SCOTUS Will Decide If Homelessness Can Be Punished

by American Civil Liberties Union

The following transcript is an interview with Jennifer Friedenbach, executive director of the Coalition on Homelessness, on At Liberty, the podcast of the ACLU. The episode dropped on April 18, before the U.S. Supreme Court started hearing the case of Grants Pass v. Johnson. It has been edited for brevity, clarity and style. 

KENDALL CIESEMIER: On April 22, the Supreme Court will hear the case of Grants Pass v. Johnson. This will be the most significant court case about the rights of homeless people in decades. At its core, Grants Pass will decide whether cities are allowed to punish people for things like sleeping outside with a pillow or blanket, even when there are no safe shelter options, posing potentially great risk to the 250,000 Americans who sleep outside on any given night.

This case comes at a time when the affordable housing market is strapped, with a deficit of 6.8 million affordable housing units needed nationwide for extremely low-income families. What’s more, according to a recent Harvard study, 1 in 4 renters, or 12.1 million households, are severely burdened by rents that take up over half of their incomes.

These millions of renters living paycheck to paycheck are at significant risk of losing their home at the turn of a rainy day, with Americans of color, disabled Americans, and queer and trans Americans at even greater risk.

With so many folks on a razor-thin edge of experiencing housing instability, all eyes are on Grants Pass. Joining us to talk a little bit more about the case and the broader systemic issue of housing instability, homelessness, and what it would take to make a meaningful dent in both is Jennifer Friedenbach, the executive director of the Coalition on Homelessness in San Francisco. Jennifer, welcome to “At Liberty,” and thank you so much for joining me.

I want to start with the case at hand, which is Grants Pass v. Johnson. It’s going to be argued next week. We’ll get a decision later this year in June.

When you heard the case was headed to the Supreme Court, what were your first thoughts? 

JENNIFER: Yeah, I was surprised and then I was really worried because the Supreme Court didn’t take this up the first time, but it’s really such a political court and [it’s] since Fox News has been kind of using homelessness as a way to try to shame Democratic strongholds in major cities that it has become so political.

And so I think that’s probably why they took it up.

KENDALL: That makes sense. Usually they like to take up things that are kind of going on in the public discourse. A discussion in this case is whether or not people can sleep outside without punishment—punishment being arrest or criminal charge.

What does that look like as it exists today? What are city governments like currently allowed to do?

JENNIFER:  First of all, not all city governments are following the law as it is, which is why there’s so many lawsuits on this. They can still do operations in terms of removing encampments for health code violations, if someone’s blocking a sidewalk, I mean, all these different kinds of things.

Really, it’s a very narrow right, but a really important right, and that is that they can’t cite or arrest people for lodging or, like, sleeping on the sidewalk if they haven’t offered shelter first. And so that really kind of creates pressure on these municipalities to address the issue instead of just kind of pushing people around and violating their rights.

So, they’re also not supposed to be taking people’s property and throwing it away. And so there’s protections that people enjoy [who] are at a point in their lives where they’re really experiencing a devastating situation where they have lost their housing—and then … city governments kind of then stomp all over them.

It feels like for homeless people to be kicked when you’re down, frankly. And so these little rights at least create a little bit of protection for them against these actions.

KENDALL:  Kicking you when you’re down is such a good way of putting it, and we see this across so many disciplines of American public policy or so many different areas that we work on at the ACLU. But I want to dig in a little bit to encampments because I think encampments have, with the pandemic and subsequent amplification of our housing crisis, grown to exist in many American cities beyond kind of historically where they existed in the American West so to speak. And as you mentioned, they’ve become this sort of political hot potato.

People are talking about encampments and city officials are facing a lot of public pressure to increasingly break up encampments. What do you make of the public pressure? Why is this happening now? What do you want people to know about the kind of pressure that they’re putting on city officials?

JENNIFER: Yeah. I mean, folks are really frustrated, right?

I mean, they’re frustrated. There’s a group of people who are completely destitute that don’t have access to sanitation, hygiene, bathrooms, water, and folks are frustrated. Nobody’s as frustrated, of course, as homeless people themselves, who are experiencing this humanitarian crisis that is hurting them and taking years off their lives.

