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History Suggests the Supreme Court’s Homelessness Ruling Will Only Make the Problem Worse

Protest Outside Supreme Court During Arguments Over Homeless

On June 28, the Supreme Court handed down its opinion in City of Grants Pass v. Johnson. By a vote of six to three, the justices empowered cities to enforce laws prohibiting camping and vagrancy, dealing a blow to advocates who argue that the lack of affordable housing is driving a dramatic increase in the unhoused population.

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The tensions exposed by the case defy the usual partisan schisms. Instead, they pit advocates of an enforcement-first strategy against advocates for the unhoused, who point to evidence from places like Houston and Atlanta that indicate a housing-first strategy is far more effective. This debate has been going on for decades, and history shows that the enforcement-first path blessed by the Supreme Court is less effective than the housing-first approach.

Nowhere is that clearer than in New York City. As homelessness increased in the 1980s, the city struggled to meet the needs of the poor. The lack of affordable housing, cuts to assistance programs, and increasing rates of substance abuse, divorce, and domestic violence all fueled the growth of a newly visible homeless population that included more women and children than in previous decades. This skyrocketing population combined with a 1981 consent decree agreed to by the parties in Callahan v. Carey, which obligated New York to provide shelter and food to all who requested it, strained available resources. 

The problems were compounded by homeless people who refused assistance. The era’s deinstitutionalization policies toward the mentally ill led to the release of many former patients of psychiatric hospitals without the resources needed for their treatment. As many of them ended up on the streets, business owners and residents complained to the city that they were disruptive and dangerous to themselves and others.

Read More: California’s New Plan to Treat the Mentally Ill May End Up Violating Their Rights

In 1987, Mayor Ed Koch and his administration responded by taking assertive steps to place mentally ill homeless people in protective custody. As soon as the city committed the first person as part of this program, however, the New York Civil Liberties Union sued, ultimately winning her release and the right to resist involuntary medication.

Gentrification also exacerbated the dilemma. For a century, the Bowery section of lower Manhattan had served as the city’s “skid row,” providing a space for homeless people to exist. Inexpensive restaurants, a municipal shelter, and low-cost single-resident occupancy hotels helped keep many individuals fed and off the streets, though public sleeping was also tolerated within the district. But as the area gentrified, most of those businesses and social service organizations were priced out of the Bowery, and homeless individuals appeared more often on the streets and in encampments. Nearby Tompkins Square Park, on the Lower East Side, became the site of several new waves of encampments. 

A tense back-and-forth between the unhoused and the police soon ensued. After complaints by area residents and business owners about drug use, drug dealing, and other criminal activity by those camping in Tompkins Square, the Parks Department adopted a 1 a.m. curfew. Protests sprung up against the curfew and turned violent, leading to a small riot. Mayor Koch responded by easing the curfew.

By the 1990s, these problems were not unique to New York. Skid rows across the country had been remade through urban renewal projects and gentrification, leaving unhoused people with no dedicated urban space. As the number of visibly homeless people increased, many of whom suffered from mental illness and addiction, city leaders everywhere struggled to protect business owners and residents from their unhoused neighbors. Many cities, including Chicago, Atlanta, Miami, Los Angeles, and San Diego, enacted ordinances keeping homeless people out of public spaces, while many more made downtown areas uncomfortable through hostile architecture and benches that prevented reclining.

Things shifted in an even more punitive direction in New York City after the 1993 election of Republican Mayor Rudolph Giuliani, who won, in part, thanks to his promise to crack down on crime. Giuliani embraced the controversial “broken windows” theory developed by policy experts James Q. Wilson and George L. Kelling. The scholars argued that when one minor infraction went unchecked, major violations would soon follow. Determined to shut down such minor violations, Giuliani and his Police Commissioner, William Bratton, carried out years of “quality of life” campaigns across New York City. They actively prosecuted public urination, marijuana possession, graffiti, and other misdemeanor violations, often with special focus on unhoused individuals.

