Breaking Down Encampments: Court Finds no Right to Sleep Outdoors

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[00:00:00] Joe Selvaggi: This is Hubwonk. I’m Joe Selvaggi.

[00:00:09] Welcome to Hubwonk, a podcast of Pioneer Institute, a think tank in Boston. As tent cities filled with homeless people have spread across urban communities in recent years, elected leaders have often passed the buck, claiming their hands were tied by a 9th U. S. Circuit Court of Appeals ruling which deemed prohibitions on homeless encampments as cruel and unusual punishment.

[00:00:28] This reluctance to enforce public encampment laws has forced communities to accommodate street homelessness. and the related issues of retail theft, human waste on sidewalks, sexual violence, and overdose deaths. But in the recently decided Supreme Court case, City of Grants Pass v. Johnson, Justice Neil Gorsuch’s majority opinion made it clear that ordinances that levied fines for public camping were not enough.

[00:00:50] Wouldn’t strike most Americans as cruel, but a three justice minority disagreed, asserting that the decision to impose fines and potential jail time for those sleeping in public places effectively criminalizes the status of being homeless, thus prosecuting Americans for who they are rather than what they have done.

[00:01:08] How has the divided view of homelessness in our courts played a role in the rise of public encampments? And what effect is the Grants Pass decision likely to have? on Public Policy Makers Going Forward. My guest today is Manhattan Institute Senior Fellow and author of Homelessness in America, the History and Tragedy of an Intractable Social Problem, Dr.

[00:01:28] Stephen Eide. Dr. Eide has written extensively on the challenges of homelessness, including those imposed on municipal leadership by federal courts. He will share with us the current trajectory of homelessness in the U. S. and explain how the recent Supreme Court decision to permit local enforcement against public encampments will affect the homelessness.

[00:01:47] and our communities at large. When I return, I’ll be joined by Manhattan Institute’s Senior Fellow, Dr. Stephen Eide.

[00:02:04] Okay, we’re back. This is Hubwonk. I’m Joe Selvaggi, and I’m now pleased to be joined by Senior Fellow at the Manhattan Institute, Dr. Stephen Eide. Welcome back to Hubwonk, Stephen.

[00:02:14] Stephen Eide: Thanks so much for having me, Joe.

[00:02:16] Joe Selvaggi: Great. Well, the last time you were here, I just looked it up. It was just about exactly two years ago, and we were talking about the observations you made in your recently, then recently released book entitled Homelessness in America, the History and Tragedy of an Intractable Social Program.

[00:02:31] I learned a lot in our conversation about the causes and potential solutions for homelessness, but today we’re going to talk about a recent Supreme Court ruling. A decision Grants Pass v. Johnson, but before we dive into the issues of that case and its relationship to homelessness policy, let’s just retouch on the homelessness issue now two years later. What is the landscape of homelessness in the United States as you see it right now?

[00:02:55] Stephen Eide: Well, I think we’ve pushed out of the COVID era, which created lots of complications and homelessness in so many areas of American life. We’re beginning to reconcile ourselves to the idea that homelessness in the 2020s is probably at least as challenging as it was in 2010s.

[00:03:13] Um, so normalcy, if you will, has er Arrived, but that’s a grim prospect, the numbers are up, and so we’re trying to decide are we going to be re litigating the old debates that left us kind of stonewalled, or is there possibility for some breakthroughs here and there?

[00:03:29] Joe Selvaggi: Well, indeed, I think we may have had a breakthrough last week with a Supreme Court decision, we’re going to be talking about that decision, called Grants Pass v. Johnson, and it really relates to a town, a small town in Southern California. Oregon or Washington?

[00:03:43] Stephen Eide: Southwestern Oregon.

[00:03:43] Joe Selvaggi: Yeah. And which they were dealing with homelessness. If you will, again, I’m not presenting you as a constitutional scholar, but rather one who I’m sure followed this case very carefully. What would be, in broad strokes, what are the details of the case?

