No Way Out: Eighth Amendment Protection for Do-or-Die Acts of the Homeless

Abstract

The Supreme Court held in its 1962 decision Robinson v California that it was cruel and unusual under the Eighth Amendment to punish people for crimes-that is, crimes defined by who people are, not what they do.1 In the decade following that decision, courts used the status crimes doctrine to invalidate statutes that made vagrancy illegal.2 In response to recent, explosive increases in their homeless populations, however, many communities have bypassed the Court's status crimes mandate by outlawing actions that are attendant to vagrancy, such as sleeping in public places. Homeless people in these communities have used the status crimes doctrine to challenge such ordinances; however, since the Supreme Court narrowed the doctrine in Powell v Texas,3 the Eighth Amendment has provided the homeless with very precarious protection. A plurality of the Powell Court withdrew Robinson's protection of acts attendant to status, even where punishment of such acts has the practical consequence of proscribing the status itself. Whereas Robinson held that it was cruel and unusual to punish status, Powell implied that states could punish status, so long as