Home > Journals > WMLR > Vol. 67 (2025-2026) > Iss. 4 (2026)
William & Mary Law Review
Abstract
Grants Pass, Oregon, effectively made it a crime for some of its homeless residents to sleep—a universal and unavoidable biological necessity. In a 2024 decision, the Supreme Court held that the Eighth Amendment’s Cruel and Unusual Punishments Clause posed no obstacle to this law, but it emphasized that other constitutional provisions could place important limits on how cities treat their homeless residents.
This Article argues that modern laws criminalizing sleeping— especially when no shelter is available—represent an unprecedented and unconstitutional departure from centuries of American legal tradition. Tracing the evolution of vagrancy, poor relief, and settlement laws from the Statute of Labourers through Reconstruction and the twentieth-century, this Article demonstrates that earlier responses to poverty—however punitive and abhorrent—neither criminalized the universal, involuntary acts necessary for human survival, nor banished settled residents from their own communities. The law upheld in City of Grants Pass v. Johnson breaks sharply from this history by penalizing unavoidable biological conduct and, in effect, exiling residents experiencing homelessness.
The Article contends that such laws are inconsistent with foundational principles of criminal law requiring some measure of volition and prohibiting punishment of a person for simply existing. Making it a crime for a person to sleep within a city represents a radical departure from American history and poses a serious threat to the liberties that Americans have long enjoyed.