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PaperclipPerfector  12d ago (text post)   25270 thread views

Culture War Roundup for the week of April 22, 2024

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Robinson should just be overturned in its entirety, sidestepping all this. The Cruel and Unusual Punishment clause is about the penalties which can be imposed for lawbreaking, not about the actions which can be forbidden. There's nothing about status or conduct in there. But the court is too conservative to overturn bad non-conservative precedent (except on abortion)

In this Court counsel for the State recognized that narcotic addiction is an illness. Indeed, it is apparently an illness which may be contracted innocently or involuntarily. We hold that a state law which imprisons a person thus afflicted as a criminal, even though he has never touched any narcotic drug within the State or been guilty of any irregular behavior there, inflicts a cruel and unusual punishment in violation of the Fourteenth Amendment. To be sure, imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the "crime" of having a common cold.

I think the proportionality argument is pretty solid, even though it doesn’t give us a hard limit.

Even one day in prison would be a cruel and unusual punishment for the "crime" of having a common cold.

Who made this argument? I'm not generally of a "it's just like the common cold" take on the pandemic, but I'm assuming a SCOTUS justice would at least see the parallel hypothetical about house arrest for (potentially) having a contagious disease. If nothing else, it seems like an interesting set of tea leaves to read about how future cases might go.

That’s from Robinson v. CA, so…Justice Potter Stewart, d.1985.

I don’t think quarantines fit the bill. In theory, they criminalize the conduct of going somewhere while (potentially) having such a disease, which is distinct from criminalizing the disease itself. Note that in Robinson the man arrested was expressly not taking any unusual actions.

In practice, did any of the lockdown ordinances actually threaten prison? I know there were enforced business shutdowns, presumably enforced via fines. I didn’t live somewhere which actually kept you in your house.

In theory, they criminalize the conduct of going somewhere while (potentially) having such a disease, which is distinct from criminalizing the disease itself.

Ah, so criminalizing sleeping while homeless should be fine. Or walking through town while a drug addict, to go to the Robinson case.

No, this is all sophistry; the 8th Amendment, having been stretched this much, can be said to cover or not cover any given case -- and it will be, based on other criteria. In this case, likely mostly misplaced sympathy for the homeless on the part of Kavanaugh and Barrett, and a corresponding lack of concern for anyone else on their part and that of the leftist justices.

Why do you think it’s misplaced sympathy and not, I dunno, doing their jobs?

Surely it’s not just because they’ve disagreed with your intuition.

Why do you think it’s misplaced sympathy and not, I dunno, doing their jobs?

From ScotusBlog:

But Justice Brett Kavanaugh was at least initially dubious that reversing the 9th Circuit’s decision and allowing the city to enforce its ordinances would make a difference in addressing the homelessness problem. How would your rule help, he asked Evangelis, if there are not enough beds for people experiencing homelessness? Kavanaugh returned to this point a few minutes later, asking Evangelis how sending people to jail for violating the city’s ordinances would help to address the homelessness problem if there are still no beds available when they get out. Such individuals, he observed, are “not going to be any better off than you were before.”

This is not the issue at all! The questions contain within them the implication that the laws have to make the homeless people better off. And thus the implication that somehow the Constitution protects the interests of the homeless over and above the other people who want to use the parks and public spaces that the law actually is in the interests of. This is just sympathy for the wretched, not "doing their jobs".

The laws do have to improve the situation, thanks to jurisprudence about "narrow tailoring" and "compelling public interest." Here's the full exchange in question (pp. 52-56):

JUSTICE KAVANAUGH: You've said several times that it's a difficult policy question, a complicated policy question. I think everyone would agree with that.
How does this law help deal with the complicated policy issues?

MS. EVANGELIS: One of the most difficult challenges is getting people the help that they need. And laws like this allow cities to intervene, and they're an important tool in helping incentivize people to accept shelter.
So Ms. Johnson, for example, had said in her deposition -- it's in the Joint Appendix -- that she does not wish to stay at the Gospel Rescue Mission. One of the reasons is because of her dog. She also had other reasons. She doesn't like being around people and -- and so forth. People have all sorts of circumstances. It's very complex. And the individual decisions --

JUSTICE KAVANAUGH: How does it help if there are not -- how does it help -- the rule here, the law here, how does it help if there are not enough beds for the number of homeless people in the jurisdiction?

