Supreme Court To Decide If Being Homeless Can Be A Crime

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:45 Thomas: And Welcome to Opening Arguments. This is episode 1039 and I'm Thomas Smith I'm just I'm still feeling great. Still feeling amazing on a high from 34 guilty counts hasn't worn off yet. Ah, how nice. But that's not what we're talking about today. A moment, I'm going to be joined by, of course, a real live lawyer and co-host Matt Cameron. We have a really good interview for you today. Less of an interview and more of just a, like a guest expert breakdown. Ian is joining us.

He writes for Vox and his coverage is phenomenal, his Supreme Court coverage. And he's going to break down Grant's past for us. That is the case in which the Court is going to decide if it's okay to make homelessness illegal, just like being homeless, just the state of being of homelessness. Can you pretty much make that illegal if you use enough words that make it seem like you're not doing that, essentially? We'll get to that in a moment. Let's see, any announcements?

Well, Trump was found guilty 34 times. Not sure if you heard that. We finally got to Stormy Daniels territory on Gavel Gavel, Gavel Gavel. I will repeat, sorry that I've said it a bunch of times, but I don't go like a day without seeing a message. So right now, Gavel gavel is only available on patreon.com/gavelpod. We are working to bring that to a public feed. I promise that's in the works. It's just a lot going on right now, lot of going on, doing our best.

If you'd like to hear those episodes, patreon.com/gavelpod and into the Stormy Daniels area of that. It's really interesting and it's been fun, especially with Liz Skeen joining us, a defense attorney who works in that literal courthouse that Trump was found guilty in. He's found guilty of 34 counts. Did I say that? I should have said that. I should've let off with that big news. I suppose that'll do it for now for announcements. And I'll just say after this brief break, we'll and his breakdown of Johnson. If you'd like to avoid this break, you any breaks, any and all advertisements, you can go to patreon.com/law. right, back after this break.

0:02:52 Thomas: Thanks so much for joining us today.

0:02:53 Ian: Good to be here. Thanks so much.

0:02:55 Thomas: But is it, though? Because, you know, there's the old, like, you jump, I say how high. And I just feel like with the Supreme Court, it's like you say ruin society and they just are like, all right, how much? And it's just a question. I'm very worried about this case. I'm extremely worried. And so glad you're here at least to give us the breakdown but should we be pretty nervous about this?

0:03:16 Ian: I mean, I doubt that the result that we get from the Supreme Court is going to be good for homeless people. I, I mean there are some very extreme things that the Supreme court could do that I think are less likely. So the core issue in this case, it goes back to a decision from the 1960s called Robinson v. California. Robinson involved a state law which said that it is illegal to be addicted to a narcotic in the state of California. And what the Supreme Court said was, no, no. You can't make it a crime just to be something. You could make it a crime to do something. It could make a crime to use a drug. You make it in a crime, to use the drug and then engage in some antisocial behavior Because you are high, but simply being addicted to a drug, being anything at all is not something that can be criminalized.

0:03:23 Thomas: Yeah.

0:04:14 Thomas: You're saying that took until 1962 for someone to say that? That's alarming.

0:04:19 Ian: In fairness, this is a pretty long standing principle. Like, yeah, I mean, if the Supreme Court first said that it violates the Eighth Amendment, which is the amendment that deals with cruel and unusual punishment in the 1960s. But the idea that you have to do something before, you back to the English common law. I mean, if anyone who attended law school in your first week of your criminal law class, you probably heard the term actus reus. Actus reus is the Latin term for a criminal act. And as a general rule, that term, there has to be an actus reus before someone can be charged with a crime. I mean, in fact, I remember when I was in law school, Robinson v. California was one of the first cases that we read in my criminal law class, because it introduced the concept of an actus reus. The idea that there has to be some sort of criminal action before you can actually be prosecuted.

0:04:22 Thomas: Okay, okay. Yeah.

0:05:17 Thomas: Gotcha.

0:05:17 Matt: And so, the in this case found that Robinson extended to the status of being homeless. Did I get that right?

0:05:22 Ian: Correct. So Circuit said it was a case called Martin that came before. So the case that's in front of the Supreme Court right now is called Grant's Pass. Grant's pass is an iteration on Martin. And what Martin said was, you know, just like Robinson said, you cannot make it a crime simply to be addicted to a drug. Said you cannot make it a crime simply to be without housing. You know, the state of being homeless is not something that is not something that can be criminalized. This Grants Pass case involves a city, Grants Pass, Oregon, which didn't actually pass a law saying if you you step into Grants Pass and you are homeless, that is a crime. Instead, what they did was they passed a web of ordinances. You can't sleep here. You cannot sleep there. If you are in a park, you cannot wrap yourself in a blanket. They did not explicitly make it illegal to be in Grants Pass when you do not have shelter to go back to, but what they said was they essentially made it impossible to exist in Grants Pass if you don't have a home.

0:06:33 Thomas: It's this fiendish that seems like some justices might not be able to see through. Like, this has come up before, wasn't it Kagan, Kagan who brought up the example? I can't remember what the case was, but it was something where it's like, "Okay, well, if I ban you certain religious, uh, then it's, is that's not like it's okay because I'm not actually banning being a certain religion," or something like that. And it just seems to me that this is so transparently obvious, but are, are there some justices who are gonna pretend they don't see what's really happening there?

0:07:01 Ian: I mean, line there's that's often quoted, I forget which Supreme Court decision originally used this line, but the linethat's oftenquoted is a tax on yarmulkes is atax on Jews. Like, you know, there are some things that are, yeah, there are somethings that are so closely tied to a person's identity. I mean, the other area where this comes up is in cases involving attempts to criminalize gay sex or discriminate against men who date men. And what the Supreme Court has said in those cases is that if are a man and you have sex with men, or if you date men, that is something that is so intimately tied up with the status of being a gay person that it's essentially the same thing as just saying we're banning being gay. Yeah.

