Authors

• Joseph W. Mead, Georgetown University Law Center

Keynote: Going Forward After Grants Pass

Abstract

In this keynote, I explain the decision—and the stakes—of City of Grants Pass v. Johnson. In Grants Pass, the Supreme Court held that the Eighth Amendment’s Cruel and Unusual Punishments Clause posed no barrier to cities making it a crime for their homeless residents to sleep outdoors with as little as a blanket, even when those residents have no other option. Grants Pass, Oregon undertook an aggressive campaign to drive unhoused residents out of the city through punitive ordinances that criminalized unavoidable human conduct, such as sleeping with a blanket. The plaintiffs challenged the narrowest version of these laws: a prohibition on sleeping outside when no shelter exists. Yet the Court reframed the case as being about “public camping” and complex public policy choices about homelessness, rather than what was truly at stake: Do some of the most vulnerable residents of our communities have even the most basic right to exist?

The Court’s discussion of encampments (not at issue in the case) and its reliance on speculative complaints lodged by the City’s amici (unsupported by the record) contributed to a majority opinion that failed to fully engage with the arguments—and the humanity—at stake. The result was a holding that draws an artificially formal line between conduct and status, allowing governments to criminalize people’s existence and evade the Cruel and Unusual Punishments Clause’s ban on status-based punishment by targeting their essential, unavoidable acts of living.

Although the decision closed one constitutional pathway for protecting people experiencing homelessness, the Court acknowledged that other constitutional rights play an important role. I mention a few of these alternative doctrines—Excessive Fines, Due Process, Vagueness, the First and Fourth Amendments, disability rights, state constitutional law—which remain fertile grounds for challenging the criminalization of homelessness.

The Court has failed to acknowledge the basic rights of citizenship for marginalized groups before, but the Court’s failures are never the final word. Courts cannot alter the fundamental truth that human rights endure.

Repository Citation

Joseph W. Mead, Keynote: Going Forward After Grants Pass, 67 Wm. & Mary L. Rev. 911 (2026), https://scholarship.law.wm.edu/wmlr/vol67/iss4/2