But if people don’t have anywhere to go, it doesn’t solve the problem. And so a lot of times we have a situation with rising rents and this huge disparity between income and the cost of housing across the country, but really significant on the West, up and down the West Coast. And so when the governments come in and they say, okay, we’re just going to move people, it hurts everybody because you’re basically wasting resources that could be better spent on solutions.

It also erodes trust in city government because you don’t have a real response. You have this kind of performative fake kind of use of force but what it does do … is that it lengthens homelessness because when they take people’s property they lose their paperwork.

They lose contact with social workers that are connecting them with social workers. People get fines and fees that they can’t pay. Court dates that they miss because they don’t have an address to receive the notifications. They get warrants out for their arrests, [and it] creates this paupers’ prison in San Francisco: 40 percent of our jail population is unhoused.

And then when people have warrants, they get kicked off of public housing wait lists. I mean, it’s really something that creates this problem and it erodes trust with unhoused people who oftentimes are coming out of foster care and other institutions where they already have a mistrust.

So it really hurts everyone.

KENDALL: I mean, as you kind of described encampments, breaking up encampments is happening very commonly by city officials, but it’s not actually solving the problem. We like in America to put band-aids on issues instead of going to the root cause and trying to really do the hard work to fix the problem.

What do you think is undergirding this lack of a meaningful solution? Is it a lack of political will or is it something else?

JENNIFER: It’s absolutely a lack of political will and I think that derives from who is out there on the streets. I mean, it’s incredibly destitute people who are a class of people that are still OK to hate.

It’s very common for tropes to be put out there about this community that are fundamentally untrue. And they really kind of other people by saying that their unhoused people in their city—every city in the United States does it—[that] their homeless population came from elsewhere, when in fact, the majority of people became homeless as housed people in that particular city.

And then you have tropes around substance use and people being addicts, when in fact homelessness rarely is caused by addiction. Yet homelessness, once people are homeless for a long period of time, does increase rates of addiction because of the traumas associated with homelessness. And this whole idea that people are refusing services, when nowhere in the United States do we have a system of care that is ready for this crisis, and able to address these really deep socioeconomic disparities.

We have some huge inequities in the United States and homelessness is the visual representation of that. And for me, that’s really what brings me to the work is that you see this overrepresentation of oppressed communities. You see an overrepresentation of African Americans. Overrepresentation of members of the LGBTQ+ community. Overrepresentation of people with disabilities.

And it’s not just a little bit over. I mean, in San Francisco, African Americans are five times more likely to experience homelessness. It’s very dramatic. Members of the queer community, two times as likely. So it’s, it really is where these intersections of oppression exist.

KENDALL: Thank you for laying that out there.

I think that some folks might be listening and think, wow, this is unusual for the ACLU to be involved in this issue, to be talking about homelessness as a social problem. But I think the intersectionality that you just described is exactly why we are involved. It is something that disproportionately is impacting communities that we fight for their rights.

So whether that’s women, people of color, you named a plethora of folks. I also think that what you said about it being a visual representation of those kinds of societal problems that still exist, the hate that still exists. You also listed a number of stigmas and misconceptions about the population of people who experience homelessness.

Why do you think we still have such a stigma attached to homelessness? And really, what do we do about it? How do we chip away at the stigma?

JENNIFER: I think part of it is kind of a political construct. I mean, what we’ve managed to do is make racism, homophobia, ageism, disablism, for the most part kind of unacceptable, right?

I mean, it’s not that it doesn’t exist anymore, but there is—

KENDALL: There’s a social pariah factor to it. If you’re overtly those things, people are going to make note.

JENNIFER: Right. And so on this issue, disdain for unhoused community members really cloaks that underlying racism, homophobia, ageism, ableism.

So it creates a scapegoat for policymakers that can go unchecked. And then those misconceptions end up kind of permeating the mindset. And when you have also a response that really erodes public trust in a solution, people’s level of frustration gets higher and higher. And they get to this point where there’s nothing going to be done.

“I’m just OK with anything. Just get them out of here.” I think that’s a huge piece of it. It’s pretty deep at this point. They do scientific studies on what kind of is an emotional reaction for people and homelessness creates a disgust in folks.

How we overcome it, I think, is the same way we overcome these other issues is that we really humanize the issue and make sure that the voices of folks who are personally impacted by homelessness are elevated and are centered in our discussion. We really need to be consistent in that, and that’s a big part of what the Coalition on Homelessness does locally.