[00:03:56] Stephen Eide: Yes, well, Grants Pass is this little city that had in its code, you know, its ordinances, on the books, laws prohibiting camping in public, basically, and those laws were struck down by the Ninth Circuit Court of Appeals, which has jurisdiction over the nine western states, and their argument was that those laws violated the Eighth Amendment’s Prohibition on Cruel and Unusual Punishments, that is, The 9th Circuit ruled that it was illegal for Grants Pass or any other municipality in that jurisdiction to ban camping in public if it’s not providing some other alternative to sleeping in public. That amounted to criminal, unusual, and punishment, and as a result, in the wake of that ruling, and really in the wake of prior similar rulings, municipalities really felt kind of paralyzed as to what it could do to address this big problem of street homelessness out West.

[00:04:43] Joe Selvaggi: Indeed, so we have the courts hamstringing the, uh, the municipality’s ability to deal with homelessness based on the fact that one is homeless and to give them a fine or lock them up is cruel and unusual. As you mentioned, it first faced a federal district court and then to the Ninth Circuit Court of Appeals, so it was a big case. I don’t want to put words in your mouth, but did this victory, at least at that level, at the lower courts, effectively establish a right to sleep in public?

[00:05:07] Stephen Eide: Well, that was certainly what many localities said.

[00:05:11] One thing that was striking about this case is how many governments filed amicus briefs with the court, urging them to take up the case, and after it took up the case, claiming that this was just unworkable. Officially, the 9th Circuit said, well, if you provide adequate shelter, you can still enforce the laws.

[00:05:28] All these governments, and I stress this is the West Coast, so these are Democrats, right? So, Governor Gavin Newsom, the mayors of Los Angeles, San Francisco, we’re all saying we cannot respond to our constituents demand that we address homelessness under this legal regime that the Ninth Circuit has put in place.

[00:05:45] In practice, that’s what they were saying. We are paralyzed. You seem to be saying that people just have a right to sleep in public wherever they want. We’ve invested, you know, hundreds of millions of dollars, billions in homeless services. You’re effectively saying that’s not enough. What would be enough? Are we just supposed to go bankrupt on the way to providing enough shelter and housing for people so we can enforce our laws? In practice, yes, that was the result, and that’s why the Supreme Court ultimately just had to get involved here.

[00:06:11] Joe Selvaggi: All right, but let’s dwell on the past and say, okay, we arrived here at an inflection point, but to get here, what is it about the notion of the Eighth Amendment prohibition against cruel and unusual punishment? What precedent was it that set this idea that the court to essentially fine someone for being homeless, while being homeless, for the act of being homeless? Why is that cruel and unusual? What is it about that?

[00:06:36] Stephen Eide: Yeah, well, there were these cases early in the 60s, Robinson v. California, which is the important one, that pertain to a law that California had on the books about prohibiting being addiction. It’s illegal to be addicted to drugs. And the court, that time, said, you can’t do that. That is a status, and you can’t criminalize a status. If you had criminalized using drugs, that’s okay. Possessing drugs, that’s okay. Those are acts, but you cannot criminalize a status. And the court then, in another ruling, tried, some people tried to push to extend that rationale to acts that flow from a status.

[00:07:14] This particular case was Powell v Texas, and it concerned a guy who was Said he had, he was an alcoholic, so he had to drink and he had to do it in public, but this, the court actually struck, ruled against him in that favor. Those were the big cases. These are, these are ancient cases, like no Americans know about them, and certainly people on the West Coast have no idea how much Robinson v California and Powell v. Texas has to do with their quality of life. Those were specifically the ideas, the doctrines, the rulings that were really at the core of this case, Chris Pesce Johnson.

[00:07:46] Joe Selvaggi: So, okay, so this is probably a difficult concept for our listeners to process, which is one cannot constitutionally make someone’s status illegal, I don’t know, being too tall or something, some immutable characteristic about an individual. But, of course, we can criminalize acts, and that line between what’s status and what’s an act is a fine one. As you mentioned, if you’re an alcoholic, you can criminalize drinking in public, but you can’t criminalize being a drunk or whatever euphemism we want to use. So, in this case, the parallel here then, of course, is homelessness.