0:07:10 Thomas: Right. Yeah. I think that's what I was trying to think of.

0:07:30 Thomas: Right. Yeah. Right.

0:07:54 Ian: Case involves that kind of, you know, taxing yarmulkes to target Jews or taxing dating men to target gay men. It involves that sort of web of laws where, again, the Grants Pass ordinances don't say if you're homeless and you step foot in here, we're going to throw you in jail. But, you can't sleep anywhere. You can't protect yourself from the cold. You know, they have literally said, I like, go out to a park in Grants Pass and it's cold, so I decide to wrap myself up in a blanket, that's illegal in the AA.

0:08:25 Thomas: That's like taxing hats or that's crazy. I mean, my mom can't go anywhere, I guess. That's that's wow. They really don't want someone to be homeless there.

0:08:27 Ian: Right. Yeah. Yeah. No, I mean, that is the goal. And they were quite explicit about that. Their goal is to get it so that anyone who's homeless in Grants Pass just go somewhere else. And if it's only Grants Pass that has that law, presumably people could go someplace else. But the problem is that if every town puts in an ordinance like this, then what you are doing is you're making impossible to be homeless anywhere.

0:09:00 Matt: When I was reading about this, that Anatole France quote came to mind and everybody has been referencing ever since, and I actually went back and looked at Martin and that actually the Anatole France quote is the first thing they put into Martin because it's so top of mind. I'll just read it so everybody knows what I'm talking about. But, the law in its majestic equality forbids rich and poor alike to to sleep under bridges, to beg in the streets, and to steal their bread.

0:09:20 Thomas: Yeah, yeah. Yeah.

0:09:23 Matt: And it's illegal for any of us to sleep under bridges and to sleep in public parks, right? And that really is the fiction they're going with. I've never seen it played out in a legal argument quite this way.

0:09:32 Ian: Yeah. Yeah.

0:09:32 Thomas: I love when they don't get the this satire and they're like, yeah, no, that's good. Yeah. I agree.

0:09:35 Ian: No,

0:09:35 Matt: Yeah, it does. And

0:09:36 Thomas: Yeah.

0:09:39 Ian: And there certainly are justices on the court who want to say, it's fine to say that the rich and poor alike cannot sleep under bridges. Gorsuch at oral argument, you know, where he seemed to want to draw the line is to say That, oh, sure, you can't necessarily criminalize the status of of being homeless, but you can criminalize every act that a homeless person might, might engage.

0:10:00 Thomas: But You can criminalize yarmulkes, for example. Interesting.

0:10:03 Ian: Right. Yeah. I mean, and there actually is, I mean there's a follow-up case to this Robinson case. Again, Robinson was the case which said that if you are simply addicted to a narcotic, that itself cannot be a crime. There is a follow-up case called Powell. Powell involved a man with alcoholism.

And he claimed that his alcoholism was so strong and so irresistible that it was impossible for him to not drink and that therefore it was illegal to charge him with the crime of public drunkenness. Supreme Court rejected that. I mean, you know, there were a bunch of different opinions explaining the reasons why they rejected it.

You know, Marshall, who we don't normally think of as someone who is insensitive to civil rights, wrote the main opinion where he just sort of doubted that it was literally impossible for this person to not drink at any particular time. Justice Byron White wrote an important concurrence where he said, if it were in fact the case that this person, it is impossible for him to not drink, then I would agree that, you know, you couldn't criminalize his drinking.

But here he was charged with public drunkenness. So, you was truly impossible for him to not drink, then he should have stayed at home and not done it in public. Um.

0:11:19 Thomas: You should be homeless at home. Okay, I get it. No, I'm just kidding. So,

0:11:21 Ian: Yeah. I mean, yeah, the court wasn't particularly sympathetic to, you know, to this individual. But, like, dichotomy between the Robinson decision saying merely having the status of having an addiction is not something to be criminalized, and the Powell decision saying doing the things that people with an addiction will inevitably do can be criminalized. That's really at the heart of this Grants Pass case. What the city is trying to get away with is they're trying to say, you know, the equivalent of, we're not making it legal to have alcoholism, we're making it illegal to drink.

0:11:57 Thomas: Um, I read that there were a an awful lot of disappointing, like, amicus briefs in this. Is that something we could talk about at all? Didn't uh, get involved with this, right?

0:12:06 Ian: Yeah.

0:12:06 Matt: Seattle?

0:12:07 Ian: So there were, yeah, there were briefs from the city of San Francisco, and I believe from the state of California, which asked for this Grants Pass decision to be reined in. They are concerned about the fact San Francisco in particular is concerned about the fact that they that there are these homeless encampments where you have, you know, lots of tents, you have lots of people. Often these are not safe environments. Often they are havens for illegal drugs.

And what the city was saying was essentially, we need to be able to clear out these encampments because they are becoming a public health hazard and they're becoming breeding grounds for criminal activity. And I mean, that may very well be true. And there's not anything in the decision, the initial decision, saying that you can't make the mere status of being homelessness a crime, saying that that includes the right to also have all congregated into essentially a tent city.

The is, you know, if you don't have these encampments, what is the alternative? You question underlying these cases is that the people that the Martin decision is trying to help are people who don't have any alternative other than, you know, sleeping on a park bench or going to a tent encampment or something like that.

And so if they truly do not have an alternative, city of San Francisco wants to get rid of the thing that's available to them now, what is it going to provide them so that they have something else?

0:13:36 Matt: Seems like the particularly cruel part of the Grants Pass rule here, because as I understand it, it only applies if you have nowhere else to go. So if I fall asleep sleep in the park, just hanging out, that's okay. But if I don't have a house and I have nowhere to go, then I can actually be charged. Is that your understanding of that?

