

This spatial divide is not incidental. It reflects a deliberate separation between visibility and existence. Above ground, architectural design and enforcement practices maintain an image of cleanliness and affluence. Below ground, homelessness is permitted to persist so long as it remains out of sight. The contrast illustrates how urban governance does not eliminate homelessness but instead redistributes it into spaces that are less visible, less regulated, and more dangerous. Therefore, Hudson Yards represents the logical extension of anti-homeless architecture and legal framework. Where benches are redesigned to prevent sleeping and public spaces are structured to deter presence, hidden infrastructures become the only remaining options. These spaces are not lawful alternatives, but they are tolerated because they do not disrupt the visual and economic order of the city. In this way, invisibility becomes a condition of permissible existence and effectively punishes homelessness as a status under the Eighth Amendment.⁵⁰

This dynamic exposes the limits of the Ninth Circuit’s reasoning in Martin v. City of Boise. While Martin recognized that punishing individuals for unavoidable, life-sustaining conduct is unconstitutional when no shelter exists, its holding remained narrowly confined to the availability of formal alternatives. It did not fully account for the ways cities informally “solve” this constitutional problem by pushing unhoused individuals into invisible spaces rather than providing meaningful housing options. The existence of places like the tunnels beneath Hudson Yards reveals that the absence of visible homelessness does not indicate compliance with the law, but rather displacement beyond the scope of legal scrutiny.

The Supreme Court’s decision in City of Grants Pass v. Johnson makes this reality explicit. By rejecting the need to consider whether individuals have any realistic alternative to sleeping in public, the Court permits enforcement regimes that prioritize aesthetics over necessity.⁵¹ What is being regulated is not simply conduct, but the visibility of a condition. When sleeping in public is prohibited, resting in public is discouraged, and sheltering in visible spaces is dismantled, the only remaining option is to disappear.

Therefore, homelessness is not criminalized in name, but it is criminalized in effect. The law insists that it targets conduct, yet it prohibits every act necessary to survive in public view. What remains permissible is not the condition itself, but its invisibility. Cities are willing to tolerate homelessness so long as it exists beneath the surface, outside of commercial districts, and beyond the perception of those whom urban space is designed to serve. Under this framework, the law permits homelessness, just as long as it is invisible and not a perceived unsightly view to the public. Municipal codes effectively punish homelessness as a status when it is visible, criminalizing its public existence and condemning homeless individuals to seek dangerous areas of shelter.

VII. Conclusion

Ordinances that punish sleeping, camping, sitting, and lying in public violate the Cruel and Unusual Punishment Clause of the Eighth Amendment because they criminalize life-sustaining conduct inseparable from homelessness. Homelessness remains a significant and urgent problem in the United States, and despite sustained advocacy, meaningful progress has been limited. Ending the criminalization of homelessness offers a path toward reducing its prevalence by shifting the focus away from punishment and toward assistance.⁵² Moving away from penalizing unavoidable behavior and toward supporting a vulnerable population would benefit not only those experiencing homelessness but the public as a whole. Declaring these ordinances unconstitutional is a necessary step in dismantling the broader criminalization of homelessness. However, continued enforcement is largely driven by societal perceptions of homeless individuals as undesirable and by local governments’ interest in controlling public space. Simply restricting when enforcement can occur does little to address the root problem or produce lasting change, as seen in the precedent in Martin.⁵³

The Cruel and Unusual Punishment Clause’s limitation of determining what can be made criminal is “one to be applied sparingly,” and the severity of homeless governance is one of these rare and necessary instances.⁵⁴ The precedent in cases like Grants Pass implies that life-sustaining behaviors like sleeping can be constituted as voluntary conduct, even when there is no other option than to sleep publicly or disappear from the public eye. The Eighth Amendment protects against the criminalization of conditions that individuals cannot choose. However, the interpretation of local homeless ordinances as limiting voluntary criminal conduct effectively establishes homelessness as a punishable status. Punishment is justified on the belief that unhoused individuals can behave differently, but it provides no legal obligation for cities to provide safe, legal sleeping areas. Thus, municipal codes create an impossibility of compliance, violating long-term Eighth Amendment precedent. The punishment under these codes reflects a lack of culpability, other than for unhoused individuals to effectively disappear from the public eye. Because this often requires unsafe conditions, the Eighth Amendment condition of punishable status applies.⁵⁵

It is necessary to fully abolish anti-sleeping and anti-camping laws to shift governments away from the criminal justice system and carceral governance in responding to homelessness. Such abolition is not only a policy choice but a constitutional imperative. Sleeping or camping in public is not a choice but a necessity for many, and enforcement remains unconstitutional even where some shelter options exist, as they are often inadequate or inaccessible. Continued reliance on punitive measures will only contribute to the growth of the homeless population, while abolishing these ordinances is the most effective way to move toward a more lawful and sustainable solution.

Edited by Annie Cayer and Emma Morgan

About the Author

Grace Wilds is a senior at Northeastern University majoring in Criminal Justice and Political Science. She serves as a Staff Writer of the Northeastern Law Review, where she has contributed to two digital publications. As a writer, Grace wrote Free Exercise or Free Rein? Judicial Overreach and the First Amendment in Public Schools that argued against censorship in public school education under the Free Exercise Clause.

Grace’s legal interests include constitutional law, criminal justice reform, and the intersection of law and public policy, with a particular focus on social and economic equity. She has gained practical experience through her work as a legal intern with the United States Attorney’s Office and at the Massachusetts Attorney General’s Office, contributing to labor enforcement efforts in the Fair Labor Division. She has also worked in Litigation Support at WilmerHale in their New York City office.

Outside of her work, you can find Grace exploring different cafés and bookstores in Boston or picnicking with her friends at the Charles Esplanade or Commons when the weather is warm.

Abstract

I. Introduction

II. The Eighth Amendment

III. Civil Rights Actions for Homelessness

IV. Martin v. City of Boise

V. City of Grants Pass v. Johnson

VI. The Criminalization of Status and Anti-Homeless Architecture

VII. Conclusion

About the Author

Notes from the Author

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