Evolving Standards of Decency: Anti-Homeless architecture and the Eighth Amendment
By Ezra Lee
While the average person spends roughly a third of their life sleeping, or at least trying to do so, sleep medicine remains a relatively new and undiscovered field. Despite being in its early stages, over the past two decades, one thing has become clear about sleep: a sufficient amount is necessary for a healthy life. Without proper sleep, the risk of developing disorders including hypertension, obesity and type-2 diabetes, cardiovascular disease, and impaired immune functioning increases drastically.
At the same time that proper sleep has become a more salient public health concern, so has the rise of anti-homeless architecture. With homelessness in the United States rapidly increasing - over 18% between 2023 and 2024 alone – the prevalence of anti-homeless architecture has increased, as cities seek to preserve a “clean” public image. One of the primary ways of doing so has been creating structures that make it more difficult for homeless people to access places to sleep. From adding “armrests” in the middle of park benches to spikes on sidewalks, efforts to prevent homeless people from sleeping in busy areas have become a serious moral and social issue. As the Executive Director, Jennifer Goold, of the Neighborhood Design Center – a nonprofit organization committed to helping underserved communities – has said about anti-homeless architecture, it “privileges one user over another by trying to create a scenario that will exclude a non-preferred user or behavior. It withholds an element of protection from particular users.” This mental harm of social exclusion combined with the physical impacts of less accessibility to sleep creates a physical and psychological threat to homeless people.
While homelessness has long been viewed as a public health issue, with recent psychological research showing the importance of sleep for mental and physical well-being, the issue has evolved into a potential legal issue under the 8th Amendment standards for cruel and unusual punishment and the doctrine of evolving standards of decency. Before the emergence of this doctrine, the 1910 Supreme Court Case Weems v. United States notably brought the understanding of cruel and unusual punishment beyond standards of “inhumane and barbaric punishments” to include those that are excessive. Nearly half a century later, in 1958, in the case of Trop v. Dulles, Chief Justice Earl Warren wrote that “The Court recognized … that the words of the [Eighth] Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” While this is a constitutionally fascinating statement – viewing the U.S. Constitution as a living reformist document – it has profound implications for how courts might address anti-homeless architecture in the United States.
A notable 2024 case in Grants Pass, Oregon, City of Grants Pass v. Johnson, revisited the 2018 decision in Martin v. City of Boise, which had held that “the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.” City of Grants Pass v. Johnson shifted the momentum of the 2018 case by ruling in a 6-3 majority opinion that “the enforcement of generally applicable laws regulating camping on public property does not constitute 'cruel and unusual punishment' prohibited by the Eighth Amendment.”
This shift raises an important question: what were the shortcomings in Martin v. City of Boise, and why could future cases have different rulings under “evolving standards of decency?” One major issue stemmed from the indeterminate language in Martin, which resulted in major difficulties in the application of the policy. The role of courts interpreting and legislators defining what cities would quantify as “involuntarily homeless” or what “adequate shelter” would look like, and further implementation by agencies proved to be one of the most significant shortcomings of what otherwise was a movement towards protecting homeless citizens. Critics of Martin further noted that the “judicially created standards” under Martin v. City of Boise “have proven unworkable and have interfered with local efforts to address homelessness, ultimately undermining the democratic process and federalism principles.” The oversimplification of homelessness, insofar as it assumed shelter beds to be universally accessible and failed to address the root causes of homelessness, further showed the shortcomings of Martin v. City of Boise. These concerns underscore why and why not cases relating to homelessness can be interpreted under the Eighth Amendment: while the amendment provides a framework for protecting human rights, its application to systemic social issues remains deeply contested.
In City of Grants Pass v. Johnson, Justice Neil Gorsuch argued that “the Eighth Amendment’s Cruel and Unusual Punishments Clause has historically focused on what punishments may follow a criminal conviction, not on what behaviors a government may criminalize.” Under this originalist interpretation, it would be difficult to argue that homelessness itself should not be criminalized under the Eighth Amendment — which was the core question in Grants Pass— and even more challenging to suggest whether certain architecture should be prohibited. Where Martin reads an expansive image of the Eighth Amendment, arguing that homeless people cannot be punished for their condition, Gorsuch returns to a restrictive view of the Eighth Amendment, working to return authority over homeless laws to locals. However, an earlier case significantly broadened the scope of this issue. In Robinson v. California (1962), the court held it unconstitutional under the Eighth and Fourteenth Amendments to imprison “persons afflicted with the 'illness' of narcotic addiction,” reasoning that such punishment constituted “cruel and unusual punishment.”
Looking finally to Jones v. City of Los Angeles (2006), a case where six homeless people were arrested for sleeping on the streets when they had no access to a homeless shelter, the court ruled that, due to their involuntary status as homeless people, it was unconstitutional to punish them. By ruling in favor of the plaintiffs, Jones established a standard protecting those who are involuntarily homeless.
With an evolving understanding of the necessity of sleep, the expansion of “evolving standards of decency," and prior rulings addressing involuntary homelessness, the growth in the use of anti-homeless architecture – which prevents homeless people from sleeping – could be viewed as cruel and unusual punishment under the Eighth and Fourteenth Amendments. Drawing from similar precedents such as Jones v. City of Los Angeles, Robinson v. California, and Martin v. City of Boise, it becomes clear that, for individuals experiencing involuntary homelessness, actions to criminalize and obstruct the basic well-being of these people can be understood as unconstitutional.