KENDALL: I want to focus on San Francisco for a second. So I’ll start with the case at hand because the Grants Pass case coincides [with] or is addressing something that another case that the ACLU of Northern California and the Coalition on Homelessness are a part of. The Coalition on Homelessness is a plaintiff in a lawsuit against the city of San Francisco.

What can you tell me about that case, how it relates to the Grants Pass case, and why you all filed this lawsuit with the ACLU of Northern California?

JENNIFER: Yeah, definitely. So for years, we were trying to work with the city to establish policies so that we have a humane and effective—that actually leads, which is also humane, to getting people off the streets, on their street response.

We got some pretty decent policies in place around bagging and tagging, a process for if you’re taking homeless people’s property because they’re not there, you bag and tag it, leave a notice, and they have a certain amount of time to come and pick it up. We have a process for leading with services and trying to get people off the streets and into shelter housing, et cetera. However, the city was not following those policies. And we basically had collected all this evidence. I mean a mountain of evidence, honestly.

We found over 3,000 cases of the city citing or arresting people without offering shelter first, massive amounts of property destruction. And what happened was, once we filed, because the city was not able to come back and correct and challenge any of that evidence, because it was all true, a judge ended up issuing an injunction against the city that basically said that the city had to follow the law.

So one of the things that we found in this process is that the city designed forms to evade responsibility for not having enough shelter beds by having this binary choice of either homeless people accepted shelter or they refused shelter, and that’s what they clicked on their forms. But at every encampment, when we gathered the evidence, they would say an encampment of 10 people and they only had three shelter beds to offer.

And then we had public officials coming forward and saying that that was a lie, et cetera. And so they were forced to do these things. Not only are people not off the streets that are just kind of moved, and trust is disintegrated.

I was at an operation not too long ago where there was an African American man who was there, who was in a wheelchair. He really wanted to get off the streets. He was elderly. He needed to get off the streets. They swoop in with this use of force. They offered him an upper bunk and a shelter. Of course, he couldn’t use that. And then they disappear.  Then that guy is left out on the streets.

So, the neighbors who are complaining about that guy being there, don’t have their issues resolved. He doesn’t have his issues resolved. And we just spent a ton of money on something that got us nowhere.

KENDALL: It seems like a lot of government inefficiency, which I think pretty much everyone can kind of buy into, “How do we make the government more efficient? How do you make local government, state governments work for you on these kinds of issues?” So this case is going on at the same time as the Grants Pass case.

The city has actually used the Grants Pass case to try to block the lawsuit. What is the interconnectedness between this national case, Grants Pass, the decision that we’ll hear in June, and how it will impact the case with the city of San Francisco?

JENNIFER:  In our lawsuit, we [actually] have 13 different claims, but this particular one around cruel and unusual punishment is one of them.

This idea that if folks have no other choice but to be homeless, then the municipality shouldn’t be able to cite and arrest them., That is one of our claims that the city is violating, and that is what’s up in front of the Supreme Court. And so if they decide to overturn it, what it means is that​​ basically the municipalities are free to cite and arrest people who have no other choice but to be on the streets.

Yeah, and that doesn’t totally kill our lawsuit, but obviously has an impact on one of our claims. And I feel like this particular right creates a pressure on the city, this idea that they have to provide at least some modicum of services for folks, that if it disappears is really a problem.

Of course the whole idea of cruel and unusual—who knows what the Supreme Court will do—but there’s a lot at stake for everybody who’s kind of protected around cruel and unusual punishment for not being punished for who they are. And so it’s like many of these things.

It really has a broad effect on everyone’s civil rights.

KENDALL: And conversely, if the Supreme Court were to decide it is cruel and unusual punishment to punish folks who are sleeping outside because they have no other place to go, that I imagine would strengthen the case that you all have existing against the city of San Francisco.

Is that correct?

JENNIFER: Yeah, absolutely. This for us is almost like a crowbar. Lawsuits take a lot of time, but what it does is oftentimes is that it forces the city to address things that they’re unwilling to address. Our vision for this lawsuit is not just about these particular rights, but it’s about getting the city to do the things that they need to do to holistically address the problem.

So, starting with an effective street response that’s based on national standards that were established during the Obama Administration, who recognized that criminalization is counterproductive. And so, we have done it right in San Francisco. We have this one model we refer to as the King Street model.