0:13:51 Ian: Mean, my understanding of how the Grants Pass ordinance is written, it is at least written in a universal way. So if you or I or anyone who is housed falls asleep in a grant, hanging out in the park, you fall asleep on the bench and maybe have a blanket over you, technically you can be arrested. Technically the law applies to you as well. Now, there are some allegations, and I find them entirely believable, that what's actually going on here is they have this ordinance that on the books, it says that it applies to everyone. But in practice, it only applies to people that the police suspect of being homeless.

0:13:58 Matt: They tried at our argument to distinguish that, and I think they were trying to claim that it wouldn't apply to most people, which actually made it worse for me.

0:14:37 Ian: No, I mean, if in fact, the way that the statute works is that it does only apply to people who are homeless, then like, then it then it is worse, because then it looks a whole lot more like you're criminalizing the status of homelessness.

0:14:45 Thomas: Yeah. Seems like one those things where it doesn't just feel like maybe this is more of like a policy question, but it just feels like a collective action problem that no one wants to find a way to do. It's just so much easier to demagogue on like a smaller kind by town basis almost of like, well, we got to deal with this homelessness problem. What are we going to do? Make a move 10 feet to the left. And you're like, OK, awesome. That's amazing. Amazing. But don't I understand how the logical like no one can just look at the logical implications of that and say, well, that they're still then they're 10 feet to the left. I don't understand how does that help anything? Especially if everybody adopts that mindset, I don't know, how isn't there a better way? I don't want to branch out too much into policy, I guess, but that just seems insane to me.

0:15:34 Ian: And there is some nuance here. Like, I think this would be a different case if, say, Grants Pass and like five of its neighboring towns have gotten together and said, what we want to do is create a serious, like come up with a serious solution to the problem of homelessness that simultaneously looks out for the interest of people in Grants pass, who want be able to use the park without having it become an area where there's all types of people trying to live there, while at the same time making sure that people who right now need to live in the park have somewhere else they can go.

And so suppose that these five towns have gotten together and they decide to pool their resources and build one grand homelessness shelter. And it was an adequately funded shelter. It would have plenty of beds for people. It they would have adequate security so people could feel safe going there. And then after doing that, Grants Pass had said, we're going to make it a crime to sleep in the park.

Like, you do want to sleep In the park, instead, we have built you this shelter, which is only two miles away that you can go to, like, think that would be a different case, I would be more sympathetic to to the city of Grants Pass if they had provided some kind of alternative, even

0:16:52 Ian: If that alternative was not within the borders of the Grants Past Township. But like, that is not what this case is about. This case is just about them saying, no, don't come here. We don't care what happens to you, but not here.

0:16:52 Thomas: Right yeah so

0:17:04 Matt: The previous strategy, as has been a strategy in a lot of places, was to just buy them a bus ticket out of town. But of course, they kept coming back, because as I understand it, a lot of the people who are unhoused in Grants Pass actually are are native to that area, they're Not coming from other places, so and that that isn't an Eighth Amendment issue, I guess, just put somebody on a bus to Vermont or whatever, um, Been done a long time, sure.

0:17:15 Ian: Right. Right? Well, mean, the issue there is that, you know, it's the same issue you have with anyone who's, you Know, trying to better themselves financially, Actually, like people have networks, you know, people, you, if you're trying to find a job, what, what does anyone do when they're, when, when they're trying to find a job? You call up your friends who might be able to help you find jobs. You up people, you know people who've worked for before people in your community that, know that might be able to help you find something that will get you out of the bad situation that you're in. And so, you know, someone in grants pass who grew up in grants past who has family there, who has friends there. I mean, maybe they are temporarily homeless, but like going to have a much easier time, you getting themselves into a better financial position if they're in a place where they have those networks.

0:17:29 Matt: So

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0:21:09 Ian: So I think broadly speaking, there's... there's three different ways that the court could handle this. Um, Justice Roberts, Justice Thomas, Justice Gorsuch, um, seem to think this isn't something the court should be dealing with at all. Like, this is a policy problem. We shouldn't be making policy. And so, like, should just throw this to the local city governments and the state legislatures and let them figure it out. And, you know, I am often sympathetic to the argument that the Supreme Court shouldn't be setting policy, elected people should. I think that's generally a good argument. I will say that this Supreme Court applies that argument very selectively.

0:21:47 Ian: You know, I mean, where was this attitude that the court shouldn't be setting policy when the elected president decided he was going to forgive student loans or when, you know, or, you know, when the Congress passed the Affordable Care Act and Barack Obama, the elected President, signed it into law, like a lot of these justices didn't seem to think that, you you know, we should respect the democratic process then. This So is an argument they deploy very selectively, but good you argument, and I'll get into in a bit why I think the courts are probably ill -suited to deal with the problem of homelessness. But anyway, that was one possible outcome. You

0:21:45 Thomas: Right right I'm

0:21:46 Matt: And

0:22:24 Thomas: That's the idea, and yeah, totally agree with you, where it's like yeah, yeah, that principle makes sense, but obviously it's selectively applied. If they are criminalizing things where it's tantamount to criminalizing being homeless though, why is that really an option? Like, if you draw an equivalence with, I don't know, the addiction one or Yarmulkes the, thing, it's like, but well, if they are doing that, then isn't that kind of unconstitutional? And you can't just be like, eh, we'll let somebody else take take care of that. What would that look like? Sure.

0:22:51 Ian: So let me go to the third possible outcome.

0:22:52 Thomas: Sure, why?

0:22:53 Ian: So the third possibility, this is something that Coney Barrett floated at oral argument, Justice Barrett.

0:22:58 Thomas: Doesn't someone just adopt all the homeless people? Right?

0:23:01 Ian: Exactly. I mean, Barrett's idea, which, like, I was... it was fairly sensible. So where I think the Ninth Circuit did err in the Grants Pass case is what the NinTh Circuit specifically ordered, like of the injunction, to use the legal term, is they said that if someone, and this is the word that the court used, is involuntarily homeless, then it is unconstitutional to apply the Grants Pass ordinance to them. If someone is voluntarily homeless, whatever the hell that means,

0:23:39 Thomas: Just, Like recreationally? Yeah, fun, I don't know, yeah.