[00:08:18] There’s a difference between one who doesn’t have a home, that’s their status, and one who sleeps outside in a, you know, in a car, right? In a sense, that’s an act. They’re not being prosecuted for lack of a home, but rather for sleeping outdoors. Do you want to say more about where that line has historically been drawn or anything more about that?

[00:08:36] Stephen Eide: Well, I mean, if I can get into a little bit how Justice Gorsuch, Thought about this. He wrote the majority opinion because I think it helps clarify this argument. He really did not like the, there’s this, he flirted with the idea that maybe Robinson Valley, California was not a great idea to begin with.

[00:08:51] And in fact, Justice Thomas wrote a separate opinion claiming just that. But Justice Gore said, okay, just working with this, the Cruel and Unusual Punishments Clause is supposed to be about punishments. What comes after Someone breaks the law. It’s not supposed to be about whether or not a specific law can be in the books.

[00:09:10] We have other constitutional provisions that determine whether something can be criminalized at all. The First Amendment, the Fourteenth Amendment, Eighth Amendment are really just about punishment. So what we really need to be thinking about in this case is whether these punishments, these fines, and being barred from parks if you’re caught repeatedly, Camping in public places in Grants Pass, is that a constitutional violation?

[00:09:32] And he really did not like the idea, he thought it would just expand it in all kinds of dangerous directions, and that’s why he wanted to really keep the lid on things and overrule the Ninth Circuit’s rulings.

[00:09:43] Joe Selvaggi: Really, again, I think Justice Gorsuch, and we’ll get to that a little later, probably sees the world a little bit more like the way you, or perhaps I do, and less like the way the precedent in the Robinson case, but I want to unpack this idea.

[00:09:55] If I’m homeless, how I want to make the case that it’s a necessity, it’s involuntary in a sense, it’s a necessity. I’d love to have a home, but I can’t. I wish I could, but I don’t. How do we, in a sense, or how has the courts, or how have municipalities defined the necessity of homelessness? Rather, one can voluntarily choose to be homeless, and one’s less sympathetic to those people.

[00:10:15] And your book very clearly says there’s no one group called homeless. There’s all of them. A myriad of reasons why someone is homeless. Let’s just take this argument at face value. If I wish I could find a shelter and there’s not enough room in the shelter, doesn’t that make me involuntarily homeless and therefore, in a sense, I, out of necessity, need to be a homeless person?

[00:10:34] Stephen Eide: Well, in principle, I suppose, but it’s This is where I think the perspective of these cities and municipalities kind of is helpful to bring in because they’re saying like, I don’t know what any of these people’s story is, okay? The difference between whether or not that particular case you laid out applies to 30 people versus whether it applies to 600 people is huge from my perspective to provide for people.

[00:10:59] Uh, I don’t know if it’s practical for me to do a sort of, you know, Take testimony from every single person who is in homeless to do some sort of evaluation before I decide whether or not I can force a law against them. People have all kinds of stories. Some people are local, some people are not. Some people have family members that they could live with under certain conditions.

[00:11:19] Some people just have no options whatsoever. The government is just going to have to provide for them for the rest of their life. Certainly, it is impractical for courts to be involved in making those decisions. It’s hard enough for municipalities. to be involved. This came up in this particular scenario that you question that you’re honing in on came up the question of whether or not this should be even a class action matter because some of the people the plaintiffs who were involved in this case or past cases such as the Boise v. Martin case Which is another night in a certain case that was very similar. They weren’t residents of the community. They were, they came into the community here and there. And yet they were suing this particular community based upon the unconstitutionality of their ordinances. So on the ground, this is obviously very complicated.

[00:12:03] This is messy to sort through. But as a result, one might argue that it’s just that type of issue that localities should be really empowered to address through the normal democratic process without federal court oversight.

[00:12:17] Joe Selvaggi: Yeah, and one of the things I was getting at, again, what I read about and looking at the history of this, digging more deeply, is there was a defense saying, as you mentioned, 600 homeless people in a town, if there’s only 570 beds, in theory, 30 people don’t have homes if they wanted them.