It was a large encampment of folks that had some pretty severe acuities and barriers and by working together with them and the city and with us and different folks, they were able to have their voice at the table around what was going to address their needs.

KENDALL: I want to pick up on one thread that I think we’ve been alluding to a lot in this conversation, and we’ve even addressed like the potential impacts of criminalizing homelessness. But the idea of criminalization opening up this kind of broader authority for a police force to potentially even enact brutality, I think that we’ve seen a lot.

In the past number of years, police brutality has become a very notable and seen and spoken about issue, which is great. How does the increase of criminalization of homeless folks interplay with police authority or the ability for police to use force that would then yield really dire circumstances or impacts?

JENNIFER: Yeah, the big picture is that this mass episode of homelessness is our second big mass homelessness in the United States since the Great Depression. And it’s extended for decades because we didn’t do the things that needed to be done. In fact, we went in the opposite direction and cut our housing [budget] by 76 percent at the federal level.

Then this huge humanitarian crisis is kind of laid at the feet of the municipal government, [which] has then used police as a primary response to homelessness. So, if there’s an unhoused person out in front of my home, whether I’m concerned about them and want to get them help, or I want them gone, if I call the city, they’re going to send out a police officer.

It’s about 15 percent of police calls. Because we have a large number of police officers responding to homelessness, and so just homeless complaints alone are between 70,000 and 90,000 per year in San Francisco, this creates, obviously, a huge problem in terms of the opportunity for officer-involved use of force and officer-involved fatalities.

In San Francisco, almost all of our officer-involved fatalities, along with even shootings, have been a large portion is people with mental illnesses, a large portion is African Americans, and they intersect around housing status. Almost every single one of our officer-involved shootings has been of somebody who’s out on the streets.

So it really amplifies these inequities that people face. We also have a lot of situations around illegal searches and seizures. A lot more arrests around drug arrests and possession, and all these other things that happen because there’s just this constant interface with police for folks who are out on the streets because they don’t have that protection of a door.

They don’t have their own home, and so basically everything is all kind of out in the open.

KENDALL: So much of this seems like we see various situations play out where we end up spending money kind of down the road to deal with the aftermath of a bad situation, as opposed to investing money kind of closer to before a bad situation happens. Before someone is experiencing homelessness. Before the police are called. Before addiction happens. Before all of these things that can kind of play out in this path.

I’m curious: What are you at the Coalition on Homelessness advocating for currently that really seeks to address the root causes of homelessness?

JENNIFER: Yeah, and you’re absolutely right. It literally costs more to keep people homeless than it would to just put them in housing. Most of those costs are around medical care.

Yeah, it’s really important for folks to know. Also, police and other things, sanitation, etc. But the primary is the health care costs. Homeless people present as 25 years older their calendar year. So, me as a 50-year-old woman—I’m not, I’m 57—but let’s pretend I’m 50 would present medically as a 75-year-old in terms of increased risk of diabetes rates, heart disease, all the things that go along with that responsiveness.

It really wreaks havoc. So what we’re doing at the Coalition on Homelessness, we really follow national best standards in terms of what we advocate for.  Every community can follow the same, and many communities across the country are doing this really well and having a lot of success.

But you want to right-size your system. As we talk to unhoused folks, one of the first things they’re saying in terms of what you want us to work on is, really, “[It] would have been great if I could have been prevented from being homeless in the first place.” A lot of times, it’s just a short-term subsidy.

Maybe they’re doing pickup labor and broke their arm and couldn’t pay rent. Maybe it’s a more catastrophic health issue or a longer-term subsidy through a struggle with cancer would have kept them in their housing. Or maybe they’re on a fixed income and they have a disability or they’re a senior and their rent’s rising up above their income and a little subsidy for the rest of their life would have kept them in housing.

But we really need to prevent people from becoming homeless in the first place. And then if they do become homeless and we don’t prevent it, then we have shelter so that they don’t end up on the streets. Shelter is not appropriate for everyone, but it’s appropriate for some folks, and they get in and then the negative consequences of the streets don’t affect them, but we want them to move out of shelter as quickly as possible.