0:23:43 Ian: Could with a crime. If you can imagine the hypothetical individual who just thinks it would be fun to sleep in the park for a while and give give up their apartment.

0:23:51 Thomas: That'll Probably snag like one or two YouTubers that are doing some weird you thing where they're like, I pretended to be homeless for a week or something, but apart from that, I don't know, yeah.

0:24:03 Ian: But aside like those weird cases where it would be obvious that this person has voluntarily chosen to be homeless. I mean, who does that? Think that it's just really hard to define what it means to be voluntarily or involuntarily without housing. Like, you have a gay teenager who is abused by, by his parents, who, you is forced to go to like, conversion you know, therapy, pray away the gay, that kind of thing. And that teenager decides to run away from home. The teenager has made a decision, but the decision that that teenager made was to leave a very unsafe environment.

Environment, imagine you have, a you woman who is being violently abused by her husband, you or imagine you have someone who theoretically has the option of going to a shelter, but the shelter is unsafe, and the last time they were there, they got beat up very badly, you voluntary for that person to say, I'm not going to the shelter, I'm going to sleep in the park instead, or does the fact that, you being essentially coerced into not staying there because there isn't adequate security, you that make it involuntary?

I think the problem with the Ninth Circuit's decision is it just announced if you're involuntarily homeless, you can't prosecute people for that. And then it didn't do the hard work of determining who is actually involuntarily homeless.

And like, if that is the framework, what Justice Barrett proposed, and again, I think this is a pretty sensible proposal, is rather than having what is called a pre -enforcement challenge, where a court just steps in and says, well, you can't this use against involuntarily homeless people, go figure out what that means, we should have waited until someone was actually prosecuted.

And then once you have an actual individual who is prosecuted, like there's going to be unique facts specific to that particular individual, and that individual's lawyer can then raise in court, this individual had no choice but to sleep in the park. Therefore, Martin and Robinson and all of these precedents apply. Like, you know, this should have been done on a case by case basis, rather than through a sweeping injunction where no one knows what the hell the injunction means.

0:24:25 Thomas: So,

0:26:17 Matt: That was the U.S. government's position, and they were not appearing for either party, right? They were just kind of there to make us, and they, uh, they were essentially saying that that they needed more of an individualized determination. So

0:26:26 Ian: Right. Right. That was the Biden administration's argument. I mean, they proposed a slightly different mechanism to reach that result. So, like, one thing that's weird about this case, the Grants Pass. I'm not sure, I mean I know some of the lawyers that represent them, they're good lawyers. So I imagine this must have been the city's decision and not the lawyer's decision. But the just made some really odd choices in its litigation strategy.

So the Biden administration's argument, and I think it's pretty much a slam dunk of an argument, was that the Ninth Circuit treated this as what's called a class action litigation, meaning that you have a whole bunch of people who all have the exact same or very similar legal claims. You know, in this case, all of these, you know, supposedly involuntarily homeless people, and we're just going to announce one rule that applies to all of them.

The way that class action litigation is supposed to work is there needs to be a very high level of similarity amongst all the people who are members of the class. And, you know, like I just said, I just don't think that's the case here. You know, what you have is you have a lot of people who do not have housing and who all have very personal reasons why they do not have housing.

And, the only way to determine which one of them falls under Robinson and which ones don't is to have an individualized assessment of who falls within the Robinson rule and who doesn't. And like the Biden administration said, like, this just shouldn't have been treated like a class action lawsuit, that should have been done on an individualized basis. I think that's correct. The weird thing is that the city didn't make that argument.

So like, it's unclear what the Supreme Court is supposed to do, because normally, the Supreme Court isn't supposed to rely on arguments that weren't raised by the parties and their briefs. But in this case, city like, basically made a bunch of really bad arguments for why it should win. And, Biden administration was in the unusual position of making a good argument for why they should win on a much narrower basis. And it's just not clear to me why, the Supreme Court's supposed to do under those circumstances?

0:28:35 Thomas: Are you saying the Biden administration, were they like at oral argument, or they just file an amicus brief or something?

0:28:40 Ian: So the filed an amicus brief, but like, because the Solicitor General represents the United States, typically when Solicitor General will often tell the justices, hey, have an important perspective on this. You should let let US have some time at the podium too, during oral arguments. And the Supreme Court grants that request out.

0:28:41 Thomas: Oh, so about friend of the court. It's like, yeah, no, I just brought I'm just plus one. But like while I'm here, I did want to have some good points about this. It's interesting.

0:29:07 Ian: Right. Yeah. I mean, it's not a courtesy that they generally apply. I mean it's very rare for an amicus who is not the United States to be given argument time. Think it's largely just because, you is the person that represents the people of the whole country. Know and And I think the justices recognize that that is, know, you, a uniquely potent position to be in. And if like the United States of America shows up and says it wants to express a viewpoint, you should at least hear them out.

0:29:36 Thomas: Right. Well, but so sounded like you were saying the justices can't just like use their arguments or normally wouldn't just use their arguments.

0:29:42 Ian: Yeah, normally the rule is that courts and especially appellate courts are supposed to limit their opinions to whatever is in the briefs. And the reason for that is because you don't want a court to think what they think is some great idea for how to resolve a case without giving the parties an opportunity to rebut whatever this idea is. And So the court winds up doing something thinking it's a great idea without realizing that there are very strong arguments against it, or that there are very, like, it'll lead to terrible consequences that, if you the lawyers on the other side of the case had known had that this was coming, they would have explained to the court, like, hey, don't do this, because it's going to lead to, you terrible outcomes.