[00:12:32] Ergo, everybody’s homeless involuntarily. So, it confers a status to everyone, regardless of how each individual person is perceived. Arrived at their lack of a home. What I’ve read is that because of this lack of enforcement, and we’re going to talk about more about this later, in those towns where it was deemed, let’s say, beyond the reach of municipal leaders to essentially fine or jail people sleeping in homeless in public because they were entitled to these homeless camps, the homeless shelters emptied out and more people, potentially the effect was to have everybody run out and live on the streets.

[00:13:08] You’re an expert in this area. Why would someone choose to be homeless when there’s shelters available? You know, this is maybe not germane to legal issue, but you’re the expert in homelessness. Why would that happen?

[00:13:22] Stephen Eide: I’ll give all kinds of reasons. Um, pet ownership has become more normalized among the homes.

[00:13:28] My impression is that back in the 80s, you didn’t see as many homeless people with pets, and somewhere between then and now, it just became the thing to do. And this is not a good idea. For many reasons, your upward mobility options are going to be really unlimited. Nonetheless, they’re very insistent about their pets.

[00:13:44] This creates all kinds of problems for shelter management, not just keeping everyone from being at each other’s throats if there are like all kinds of pets involved, who’s looking after these dogs, but that’s one thing they will insist on. Sometimes they will say, well, I want to be with my partners. And homeless, when you’re running in shelter management, another shelter management one on one question, you kind of need to keep males separate from females and certainly single adults separate from families, but then they’ll say, no, we got to be sheltered together.

[00:14:10] And if there’s no option like that, and in many communities with just like one shelter or something, that’s not going to be an option, okay, I’ve got to sleep out. They will say, I’m not, I don’t feel safe inside a shelter, even though, just objectively speaking, you will always be safer inside a shelter than on the streets where you have no protection whatsoever.

[00:14:27] And then all kinds of mental health issues. Things people will cite. Serious mental illness and homelessness, that is a very important issue, very important connection there, but vaguer mental, well, I just need privacy. I can’t sleep in a big room with a bunch of other guys in bunk beds. I need my other room, otherwise, deal breaker.

[00:14:42] So there’s really a whole litany of reasons that Why people say, I need this shelter of this specification, this points towards what would be just absolute unaffordability in terms of cost for a city like Grants Pass. 40, 000 people can’t build a shelter program for every single person. So, this is policy.

[00:15:01] We have to work in generalities. We can’t wait to satisfy everyone, every last person’s shelter specifications until we can begin to force common sense into encampment ordinances.

[00:15:11] Joe Selvaggi: Yeah, and to talk about, further about the blurry line of what is a homeless person, people sleeping outside where they shouldn’t be even includes very different groups with different motivation, even campus protesters. Can’t some of the logic in these earlier decisions even extend to them? In other words, if one can sleep outside for any reason, then that includes being a student protester. Is that fair?

[00:15:33] Stephen Eide: Well, another person who the case of student protesters was on his mind was Justice Gorsuch, who specifically cited that case in his opinion, and that was why he said Grants Pass’s ordinances are not, they don’t criminalize status because they could apply to people with all kinds of different statuses, including backpackers and campus protesters. So, absolutely, that would apply as well.

[00:15:56] Joe Selvaggi: Yeah, so again, I alluded to it a little bit earlier, but you’ve talked as a homelessness expert, you’ve seen sort of the evolution, you made a reference to the impact of COVID, we talked about that in our last conversation, but you’ve seen sort of the long arc of homelessness rise and fall, as it were. What has been the effect of, let’s say, the precedent of essentially the courts forbidding municipal governments from clearing these encampments? To date, you know, does it have the effect of stabilizing homelessness or does it make it shrink or grow by hamstringing municipalities from clearing them away?

[00:16:35] Stephen Eide: Yes, well, there was this, as I alluded to earlier, there was this very similar decision the 9th Circuit handed down called Boise v. Martin that came down in 2018. Since 2018, in the 9th Circuit, in the 9 states in the 9th Circuit, homelessness and street homelessness increased 40%. So, it got way worse by any objective measure, and just talking to people who live in California, if you ask them.

