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April 10, 2024

Might the Supreme Court completely rewrite Eighth Amendment jurisprudence in the Grants Pass case?

The question in the title of this post is discussed at some length in this new Marshall Project piece, which carries this full headline: "This Supreme Court Case on Homelessness May Limit Prisoner Rights and Expand Executions: In Grants Pass v. Johnson, a town in Oregon asks the court to reconsider what constitutes “cruel and unusual punishments."  I recommend the whole article, and here are a few excerpts:

When the Supreme Court hears the case of Grants Pass v. Johnson later this month, the justices will consider how far cities can go in policing homeless people. But just as the court swept away a half-century of precedent by overturning Roe v. Wade, the justices could use this case about homelessness to upend how we interpret four key words in the Bill of Rights — “cruel and unusual punishments.” Their decision could have ramifications across a wide swath of the criminal justice system, including prison conditions and the death penalty.

The case is about whether the city of Grants Pass, Oregon, violates the Constitution’s Eighth Amendment when it arrests, fines and even jails people without homes for sleeping outside.  A lower federal court recently ruled that punishing people for doing something they cannot help is cruel and unusual punishment. “As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter,” the Ninth Circuit Court of Appeals wrote.

Grants Pass appealed the ruling up to the Supreme Court, which will hear oral arguments on April 22, positing that the courts have no business telling cities what behavior they can regulate.  The Eighth Amendment, they say, applies to punishments levied after a crime, not laws that establish what is a crime in the first place, and besides, fines and jail time are hardly cruel or unusual. 

At the heart of this debate are two very different ways of reading the Eighth Amendment.  First, there’s originalism.  In recent sweeping decisions on abortion and guns, conservative justices have focused on what the Constitution’s language meant to the men who wrote it in the 1780s.  But other judges and scholars argue for a “living” Constitution, whose meaning should change as the world changes....

Using the evolving standards argument, federal courts have ruled on access to health care in prison, protection from excessive force and limits on the use of solitary confinement. They have prohibited the death penalty and mandatory life-without-parole sentences for people who are younger than 18 when they commit crimes, as well as executions of people with intellectual disabilities. The language has also served as the basis for decades of decisions requiring that juries consider people’s individual, often trauma-filled lives before deciding whether to send them to death row.... 

More than 100 scholars and organizations have filed “friend of the court” briefs ahead of oral arguments in Grants Pass v. Johnson.  Many argue the court should let these rulings stand and continue to look to contemporary standards when deciding what is cruel and unusual. In one brief on the other side, Republican attorneys general from 20 states urged the justices to throw out the evolving standards interpretation entirely.  (Many of them also made similar arguments in a separate case, supporting Alabama’s request to execute a man with an intellectual disability.)  Among their reasons are that it “has no discernible end point” and that it requires “judges to act as sociologists.”

I somewhat doubt that many Justices will be inclined to use the Grants Pass csse to dramatically rewrite Eighth Amendment jurisprudence, but I understand why various folks are hoping or fearing such a possibility.  And, perhaps ironically, the fact that many amici have filled briefs urging the Court not to approach this case more broadly might perhaps incline some Justices to approach the case more broadly.  But in a Term full of high-profile cases with lots of broad echoes, the Justices may want to keep this one relatively simple.  And perhaps we will get a sense of matters during oral arguments in a couple of week.  In other woids, stay tuned.

April 10, 2024 at 05:39 PM | Permalink


Doug recently put up an excellent piece quoting Judge Tom Hardiman about how the courts' invention of "evolving standards" was a concocted ploy to allow the judicial branch to rule according to its supposedly refined (translation: Leftist) tastes rather than allow the political branches to decide what standards government policy should reflect.

Fortunately, the current Court is closer to that view than to the Warren/Brennan/Douglas view that "we-can-do-whatever-we-want-because-we-are-better-people" theory.

Posted by: Bill Otis | Apr 11, 2024 9:30:25 PM

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