So generally, you appellate know, courts, and especially the Supreme Court, because it's, know, you the court of last resort, there's no one you can appeal to if they screw something up, the Supreme Court is, you know, it's supposed to be very cautious about making arguments that that weren't raised by the parties. And so, even though there are some very strong arguments for, you limited decision saying that the Ninth Circuit went far here, those were not raised by the parties.

Now, I mean, it was raised in a brief by the United States. And that means that, know, when the United State shows up in court and opposes your position, your lawyer is a fool if they don't respond to it. Because

0:30:06 Thomas: Makes sense.

0:31:07 Matt: Sure.

0:31:07 Ian: Like, not just any schmuck saying this, It's the United States.

0:31:09 Thomas: He's like, damn it. I had myself as a client earlier and I didn't respond to the thing. God, I'm just I'm not

0:31:15 Ian: Yeah. Yeah. So, like, the concerns you are somewhat lessened here. But, like, just unclear what an appellate court is supposed to do when you have this strange situation where the defendant has a really good argument and just doesn't make it.

0:31:30 Matt: What I wanted to ask, actually, the city's argument. Let's go back to that for a second, because my understanding is that they're first saying that being unhoused is not a status. They're just denying that pretty much outright. And then they're also saying that if it is a status, that the Eighth Amendment cruel and unusual punishments ban only limits the government's ability to look at punishment, not what the crime is. So you can't say that a certain kind of crime is inherently an Eighth amendment issue. Is that, did I get that? They

0:31:47 Ian: Right. Right. So Robinson was, you know, again was an Eighth Amendment decision. The 8th amendment is the constitutional amendment, which says that you can't have cruel and unusual punishments. And what Robinson said is that there are some things that it's cruel and unusual to apply any punishment at all to them. You no set of circumstances under which the government can punish someone for doing X, or in this case, for not doing X, for simply having a particular status. That's what Robinson said.

The defendant's argument in this case, the one that they spend the most time on in their brief, is they're saying, no, that's just a wrong way to read the Eighth Amendment. What the Eighth Amendment actually says is it prohibits the kinds of punishments that can be enforced, but it doesn't prevent the government from attaching a, appropriate punishment to anything. So, you know, under under their reading of the Eighth Amendment, status crimes are fine. You can make it a crime to be homeless. You could make it a crime to be addicted to a drug. You could presumably make it crime to before, you or to have a previous felony conviction or, you to have any other status. That is their theory of the the Eighth Amendment. And I a disaster if the Supreme Court were to overrule.

0:32:42 Thomas: The I don't know if I'm missing context, but that's sounds from what you're saying extremely... I don't know what the word is. Bold to just be like, "No, no, we... our argument, you guys have been doing this constitution thing wrong, I don't know if you know this, this actually means something way different than what you idiots think." That just seems like really aggressive, ambitious.

0:33:24 Ian: Mean in fairness, we're talking about the post -Trump court here. So like the justices do that kind of thing all the time. I mean you may have heard about a case called Roe v. Wade. It's not around anymore.

0:33:24 Thomas: Yeah. Yeah. Yeah. At That was a penumbra. I don't know, it's pretty crazy you just be like, "Yeah, this is this one amendment that seems pretty clear." No, yeah.

0:33:42 Ian: I'll just say that this Supreme Court is particularly unsympathetic to arguments that it should follow precedent. And so I don't know that it's like all that unusual for someone to show up in front of this post-Trump Supreme Court that believes that precedents are optional and say, "Hey, let's treat this precedent as optional." I mean, that's just dealing with the justices you have.

0:33:59 Thomas: Yeah. Yeah.

0:34:06 Ian: Said, like in this case, of the things that could happen if it's possible to criminalize status, you set aside the issue issue of homelessness. You a rich, a that just didn't want poor people to enter.

0:34:06 Thomas: Poor People Yeah, geez.

0:34:18 Ian: Yeah. And so they said, like, if your income is below a certain level, or if you don't have, you know, a certain net worth, you're not allowed in this neighborhood, or maybe you're not allowed into this neighborhood after dark, like they still want to have servants, but like, you know. But like, you don t show up at our parties, don't like try to play with their kids. You the reason why, you know, it's unconstitutional right now is because the status of being poor, you That is not something that can be criminalized under Robinson and you take away Robinson. I don't know if there's anything preventing a community from doing that. Or even leave the door open to thought crimes like, that there was an individual and hypothetical individual.

Don't even know if they're a pedophile or not. But like imagine they are suspected of being sexually attracted to children. They've never acted on the urges. They've ever done anything wrong. They are merely suspected of, these unholy urges. You get rid of Robinson and you make it so that the status of being a pedophile is something that can be criminalized, that would mean that if someone is suspected, I mean, you know the fourth amendment would still apply.

So you'd have to have reasonable suspicion to do a certain level of search. You'd have that probable cause to do a certain of search, but you could potentially be in a situation where the government is forcing People to undergo, you Know, psychological examinations, you Know, very invasive, a very invasive Criminal probe to determine whether They're having bad thoughts.

0:34:19 Thomas: Yeah. Yeah.

0:35:43 Thomas: Like if you, um, believe that Trump won the 2020 election, stuff like that? Hmm.

0:35:47 Ian: I Mean, you could potentially have all Kinds of really just wild criminal laws If allow status crimes, you again, like, this would be a Fundamental rethinking of how the Criminal law works. I mean, Robinson was From the 1960s, but all that Robinson Robinson did is it said this longstanding principle that there has to be an actus reis, you know, that there have to be some kind of criminal act before you can prosecute someone. Are going to situate that in the Eighth Amendment of the Constitution.

0:36:15 Matt: They did say at oral argument, I believe, Grants Pass, that specifically they thought that Robinson was wrongly decided. I don't know if they went as far as asking the court to overrule it, but officially I think they're asking them not to extend it to this but it seems like they want it overruled.