[00:16:56] So, as street homelessness got worse, or, no one would say street homelessness got better in California over the past 10 years. Five years. So there was that. There was also that factor of the declining interest in, in shelter, declining shelter demand. As you noted, one of the most interesting amicus briefs that was filed in the case of Grants Pass was filed by the local shelter, the local rescue mission in Grants Pass, which stated since public camping was essentially authorized, we’ve experienced a 40 percent drop in demand for our shelter. So if you accommodate street living in a place with decent weather, people will, it turns out, take you up on that. And so, in rather predictable ways, homelessness did worsen since this, since the ninth circuit regime was put in place and then became just more and more tighter and more dominant.

[00:17:44] Joe Selvaggi: I can imagine some of our listeners saying, well, it sounds like you guys are completely, you lack any compassion for these homeless people. If they want to live outside and they think that’s better than living in a shelter, why not do that? Why do you need to fine and jail these people? Share with our listeners, what is life like? You kind of alluded to it earlier. If I live in an outdoor encampment versus a homeless shelter, how is my life different, better or worse?

[00:18:11] Stephen Eide: Well, certainly, you have no protection for other people who are trying to prey on you, and as it happens, there’s a lot of predatory behavior and victimization that happens in encampments in the West Goods. Very high rates of sexual assault, very high rates of just being robbed, and also violence. The There’s Clearly a close connection between the soaring rates of fatal overdoses and street homelessness.

[00:18:35] Homeless encampments are just known as places where it’s easy to find, uh, acquired drugs. Around the homeless encampments, the streets are notoriously covered in used needles and other drug paraphernalia. So if you’re in the market, that’s an easy place to find. What you’re looking for. Retail. America has this big, it’s really sad what’s been happening to retail in America over recent years.

[00:18:55] And that has a few factors, but store owners are absolutely up against it in West Coast communities when they have people just living on the sidewalk outside their storefront and they’re touring away what few customers. They have left. So, there’s been this kind of, with the normalization of encampment life, we’ve seen that’s coincided with increased criminal activity, in some ways, certainly, fatal overdoses, big impact on both residents and also businesses, and I haven’t even mentioned the fatal, sometimes, disease outbreaks, really weird, like medieval diseases.

[00:19:29] have been outbreaks in certain west coast encampments. People come by and they give people food and so then what happens to the trash? Well, it just sits out there so it attracts like rats and everything and so just imagine living next to one of these places and that’s been the reality for too many residents and businesses out west.

[00:19:47] Joe Selvaggi: Indeed, one doesn’t have to imagine. We’re going to talk about it in a bit. I’d like to ask you about Boston and our progress in this issue of mass and caste, these kinds of issues. But of course, I’m glad you point out the fact that it’s not merely a miserable place for the homeless, the homeless themselves living in these camps, but of course for retail, but of course residents.

[00:20:03] I imagine that somebody who’s a mobility impaired, they can’t get around the sidewalk, or children, my God, you know, if they’re, you know, what they may see and the impact that will have on them. In reading the Gorsuch, we’re going to get to the finding, and he makes many references to the fact that this is largely It references West Coast cities, West Coast problems.

[00:20:24] Those of us who live on the East Coast and the West Coast, we see sort of a similarity in, in our, let’s say, political preferences. Both cities and these states are skew left, more progressive leadership. Why is it that the West seems to wrestle with these homelessness issues? To a greater degree. We have it here in Boston and New York and Philly and DC, but why does it so bad? I’ll just throw out this statistic. I read that. Um, California is 10 percent of the country’s population and 30 percent of the country’s homeless population.

[00:20:52] Stephen Eide: What’s going on? Why? Yeah, half the street homeless population. Yeah, um, well, I mean, you know, the weather, there’s this connection between weather and also investment in shelter, meaning temporary, uh, housing.

[00:21:04] Um, you know, the more punishing January temperatures in places like Boston, Philadelphia, and New York seems to have an effect on keeping the lid on street homelessness. You have a significant homeless population in places like New York and Boston, but it doesn’t, uh, allow the street population to spread.

