by Mitch Kokai
Senior Political Analyst, John Locke Foundation
The Supreme Court just ensured that the nation’s homelessness crisis will continue.
The court declined to take up an appeal of a ruling by the Ninth Circuit Court of Appeals, covering the western United States, that homeless encampments are a de facto constitutional right.
The Ninth Circuit has a long history of reading the law as if its judges are actors in an absurdist play; in the encampment case, stemming from a Boise, Idaho, ordinance, it truly lived up to its cracked standards. The court maintained that enforcing a prohibition against camping in public places is a violation of the Eighth Amendment’s prohibition on cruel and unusual punishment.
A quick reminder. The Eighth Amendment says, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” It was adopted out of fear that Congress might, as Abraham Holmes put it, mimic the sorry experience of “that diabolical institution, the Inquisition,” or in the words of Patrick Henry, “introduce the practice of France, Spain, and Germany of torturing, to extort a confession of the crime.”
It’s a long way down from these fears to the city of Boise trying to keep the homeless from creating public nuisances and dangers.
What cruel and unusual punishments were the plaintiffs found guilty of violating Boise’s camping and disorderly conduct ordinances subjected to? Tarring and feathering? The rack? No, they were all sentenced to time served, with the exception of one of them who was twice sentenced to one additional day in jail. One of the plaintiffs who pled guilty paid a $25 fine.