In 1999, several high-profile violent crimes carried out by homeless residents and panhandlers sent the city into a panic over the issue. When schizophrenic Andrew Goldstein pushed Kendra Webdale to her death in front of an oncoming subway train, the case dominated headlines for weeks. Goldstein had requested access to treatment facilities, but instead had been placed in unregulated residences. 

Later that year, an assailant struck an office worker over the head with a paving stone on a Midtown sidewalk. As part of the investigation, Giuliani and Police Commissioner Howard Safir announced a plan to arrest any homeless person who refused to accept services. 

Giuliani’s policies and an improving economy were credited with easing the homeless situation in New York and setting the stage for gentrification and thriving tourism. Yet, Giuliani’s enforcement-first strategy never really solved the problem or addressed the root causes of homelessness. And in recent years, skyrocketing rents have pushed more people onto the city streets. In a replay of the past, Mayor Eric Adams has deployed the NYPD to demolish homeless encampments across the city, prompting comparisons to the Giuliani administration.

The problem is not limited to New York City either. According to the U.S. Department of Housing and Urban Development’s Annual Homelessness Assessment Report to Congress, over 650,000 people in the U.S. were experiencing homelessness on a single night in 2023, the highest number since measurement began in 2007. The study found very high rates of homelessness in New York, Vermont, Oregon, and California, with nearly half the nation’s unsheltered homeless people found in California. The rising costs of housing means an increasing number of households are just one financial setback away from homelessness.  

The case just decided by the Supreme Court came from Grants Pass, Ore., where the politically conservative city government leaned into an enforcement-first strategy for dealing with the problem. It passed ordinances banning camping using any bedding, stove, or fire, “for the purposes of maintaining a temporary place to live” on “any sidewalk, street, alley, lane, public right of way, park, bench, or any other publicly owned property or under any bridge or viaduct.” Violators faced fines of $295. Repeat violations could lead to a 30-day ban from park spaces, and further violations, if deemed criminal trespass, could result in 30 days in jail and a $1,250 fine.

Read More: Supreme Court Allows Cities to Enforce Bans on Homeless People Sleeping Outside

In 2018, three homeless people sued Grants Pass claiming the ordinances violated the Eighth Amendment’s prohibition against cruel and unusual punishment. To punish someone for something they cannot help, such as sleeping outside, they argued, was inherently cruel. Lower courts agreed that the ordinances violated a decision in an earlier case mandating that such laws could only be enforced when there were more available shelter beds than the number of homeless people. 

The Supreme Court overturned that decision, finding that the Grants Pass ordinances did not violate the Eighth Amendment. The majority argued that the ordinances didn’t punish people for being homeless, but rather for actions taken, while the three dissenting justices disagreed. 

Many municipalities welcome the decision as they’re eager to eradicate homeless encampments, which are unpopular with many residents who see them as sources of crime and barriers to thriving business districts and residential neighborhoods. Even many liberal officials agree with what Mayor Giuliani argued in 1999 in defense of his quality-of-life campaign: “Streets do not exist in civilized societies for the purpose of people sleeping there.”

By contrast, advocates for the homeless decry this posture as cruel and inhumane. As Justice Sonia Sotomayor argued in dissent, “Sleep is a biological necessity, not a crime. For some people, sleeping outside is their only option.” Homeless advocates argue that decades of research and experience in cities like Houston and Atlanta have proven that moving the most vulnerable unhoused people directly into safe, stable housing — paired with pathways to supportive services — creates far more lasting and often life-changing effects than relying on policing strategies. These efforts have dramatically reduced homelessness. 

Fundamentally, this is the same debate that plagued New York City in the 1980s and 1990s. People who have suffered trauma often fear group shelter facilities, leading them to refuse placement even when beds are available. Sobriety rules and other regulations drive others away. Generous policies toward the homeless risk triggering public backlash, but clearing encampments without offering a variety of housing options will only repeat the mistakes that have been made for decades.

Ella Howard is professor of history at Wentworth Institute of Technology and author of Homeless: Poverty and Place in Urban America.

Made by History takes readers beyond the headlines with articles written and edited by professional historians. Learn more about Made by History at TIME here. Opinions expressed do not necessarily reflect the views of TIME editors.

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