[00:21:24] There may also be a way in which there are just these kind of traditions of enforcement that lurk just slightly below the surface in these otherwise progressive cities. I mean, New York, even under de Blasio, who is a very progressive mayor, they were quite firm about not letting encampments spring up. Every time some little encampment sprang up, the New York Post coverage swarmed. That was done, um, in a couple of days. Um, there’s also a way in which the homelessness out in the West, it’s spread everywhere. It’s dispersed. It’s just, you know, you’ll see tents popping up in the most. Random places. Whereas the fact that Boston, you really had this controversy of this one place, Madison Cass, in New York City it’s also concentrated too in Manhattan and the subway system.

[00:22:07] You know, the beaches in Long Island or, you know, Martha’s Vineyard or something. You don’t have like people living there. California, that’s Something that does, you do see. So, it is a, it’s a different challenge. And then the last point to emphasize, and I touched on this earlier, you see more investment in, in shelter, temporary housing, although that, that, that relates to the weather issue because it’s harder to get people to go into shelter in the West Coast because you’re competing with California weather as opposed to Boston in January.

[00:22:37] Joe Selvaggi: Indeed, our curse is also our blessing with regard to this particular issue. So, let’s jump to the finding of the case we’ve mentioned a couple times. Grants passed, it was the majority was, opinion was written by Justice Gorsuch. It was a pretty long decision, I think it was 42 pages, and it seemed to my reading to show genuine compassion for the challenges of the homeless and a reluctance to sort of have the courts solve things.

[00:23:01] You’re the expert in homelessness. In reading that decision, I joked before we recorded that he must have read your book, but it seemed to me it was a well-informed decision. As an expert in homelessness, did the opinion, the majority opinion, reflect an informed view of homelessness?

[00:23:19] Stephen Eide: Yeah, I think so, you know, that he made, he used the term, like, you know, tool, the toolbox, that this is one tool among many.

[00:23:26] I’ve studied homelessness in a number of cities. I try to talk with service providers and people working on this issue on the ground as much as I can. And the normal situation is not to have law enforcement be the only solution. Like, it’s particularly in the West Coast where you’ve seen just historic investments.

[00:23:43] And homelessness programs, it’s not just, we’re not trying to wrest our way out of homelessness. That’s not what this is about, but whether or not police, law enforcement can be one tool in the toolbox, that’s an appropriate response to homelessness, especially given the complexity of the issue. And that is what the Ninth Circuit had denied me.

[00:24:03] denied municipalities. So that’s, I think, the right way to think about it, as well as whether or not judges have any kind of confidence to sort through whether or not there’s enough shelter in a particular jurisdiction is the also crucial issue that only the Supreme Court is going to be able to provide a definitive answer to.

[00:24:20] What we really need to get a clear answer to that, and I think we got it.

[00:24:24] Joe Selvaggi: I don’t want to pin you down on a particular illegal concept, but we talked about the basis for let’s say the Ninth Circuit view of Grants Pass saying that Grants Pass didn’t have the right to impose fines and jail on homeless.

[00:24:37] This decision overturns that decision. We said the earlier decision in the Ninth Circuit was rested on you don’t want to have cruel and unusual punishment or criminalize the status of homelessness. You don’t have to go too far down sort of legal analysis, but what did Gorsuch say regarding those two issues?

[00:24:55] Did he essentially say they don’t matter, or he’s, he believes that fines are not cruel and unusual, and that this doesn’t criminalize status, but rather the act of sleeping in public. What would you say?

[00:25:09] Stephen Eide: Yeah, I mean, he was specifically evaluating Grants Pass v. Johnson, though the Boise v. Martin ruling was in the mix, because the reasoning was almost exactly the same.

[00:25:18] Grants Pass was more about fines than Boise v. Martin, but very similar. He said that generally applicable public camping laws are fine, they don’t violate the Cruel and Unusual Punishments Clause, so that would also render Boise v. Martin type reasoning in question, because that was at the core of that decision for listening.

[00:25:38] Joe Selvaggi: So, the dissent was written by Justice Sotomayor. I guess this one, unfortunately, I don’t like to see those kinds of divisions, but it seemed to fall down along ideological lines left and right. We had six Republican appointed justices agreeing with Gorsuch in the majority and the three democratically appointed, Democrat appointed justices agreeing with joining Sotomayor’s, Justice Sotomayor’s dissent. What was her beef with the majority and what can you say about that?

