California’s Ban on Cruel or Unusual Punishment, A State Constitutional Analysis of Anti-Camping Ordinances

From the introduction:

“Sleep is a biological necessity. If camping on public property is banned across the board, those without access to shelter must unequivocally break the law. Houseless individuals have therefore challenged the constitutionality of anti-camping ordinances on several occasions, particularly under the Cruel and Unusual Punishment Clause of the Eighth Amendment. In a 2018 case, Martin v. City of Boise, the United States Court of Appeals for the Ninth Circuit ruled that involuntarily houseless individuals could not be criminally punished for sleeping on public property in lieu of sufficient alternatives for all unhoused people. In 2022, the Ninth Circuit elaborated that civil schemes which lead to criminal punishment are unconstitutional as well—but in City of Grants Pass v. Johnson, the Supreme Court reversed that decision, also abrogating Martin. Justice Sotomayor noted at oral argument that the majority’s decision will have extensive ramifications in states with large houseless populations: ‘Where do we put them if every city, every village, every town lacks compassion and passes a law identical to this? Where are they supposed to sleep?’

This Note argues that although the federal issue should be reexamined, anti-camping ordinances in California that parallel those in Grants Pass should be barred under the state constitution. The cruel or unusual punishment clause of California’s constitution, article I, section 17, offers more extensive rights than its federal counterpart, the Eighth Amendment’s Cruel and Unusual Punishment Clause. “