A brief filed by Idaho, Montana, and 22 other states in support of the petitioners in Grants Pass v. Johnson cited the work of early republic historians about carceral responses to poverty, and used it to support strong local-level interventions. They rested their arguments on the historical powers of overseers of the poor, justices of the peace, constables, watchmen, and sheriffs. The texts the petitioners and amici cite very clearly list the damage caused by vagrancy statutes and poor laws. But the petitioners have leveraged them to claim a right to police power: “Since the Founding,” they wrote, “states have been able to criminalize ‘wandering about the streets without a house’ and similar conduct . . . Many States and localities have considered criminal provisions to be necessary in addition to more humanitarian efforts like providing money, jobs, and housing to the homeless—measures with an equally long historical pedigree. If the Ninth Circuit’s approach is affirmed, States will be deprived of a valuable tool to combat the public harms associated with homelessness, one they have wielded for as long as they have existed as sovereigns.”
One could argue that they’re reading the history correctly: These powers have historically existed for municipal governments to police, incarcerate, and deport unhoused people. But these powers have been gradually rolled back since the Supreme Court declared vagrancy laws unconstitutional in 1972 in Papachristou v. Jacksonville. It is obviously inhumane to arrest and jail a person who cannot afford or locate a public shelter for being unhoused, as the Ninth Circuit court found in Martin v. Boise in 2018. The court’s framing involves highly selective readings of the historiography and a willful misrepresentation of history, as several amicus briefs submitted to counter the petitioners argued: “The City and its amici invoke history and tradition to justify the Ordinances, but that effort is unjustified and self-defeating . . . . From their very inception—in both their purpose and application—vagrancy laws have functioned in ways that offend our evolving standards of decency, liberty, and equality. [The court] should instead reaffirm that there is no safe harbor to be found in the abhorrent and painful history of vagrancy laws in the United States.”
There is an abundance of data from the nineteenth, twentieth, and twenty-first centuries gathered by scholars as well as activists and policymakers that shows that criminalization of homelessness does not prevent people from becoming unhoused. True anti-poverty programming and direct survival assistance does that. If the goal of the amici curiae in this case is to prevent the “crisis of homelessness” from worsening, and relieve both the individuals experiencing homelessness and the governments and agencies responsible for helping them, clawing back the municipalities’ police power in this case is not going to achieve that goal.