[00:26:05] Stephen Eide: Yeah, I mean, and quickly on that partisan point, it is disappointing. The justice that I actually pay attention to somewhat in these splits is Justice Kagan. So if there’s anything, anyone left who may be considered the center left type, I think Justice Kagan sometimes has that reputation.

[00:26:19] So it would be interesting to me if she you. You know, cited more often with the conservatives, but yeah, we seem to be settling into this very strict liberal versus conservative split. And so you had these three democratic appointed justices who looked in from a political lens were far to the left of mainstream democratic opinion in California.

[00:26:37] I mean, far to the left of Gavin Newsom, the mayors of San Francisco and in LA on this issue. So it really tells you where the judiciary is at compared to what the political elected democratic class is at. I think, you know, she, she, she. Supported the Ninth Circuit’s reasoning that they’re just, this is an act that flows from a status, they can’t help it, it’s involuntary, where do you expect these people to live?

[00:27:04] What do you expect them to do? And so this is an argument that we’ve heard many advocates make in many different contexts. And, and she was persuaded by it.

[00:27:14] Joe Selvaggi: Yeah, indeed. And I’ll say, okay, from the, yeah, you say this is further to the left than even sort of the Gavin Newsom’s of the world. But I’ll say, I, to my, I don’t want to call them my right, but my libertarian friends were also somewhat uncomfortable with this decision because in their mind, you know, in this sort of It’s a battle between individual rights and the rights of the state.

[00:27:32] This seems to be resting some of the individual prerogatives to, frankly, sleep in public on the ground, versus the rights of the town to manage and mitigate those things. To my reckoning, though, by taking the power effectively away from the courts, And giving it to the states, that seems to be a step in the Democratic direction.

[00:27:50] Is that fair? I mean, you know, it’s not sort of a victory for the state, but it’s sort of a defeat for the courts to impose their priorities on individual towns and cities.

[00:28:01] Stephen Eide: Yeah, Justice Gorsuch was very clear that nothing in this ruling would prohibit a city from just accommodating public camping or accommodating in some place and not other places.

[00:28:10] It’s up to you.

[00:28:11] Joe Selvaggi: Right. I don’t want to just glaze over that point, because I think it’s very important to note this. If a town leader, a duly elected town mayor or whatever, wants to say, look, that’s great, now I have the prerogative to fine or put in jail people in homeless encampments, that It’s still my prerogative as a leader, elected leader, to let them, let it ride.

[00:28:32] You can, as a leader, allow encampments all you want. It says no bearing. It’s not a mandate to manage homelessness. It’s a prerogative to manage homelessness. Fair enough?

[00:28:43] Stephen Eide: Yeah, absolutely. And that’s what we’re going to see playing out. It’s also a question of resources. You know, you need The way that LA in particular does it, lots of police, lots of sanitation workers are required to the point where they actually have to ration cleanup resources, so whether or not they’re going to be re evaluating all that is something that we’ll have to watch.

[00:29:02] Joe Selvaggi: Okay, so let’s, we’ve been talking in general terms of what’s going on in Washington, D. C. or on the West Coast, but as you mentioned, last time we spoke, we were talking about, a little bit more about Boston. It was the height of COVID, but we had a lot of homeless people, everything, public policy was fairly chaotic then, and you mentioned a few times this phenomenon we have here in Boston, the homeless encampment on the intersection of Massachusetts Avenue and Melania Cass Boulevard, which we Affectionately referred to as Mass and Cass.

[00:29:30] It’s now two years later. You have been an observer of Boston and what’s been going on here. How would you report? How are we doing managing our encampments and effectively the safety of those Bostonians that are living such a dangerous life?

[00:29:46] Stephen Eide: Yes, well, I, I dipped in and out of the Massencast saga over the years, and I am not nearly as informed, particularly, I did drive through, I was visiting a, as I mentioned, I like to visit lots of service providers, and I happened this past January to be visiting a recovery program in that area.