MS. EVANGELIS: So, for Ms. Johnson, she sometimes stays with a friend. So there are other --

JUSTICE KAVANAUGH: How about more -- more generally, though?

MS. EVANGELIS: Yes.

JUSTICE KAVANAUGH: I guess, if there's a mismatch between the number of beds available in shelters, even including Gospel Rescue, and the number of homeless people, there are going to be a certain number of people who there's nowhere to go?

MS. EVANGELIS: That -- that is a difficult policy question. And we --

JUSTICE KAVANAUGH: How does this law deal --

MS. EVANGELIS: Yes.

JUSTICE KAVANAUGH: -- help with that policy?

MS. EVANGELIS: So it encourages people to accept alternatives when they come up so that fewer people end up camping. It also -- there is harm in simply camping. Whatever materials people are using when they are living in public spaces without plumbing and infrastructure, there's harm to the whole city and to the whole community, as well as to them.
We know that -- that encampments and these conditions also breed crime and very dangerous conditions. So the City has an interest in protecting everyone, including --

JUSTICE KAVANAUGH: Do you think the constitutional rule should be different when the number of beds available in the jurisdiction exceeds the number of homeless people versus the number of homeless people exceeds the number of beds available in shelters?

MS. EVANGELIS: No. That's what we've seen in the Ninth Circuit. We've seen that that is unworkable. There is no way to count what beds are available and who is perhaps willing to take one and who would consider it adequate.
Then the question becomes, are those beds adequate? So, here, Gospel Rescue Mission again --

JUSTICE KAVANAUGH: That's a separate issue, I agree.

...

JUSTICE KAVANAUGH: I actually have one last question. When you get out of jail if you end up -- what's going to happen then? Aren't -- you still don't have a bed available. So how does this help?

MS. EVANGELIS: So the -- and -- and I want -- I do want to make a point about that -- about the criminal aspect. The trespass law here is only triggered after several civil citations.

JUSTICE KAVANAUGH: Right. No.

MS. EVANGELIS: And at that point --

JUSTICE KAVANAUGH: If you run through that cycle --

MS. EVANGELIS: Yes.

JUSTICE KAVANAUGH: -- and you end up in jail for 30 days, then you get out, I mean, you're not going to be any better off than you were before in finding a bed if there aren't -- going to my earlier question, if there aren't beds available in the jurisdiction, unless you're removed from the jurisdiction or you decide to -- to leave somehow.

MS. EVANGELIS: No. There are services available, and the jurisdiction can put you in touch with services and programs to help you in those circumstances. And for many people, that is a point where they're able to get into treatment. So that intervention actually saves lives.

JUSTICE KAVANAUGH: Okay. Thank you.

Kavanaugh is pushing on the Petitioners' insistence that their law helps solve the problem. Obviously, it does help them in many cases. So he pushes on the rock-and-hard-place situation in which the city's preferred intervention is unavailable. As I understand it, this was a big part of the 9th Circuit ruling, since it basically invented a regulatory regime for availability, and no one was happy with it. He touches on the same subject later with Kneedler when they're discussing whether the Court needs to address Robinson at all (p. 112). He doesn't draw conclusions in the transcript, but I can guess how Kavanaugh feels about volunteering the courts to micromanage local policy.

The Petitioners emphasize that their policy should help. The Respondents address edge cases where it won't. Kavanaugh explores that, as did several of the other justices, because this is law and lawyers love edge cases. If he votes to keep the 9th decision and strike down the ordinance, I don't think it'll be driven by his bleeding heart.

The laws do have to improve the situation, thanks to jurisprudence about "narrow tailoring" and "compelling public interest."

Narrow tailoring and compelling public interest apply when strict scrutiny is required. There's no need for strict scrutiny here, unless you accept that sleeping in public is a Constitutional right. And even if there were, there should be no need for a compelling public interest to improve things "for the homeless"; the compelling public interest could easily be to keep the park available for the non-homeless.

That Kavanaugh is concentrating only on the putative benefit to the defendants indicates that the interests of the rest of the public are at best secondary.

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