Home > Journals > WMLR > Vol. 67 (2025-2026) > Iss. 4 (2026)
William & Mary Law Review
Abstract
In City of Grants Pass v. Johnson, the Supreme Court held that the Eighth Amendment does not prohibit cities from punishing unhoused people for sleeping outside when they have nowhere else to go. While the holding was legally narrow, the Court’s rhetoric framed criminalization as sound policy rather than punishment, obscuring the criminal legal system implications at the heart of the case. Cities responded not to the narrow holding but to the rhetorical message: In the year following the decision, they enacted hundreds of new laws criminalizing homelessness and dramatically intensified enforcement.
This Article argues for the recentering of the criminal legal system and its constitutional constraints in advocacy against antihomeless laws and policies. It demonstrates how the Court’s rhetoric obscured the fundamentally punitive nature of these practices and how cities responded by funneling individuals into the criminal legal system rather than investing in opportunity and meaningful care. Situating current practices within the nation’s history of using criminal law to control marginalized communities, this Article argues that increased criminalization of homelessness creates cascading harms throughout the criminal legal system that violate core constitutional protections: pretextual stops, coerced searches, property seizures, and denial of effective counsel. While numerous constitutional claims survive Grants Pass, confronting antihomeless practices with criminal procedure protections exposes the punitive reality behind claims of compassion and provides essential tools to challenge government abuse of the carceral state.