[00:30:05] It’s called Phoenix, I believe. And so I drove through that intersection and was struck. Again, this was deep January, maybe not the best test time to look at it, but certainly looked a lot better than the pictures that I had seen from previous summers. Um, uh, I, I think that Boston now, although it was not in the Ninth Circuit, I can’t remember which circuit Boston’s in, but this, so this ruling never directly applied to Boston, I think very clearly any general counsel of any mayor anywhere in America is going to feel much more confident advising that particular mayor that we can take action before we’ve invested lavishly in him.

[00:30:50] All other sort of solution to address some behemoth encampment that the public is demanding action on. The Supreme Court has said, it’s okay, you can do this. So I think in a post Grants pass world, it’s more likely that mass and caste is not going to spiral out of control like it did during the deep COVID years.

[00:31:11] Joe Selvaggi: Again, you’ve anticipated my running out of time. My last, nearly last question is, now that this is the law of land, this decision was handed down the 28th of June, recording in July 3rd. Now that this has been handed down, you’ve mentioned, of course, Boston perhaps will see itself as having a freer hand.

[00:31:29] Do you think that these places that do have much larger population than Boston? Challenges with homelessness will, in a sense, pivot and more aggressively enforce public encampment rules now that this is the law of the land.

[00:31:44] Stephen Eide: Particularly with the tents. Yeah, the tent is just such an iconic image in California.

[00:31:50] There are a lot of other problems. I’ve been to California in, I’ve been to places in California post and encampment cleanup and there’s, it’s, they still can look rough around the edges. Drug decriminalization, the normalization of public drug use is something that California and Oregon, they’re very much debating right now.

[00:32:09] Okay, we don’t want to go back to like We don’t want, we want to draw back the use of incarceration for drug use, but at the same time, we don’t want to completely legalize or even decriminalize hard drugs. What does that mean for something like public drug use? So people like using fentanyl in your face in public.

[00:32:26] That is something that is related to the tent public camping issue, but it’s not legally speaking the same question. So, in a way, we might see more focus on those types of questions as publics in Western states continue to push for improvements in quality of life.

[00:32:41] Joe Selvaggi: Indeed, they’ll be able to better tailor their solutions to their particular problems and the particular problems of the individuals within those encampments who are taking those drugs.

[00:32:51] People have lost their way. So, we’ve run out of time. I read your most recent piece. I think it was released the same day as the ruling, almost the same day in the Wall Street Journal. I thought that was a terrific piece you wrote. Where can our listeners find your work or start following your writing on homelessness?

[00:33:06] Stephen Eide: Our website is manhattaninstitute. The Manhattan Institute for Policy Research.

[00:33:11] Joe Selvaggi: Wonderful. Okay, Stephen Eide from Manhattan Institute. I appreciate you for joining me on this issue so quickly after the decision. I’m glad. I think, I think the world got a little bit better. To be a little bit better placed with this ruling, I appreciate you coming in and helping our listeners understand the significance of what the majority found. Thank you for joining me.

[00:33:31] Stephen Eide: Thanks so much for having me, Joe.

[00:33:36] Joe Selvaggi: This has been another episode of Hubwonk. If you enjoyed today’s show, there are several ways to support Hubwonk and Pioneer Institute. It would be easier for you and better for us if you subscribe to Hubwonk on your iTunes Podcatcher. It would make it easier for others to find us if you offer a five star rating or a favorable review.

[00:33:52] Of course, we’re grateful if you share Hubwonk with friends. If you have ideas or comments or suggestions for me about future episode topics, you’re certainly welcome to email me at Please join me next week for a new episode of Hubwonk.

Joe Selvaggi speaks with Manhattan Institute Senior Fellow Dr. Stephen Eide about the Grants Pass v. Johnson Supreme Court decision and its impact on homeless encampments in Boston and across the country.


Stephen Eide is a senior fellow at the Manhattan Institute and contributing editor of City Journal. He researches social policy questions such as homelessness and mental illness. His first book, Homelessness in America: The History and Tragedy of an Intractable Social Problem, was published in June 2022. He was previously a senior research associate at the Worcester Regional Research Bureau. Eide holds a B.A. from St. John’s College in Santa Fe, New Mexico, and a Ph.D. in political philosophy from Boston College.