You don’t want people stuck in shelter, and then you do that by having housing, and you have housing that’s affordable to them, and we don’t have to build all that housing. That’s not necessary. We should build housing, of course. We should fully utilize all our public housing stock, but we can also acquire buildings.

We can take tourist hotels and convert them into housing. We can also do subsidies in the private market where people can have support services. The person needs the extra support services with those subsidies in the private market.

So in San Francisco, for example, we’ve got some matching money from the state, and we had an initiative that we put on the ballot. That’s called Prop C. And we were able to, in a really short period of time, get about a thousand units. And then we also got almost a thousand, 994 or something, what people usually think about as Section 8s, but they now call them “housing choice vouchers” from the federal government.

We were able to get all, use all of those and get all of those folks in housing in San Francisco at our rental prices. There’s so much that can happen, that we can do to address this issue. It is going to save us money and resources. But we have to prioritize investments at the local, state, and federal level.

In San Francisco, our budget to solve homelessness is only five and a half percent of our total city budget. That is not enough. That is not nearly enough given it’s a No. 1 issue in San Francisco and in cities across the country.

KENDALL:  You sit in the kind of hotbed of this issue in a lot of ways.

I think nationally speaking, San Francisco is one of the cities that is dealing more with this kind of rise in homelessness, though it’s always existed, but I think especially being exacerbated by the cost of housing in the area, thanks to the tech boom, the runaway cost of housing has impacted. I mean, folks that are not experiencing homelessness talk about this all the time when they’re thinking about what cities to move to.

I wanted to actually bring this up to you because I do think that we see the use of homeless people as a political wedge, not just in San Francisco, but more broadly. One of the things that always strikes me as curious is that even kind of quote-unquote well-meaning, liberal folks will turn their backs on homeless people.

Here’s a name for this. People colloquially call these folks NIMBYs, or Not In My Backyard folks, alluding to the idea that once this issue impacts these people, the people that are well-meaning liberal folks, in that affordable housing is going up in their neighborhood, they protest. They fight back.

Why do you think this issue turns even the “well-meaning liberal folks” away?

JENNIFER: It’s a really good question, and I think it kind of goes back to that intersectionality and the use of people as political scapegoats and kind of really kind of bringing up the fear. For unhoused people, it’s so traumatizing to be on the streets, and their worst moments are witnessed by everybody else.

You get in an argument with your partner, everybody’s there to listen in, all these private moments are public. I think creating this situation where basically we’re creating a permanent underclass in the United States. It is really disheartening because people do feel comfortable in these forums really saying very hateful things about an entire class of people that is completely unwarranted.

KENDALL: Yeah, I mean, I think we talk about this a lot on the podcast whether it’s in regards to anti-trans bans that are popping up across the country, education censorship efforts that are popping up in community meetings and school board meetings all across the country. Folks who feel fervently and are fueled by typically fear, which, then kind of after fear becomes hate show up. They show up in numbers and they show their emotion, and sometimes they’re the loudest voice in the room.

And I think oftentimes folks who don’t feel that way don’t show up because they don’t feel perhaps as passionate about it. What can you tell folks who are listening today, and they want to do something in their local communities? What can you tell them about a good first step?

JENNIFER: Yeah, the first thing is homelessness is absolutely solvable, and we all got to feel that in our heart. I think this idea that it’s unsolvable is working against us, and that’s just not true. This is something we created by a host of really bad decisions.

So folks should, first of all, get to know your unhoused neighbors, just as you, hopefully, are getting to know your housed neighbors in the same way.

Introduce yourself. There’s a lot of individual support people can give. Be aware of those common tropes. Be active in your local neighborhood groups and when they’re coming up and they want to solve homelessness and this whole idea of we need the city to come in and call the police, push back on that and organize against it.

Bring in some friends. Get a more positive direction, because that energy that’s pushing for a negative response can be shifted towards a positive response that actually solves it. And people need to be educated that a criminalization approach doesn’t work.

Get to know what services are in your area. And, of course, make sure you’re putting pressure on all your local, state and federal electeds. It needs to be a top priority for them, and it needs to be a top priority for our state reps. And it needs to be a top priority for the people doing the local government. As we keep people homeless for longer and longer, it’s more and more expensive to solve it.

So, we need to do the work to make all these corrections, and once we do, and folks are stable, we really can see an end to homelessness in this country.

This interview is available at or wherever podcasts can be found.