0:36:27 Ian: Yeah, I mean, they that Robinson was wrong. Think it They should apply to their case, you against the underlying theory behind it. A strange argument for a lot of reasons. It's a strange argument for, like I said, it would lead to all kinds of terrible consequences. It is a strange argument because, you you can quibble with, like, whether this thing should be situated in the Eighth Amendment or not, like principle that was announced in Robinson was not something new. I mean, again, The idea that you have to commit a criminal act before you can charge with a crime goes all the way back to, like... the pre-colonial era. I in their brief to the Supreme Court cite a lecture by an English legal scholar from like 1757 or something, making the point that no, you can't criminalize someone until they've done something. You something for something that's involuntary. So this is not a new principle.

Then the other reason why it's a bizarre argument is even if you accept the premise that this right not to prosecuted have simply for being something. Even if you agree that the Eighth Amendment doesn't capture that, still other provisions of the Constitution. There is the due process clause, which says that no one shall be denied life, liberty or property without due process of law.

And there's a whole lot of scholarship saying, "Well, yeah, like, even if it does, if this doesn't fit within the Eighth Amendment, it fits within the due process clause." So like, it's not even clearly what the city achieves if it wins on this point. You get a court decision, which says, "Yeah. Yeah, no, no. That doesn't come from the Eighth Amendment. It comes from the Fifth Amendment." OK,

0:36:50 Matt: Sure.

0:37:56 Thomas: Yeah.

0:37:57 Ian: Like I'm sure law professors will be able to write a million words about that.

0:38:00 Thomas: Hey, That's Good for our business, you know, because we got to explain what the hell that means. So that's great for us, but I don't see how it's really good for that city. It

0:38:08 Ian: Like it's a purely academic distinction. Like which amendment does this think of? Who cares? You know, and why are you going to spend, you know, I mean they spent close to half of their brief on this argument. Argument, that policy implications of what they're asking for would to something horrible, but if you except the legal implications of what they are asking for, that it's not situated in the Eighth Amendment, then that doesn't necessarily even win them their case because the court could just turn around and in that instance probably should just turn and say, "Okay, fine. Like Robinson was wrong. This, this doesn't violate the Eighth Amendment. It violates the Fifth Amendment, violates the 14th Amendment."

0:38:10 Thomas: Seems Odd. Uh, I see in your article, that uh, one of your articles, that um, Chief Justice worried that we might not be able to criminalize the status of being a bank robber? Is that real? Is that a real thing? Someone said?

0:38:58 Ian: Mean, that is is a thing that he said. I mean, like there's an easy answer.

0:39:01 Thomas: That's, come on. Usually when you're the status of a bank robber, it's because something happened.

0:39:04 Ian: Yeah. You robbed a bank.

0:39:09 Thomas: Pretty crucial point there. I think you don't just become ordained a bank robbery or whatever, like deemed bank robbers from nothing, right?

0:39:18 Ian: Right. Yeah, yeah. I means like what Robinson said is like it is indeed unconstitutional to throw someone in jail for the status of being a bank robber. But that's never been a problem before because everyone who is a bank robber is someone who has committed the crime of robbing a bank.

0:39:34 Thomas: Boy, that's lucky, huh?

0:39:38 Matt: If you're addicted to robbing banks, you might have an issue. I

0:39:40 Ian: Yeah. Yeah. Like, I mean, you know, I guess you could try to come up with some crazy hypothetical. Yeah. This person hasn't robbed a bank yet, but they have some crazy medical condition that compels them to try to rob that. Yeah.

0:39:49 Thomas: Yeah. Perpetual bankruptcy.

0:39:55 Matt: Did appreciate that Justice Jackson pushed it to the point of getting Grants Pass to agree that they could not execute homeless people on the spot. Was a shocking moment in the argument. Under other circumstances, I would have thought that was an Alito question. But they did eventually say that they couldn't do that. So we at least have hit some limits.

0:40:03 Ian: Yeah, yeah, yeah. I mean I think that that ties into their theory of the Eighth Amendment because, again, their theory of the Eighth Amendment is that you can't criminalize, like the Eighth Amendment has nothing to say about what kinds of things can be criminalized, but the Eighth Amendment does limit the kind of punishment that can be imposed on someone. And so, you know, what the city essentially conceded is that, yeah, there is an amount of punishment. That could be done to a, a homeless person, that's too much. You know, same reason that you say, oh, you slept on that park bench. We're going to give you the electric chair.

0:40:47 Thomas: Yeah. Well, that's an interesting, I mean, again, just kind of good good for bar prep everywhere is, you know, whether or not this amendment applies to that amendment. And that's interesting, just a thing, again is not the lawyer where at first when you say, well, the cruel and unusual punishment also would stop certain kinds crimes from being punished at all. On one hand, I could see a a literal reading of the amendment being like, well, okay, that's weird. I don't know why it would be that.

But when you put it a certain way where it's like, well, imagine crimes that are almost like not crimes at all, like, you know, ending a sentence with a preposition. It's like well, any punishment for that is pretty cruel and unusual. Some of the grammar Nazis might disagree with me in the audience, but the idea that like, yeah, there are certain things where any punishment is going to be cruel and unusual actually makes a whole lot of sense to me just thinking it through.

And so I hope that that, you know, even if it is academic, it feels bad if we, the court were to decide that that's not true, like, oh no, it actually, it is all just about the punishment and not about what kinds of crimes.

0:41:45 Ian: I mean, the truth is that the Constitution is an extraordinarily vague document. And it has some provisions that are almost laughably vague. Like, you know, there's a provision in the 14th Amendment that says no one shall be denied the privileges or immunities of citizenship. You know, do you know what the privileges or immunities of citizenship are? Because I don't. And like and neither does the Supreme Court.

There's the due process clause that I mentioned earlier which says that no one shall be deprived of life, liberty or property without due process of law. The court has sometimes used that to create substantive rights. You know, and there's this Eighth Amendment, which says that you have cruel and unusual punishments.

