- - Thursday, August 20, 2015


The U.S. Department of Justice recently argued before an Idaho federal court that a law prohibiting sleeping on the streets violates the Eighth Amendment prohibition against cruel and unusual punishment.

The Justice Department’s expressed reasoning: “Sleeping is a life-sustaining activity — i.e., it must occur at some time in some place.” Hence, “If a person literally has nowhere to go, then enforcement of the anti-camping ordinance against that person criminalizes her for being homeless.”

Let’s take that reasoning to its logical extension: Another life-sustaining activity is that human beings must get rid of waste, whether by urination or defecation. Would our Justice Department also pontificate that enforcing laws against such natural human activity on city streets is unconstitutional because these laws most directly affect the homeless, who have no readily available bathroom to use?

And what about laws against fornication in public? That, too, is a natural and much-desired activity for most human beings who have reached puberty. Shall that activity also be allowed in public because a homeless couple has no home in which to make love? This is no improbable hypothetical; MSNBC pictured a husband, wife and their 18-month-old son living under the 16th Street bridge in Boise.

These public displays raise the issue of government’s right to regulate morality. As late as 1991, the Supreme Court reaffirmed the “traditional power of the States to provide for the public morals.” That ruling was consistent with our country’s Founding Fathers who, individually and collectively, without dissent said (quoting, as an example, Thomas Jefferson) “the interests of society require the observation of moral precepts.” Even one of the most liberal of Supreme Court Justices, William O. Douglas, declared “the moral well being of the community” is properly left to “legislative judgment.” The Supreme Court has many times reaffirmed that ruling, including by barring courts from “assum[ing] primary responsibility in choosing between competing political, economic and social pressures,” with courts required to “presume” the “validity” of the legislative choice. In Boise, legislators made the choice to bar sleeping in its streets. Yet, the Justice Department asks federal courts to overturn the local legislature’s exercise of judgment.

There is good reason supporting this legislative decision. The preamble of our Constitution asserts its purpose is to “insure domestic Tranquility.” Sleeping and concomitant human activities do not further that goal. Also, with that in mind, the Supreme Court has long declared that “the primary function of government is to render security to its subjects, with anything “menacing that security demand[ing] a remedy.”

Local legislatures connect sleeping on streets with crime, obligating them to provide a remedy, which they have done through this prohibition. While there are always some who will disagree, there are more than sufficient facts to support this exercise of legislative judgment. For example, one study “concluded that homelessness significantly increases the risk for indictment for violent criminal offenses.” Another study found that 71 percent of the homeless population in that study had spent time in jail. A third study, involving a Los Angeles area commonly called “skid row” because of its “sizable homeless population,” recognized that “crime and disorder have been a stable feature of skid row life, involving the common “presence of open-air drug markets, prostitution, nightly robberies, drug overdoses, theft and vandalism.” With that factual foundation to this exercise of legislative judgment, unelected courts are, as the Supreme Court has ruled, barred from second-guessing the peoples’ legislature.

What is most astonishing about this Justice Department submission is its reliance on the “cruel and unusual punishment” provision of the Eighth Amendment. When that amendment was adopted, commentators explained it was limited to preventing “the use of the rack or the stake, or any of those horrid modes of torture, devised by human ingenuity for the gratification of fiendish passion.” The Supreme Court, almost 100 years later, reaffirmed (in a unanimous opinion) that “cruel and unusual” is limited to “something inhuman and barbarous,” such as “burning at the stake, crucifixion, breaking of the wheel, or the like.” Certainly, being prevented from sleeping in a public area does not fit into those categories. And even the view of some contemporary justices, who have found it cruel and unusual punishment to extinguish a life through the death penalty, does not get near to encompassing a prohibition against sleeping on the streets.

Officers of the Department of Justice have sworn to uphold the Constitution, rather than imposing their views of what they would do if they were legislators. They seem to have ignored that oath in this submission.

Gerald Walpin served as a U.S. inspector general from 2007 to 2009. He is the author of “The Supreme Court vs. The Constitution” (Significance Press 2013).

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