And so we have this long standing principle going back to before when the United States even existed, that there has to be an actus reus, there has to be some kind of a criminal act before someone can be charged with a crime. And again, I think legal academics can argue over whether that belongs in the due process clause. Is it a privilege or immunity of citizenship?

Is it the unenumerated rights protected by the Ninth Amendment, which says that the rights that are explicitly enumerated in the Constitution shall not be interpreted to disparage the existence of other rights that aren't mentioned anywhere in the Constitution. You know, you can situate it in a lot of places. And I, I thought law school was a lot of fun. I thought it was a fun, you know, sitting

0:43:03 Thomas: Right, you weirdo.

0:43:03 Ian: Around the law review office.

0:43:04 Thomas: We Gotta arrest this law pervert for the status of thinking law school is fun. Sorry. Ian, I, I can't have that on this show. No, I'm just kidding.

0:43:10 Ian: Yeah, yeah, yeah. I'm very weird. But you know I thought it was very fun when I was, you know, in an academic setting to sit around the law review office and, you know, chat with my my classmates about these sorts of academic questions. But the stakes here are nothing. If we're talking about does this thing fit in this amendment or that amendment, if we all agree what the thing is. And, you know, the court has picked a place to put one of these rights, if we all agreed that the right should exist and we all agree on the scope of the right. There's just no compelling reason for the court to turn around later and say, oh yeah, that thing we said was an eighth amendment right. It's actually a Fifth and Fourteenth Amendment right?

0:43:54 Thomas: Yeah.

0:43:55 Ian: Who cares?

0:44:00 Matt: During the other argument, Pass mentioned several times that there'd be a necessity defense available. I don't think they really briefed that. And I thought that was kind of a cruel argument in itself, that you'd have to go to court, have a lawyer, you know, go through criminal proceedings and raise a defense of necessity in order to get yourself out of this. And they seem to think that that was a good safe harbor. Did you have any thoughts about that? So

0:44:19 Ian: I mean, this relates to the point that Barrett made earlier, which is that this need for an individualized assessment. And so, I'm inclined to think that given the need to have some kind of individualized assessment, I don't know of a way to do that other than waiting for the ordinance to be enforced and the individual that it's enforced against can raise a defense. But like, I think the issue with the necessity defense, I mean, necessity is, I believe it comes from the common law. It's, you know, it's a common law defense to a criminal charge.

0:44:55 Thomas: Stealing A loaf of bread to feed your family or something, okay.

0:44:58 Ian: Well Mean it's just basically saying like this was, there was no way that I could avoid doing this. You know,

0:45:02 Matt: Available for everything pretty much up to killing and eating somebody from what I remember in law school, the Famous Cannibalism Case, well

0:45:05 Ian: I Mean you Know Like I mean like the classic case would be like you know if I'm driving my car and like a deer jumps in front of me and the only way for me to avoid the deer is to swerve my car onto someone's property and now I'm trespassing, like A court would probably say yeah I have a necessity defense there because like I didn't really have another option, you know, but to violate the law in that case. But like, thing that came out of the oral argument, like, it's not clear how necessity works in these cases. Like the lines of when you can make a necessity case and when you can't are very fuzzy.

And we also already have the Robinson case lingering out there saying that, you know, it's an Eighth Amendment violation to criminalize status. So like, it sort of goes to the point I was making earlier about who cares if this is an Eighth Amendment defense or a Fourteenth Amendment defense, or a Ninth Amendment defense, whatever. I mean, okay, we can call it a necessity case then. And like, so long as the the necessity argument leads to the same results as the constitutional argument. I don't know that I have a preference for one or the other, but also who cares? Like, what are the stakes here if we just call this defense something else?

0:45:23 Thomas: Yeah, yeah.

0:45:56 Thomas: Well

0:46:24 Matt: Just to follow up on that, there was one of my questions was the amount of resources necessary to arrest somebody, write them up, put them, you know, and arraign them, put them into court, and then Have a necessity defense Right, and because that's one of the city's main arguments Is That they Don't Have the Resources right at that point. Like, I mean, and you're going to be talking about probably the same people over and over again, very likely having to raise these offenses, you know, and many people. So I just didn't find that to be very convincing or helpful with the necessity thing.

0:46:32 Thomas: Yeah You Could Just buy Him A damn House

0:46:47 Ian: Yeah. Yeah. I mean, like that's, I mean that's more a policy argument than a legal argument, but I think it's a good policy argument that like, like when you add up the cost of like having the police, you know, you've got to pay, you know, out of the city's budget, having the Police Patrol the parks or wherever it is that people are sleeping, having to pay for a prosecutor to, you know, to bring the charges, having to pay for a public defender to, to you know, defend these folks because, you know, the whole point is that they're indigent so they're not going to be able to afford their own lawyers.

And then, if all of these cases are going to end up being dismissed, whether on Eighth Amendment grounds or necessity grounds or like one other thing that came up at the oral argument is that the case might be moot. Jackson brought this up because Oregon has passed a law codifying the Martin decision, you know, saying that Or, like there's an Oregon state law saying that even if Martin is tossed out, even if Robinson is tossed out, that it's now legal to status crimes, is it the Oregon state law that you cannot criminalize the status of being homeless. So these cases might be tossed out under the Oregon state law, if you're spending all these resources on cops and prosecutors and public defenders, at some point, it kind of makes sense to take all that money and spend it instead

0:46:52 Matt: Sure.

0:48:11 Ian: On a Homeless shelter

0:47:41 Thomas: Hmm Yeah Yes And Also, but what's not making sense to me with this is, like, okay, you take one of these things where it was like literally the, the thing was, you can't be wrapped up in a blanket in a park, wasn't that some one of them and stuff like that? It just seems bizarre to me. That you'd be like, well, okay, but if you, if had to do that because you're homeless, that's fine, we're just trying to go after those like other criminal blanket wrappers, like we don't want it, just, just seems weird that to even phrase it as like, well, you have a good defense for why you wrapped yourself in a blanket of homelessness, that that cannot be how that works. Yeah.

0:48:12 Ian: Yeah Right.

0:48:43 Ian: Well, yeah, and I mean, I, the reason I think the answer to that is that this, this, the city's ordinances were almost certainly passed in bad faith, like The reason why they, they make it a crime to wrap yourself in a blanket isn't because they are worried about the cutesy couple who goes out and has, um, as a picnic in the park. And then like, they are, you know, after they're done.

0:48:51 Thomas: Pitch Is a different kind of tent, yeah, I get it, yeah.

0:49:09 Ian: You know, after, yeah. After they're done eating their lunch, they decide to like canoodle together with a blanket wrapped around them. Like, the city doesn't care about that couple. What the city wants to do is they want to be able to make it so unpleasant to be homeless in this town that all the homeless people leave. But, you know, because Martin and Robinson, because there's all these precedents on the book saying they're not allowed to write a statute that does that. There's now an Oregon law on the books saying that they're not allowed to write a statute that does that. They've instead, you know, had to go at it in this bass-ackwards way by, you know, criminalizing blankets.

0:49:43 Matt: Yeah, Sotomayor came out really hot out of the gate. I thought she really broke that apart pretty quickly and got them to admit it, essentially.

0:49:44 Thomas: Yeah. Well.

0:49:48 Ian: Yeah. I mean, it all goes back to, you know, what we were saying earlier about, you know, the tax on yarmulkes is a tax on Jews. I mean, you can imagine a hypothetical, hypothetical, you know, Christian individual. I mean, I imagine most of us who, you know, who are not Jewish at least attended someone's, bar you mitzvah when we were kids and got the free yarmulke that comes with it.

So like, under you know that tax, you know, the Christian who wears a yarmulke would also be taxed, but we still all understand who that tax is targeting. And similarly, you know, even though the city's ordinance could, you you know, potentially be applied to the picnicking couple. We all know who who and what this is really about.

I will say one broad thing here, which is that, you know, while I don't agree with the Roberts position that like is like criminalizing, you know, the status of being a bank robber or whatever, you know, I think some of his rhetoric went too far. I do think that relying on the courts to solve this problem is just not going to work.

Because like basically the only thing that the courts have the power to do is when someone is arrested to say, no, like, charge that person with a crime. And so, okay, you haven't charged that person with the crime or, you know, that person has now been found not guilty. They're still homeless. Like got a problem here. And a lot of these problems, you you know, we were talking about San Francisco earlier.

You've lived in San Francisco, you've probably heard about the million dollar toilet. A case where like, I mean, there was some park or like some public space where it just didn't have any bathroom space and

0:51:21 Thomas: Hmm.

0:51:21 Ian: Like community residents complaining that they would go and they would hang out and they'd need a place to go pee if they needed to. So the city tried to just build a toilet, a public toilet that people could use. And when you looked at all of the regulations that govern who can build and what can be built where and what environmental reviews need to happen and what other stupid NIMBY laws exist that make it impossible to build things, it wound up being, I mean, I forget what the exact figure, something like $1.6 million. It was some absurd amount of money to cut through all that bureaucracy so they could build a single public toilet.

0:52:01 Matt: Sure.

0:52:02 Ian: And we all know what rents are like in San Francisco right now. The reason why rents are like that is because there's far more people who want to live in San Francisco than there is housing available in San Francisco. And it's a shame, you know, that at a moment where, you know, lefties like myself are calling for deregulation that we can't actually get deregulatory legislation passed. But like, there needs to be a lot of deregulation in the, you know, in the housing space, we need to make it easier to build, we need to make it easier to build specifically in cities. We need to roll back a lot of environmental regulations that make it hard to build in cities, and the reason why is because people who live in cities are beneficial to the environment.

0:52:31 Thomas: Yeah. Yeah, yeah.

0:52:47 Ian: You know, I live in Washington, D.C., or I live in Arlington, which is the inner suburbs of Washington, D.C. I barely ever drive. Public transit here. Not that I'm carbon neutral, but I'm pretty close to it because I live in an urban environment where it is very easy for me to get around without having to, you know, put pollution into the air. So like we want to make it as easy as possible to build in cities. It's good for the environment. It's where people want to live.

Again, the reason why the rent is so damn high is because people want to live there. And, you know, we have this tremendous homelessness problem and the courts can't solve that. Like, it's not unconstitutional to have a regulation that makes it hard to build. It's just a shitty idea.

And, you know, we need the legislature, you know, we need the San Francisco City Council, we need the California State Legislature, and we need the Congress to pass laws that make it possible to build enough housing so that this question of can you criminalize the status of being homeless never comes up because the people who are sleeping in the park instead sleep in an apartment.

0:53:58 Thomas: That would be great. I agree there. Thanks so much for the breakdown. That really helped me understand it. When do you expect this decision, or is it just kind of unpredictable?

0:54:07 Ian: At the Supreme Court level, it's completely unpredictable, except that they all take a summer vacation that only begins in early July. So barring any kind of absurd events, I think we'll get a decision by the end of June.

0:54:19 Thomas: Right. Well, is there anywhere you'd like to point our listeners to read more of your stuff or anywhere at all? I'll follow Twitter or something like that.

0:54:27 Ian: I'll give two shout outs. I mean, one is, you know, you can read all of my stuff on Vox at Vox.com. And then I guess I'll shout out my first book because that's the one that I paid out the advance on. So I actually make money if people buy it. It's called Injustices, the Supreme Court's History of Comforting the Comfortable and Afflicting the Afflicted.

0:54:38 Thomas: Ooh, Yeah, that sounds kind of apropos. Thank you so much for joining us. We really appreciate it.

0:54:49 Ian: Thank you. This is a lot of fun.

0:54:50 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.