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Utah public defenders are anxious about the Supreme Court’s camping ban decision

A no camping sign in front of a fenced-off lot on 300 South in Salt Lake City on Sept. 20, 2023.
Martha Harris
A no camping sign in front of a fenced-off lot on 300 South in Salt Lake City, Sept. 20, 2023.

Earlier this year, in order to encourage enforcement of panhandling and anti-camping ordinances, Utah lawmakers gave cities with shelters access to state funds if they followed through. But now, the Supreme Court has made it legally clear that cities can impose citations, and even arrest, those who sleep outdoors or camp in public spaces.

The court’s 6-3 decision along ideological lines ruled that anti-camping ordinances are not considered “cruel and unusual punishment” under the 8th Amendment. An earlier lower court ruling against the city of Grants Pass, Oregon, had paralyzed attempts at camping enforcement across the West. Now that’s been undone. In Utah, some lawyers who work closely with the unhoused worry the Supreme Court’s new ruling could result in further criminalization of homelessness.

Jason Groth, an attorney and former public defender, said he felt “a lot of disappointment” when the ruling came down. Before the decision, arresting or citing people for camping outside when no shelter beds were available was blocked by the Ninth Circuit Court.

Even though the injunction didn’t cover Utah, which is in the 10th Circuit, Groth said many “policymakers, advocates, and legislators use[d] that as a guidepost to understand how they should be approaching this issue.”

But now “the gloves are off” and the door is open to prosecute “people for sleeping outside” when “they don't have a choice.” As a result, he predicts a handful of consequences like “harsher enforcement methods [and] more people being pumped into the criminal legal system, which already has a backlog of a lot of other cases.”

“Prosecutor offices might be filing more charges against these populations. Public defenders are going to be getting more cases. And also a lot more people in the court because they don't have a place to go because they don't have a place to sleep.”

He also believes that cities will approach public camping differently. In some areas, he anticipates harsher and more consistent enforcement done “unapologetically,” including the possibility of more abatements.

In turn, the unhoused population will likely respond by moving out of the public view and to areas “where there's not a lot of resources to avoid arrest and prosecution.” While they are escaping potential arrest, Groth said the unhoused will also have “less access to things that they need to survive, such as medical care, food [and] shelter services.”

“You're going to see a lot of money being pumped into a criminal legal system when it could be much better spent putting that towards unsheltered services,” he said. “We're not going to see this problem fixed by arresting our way out of homelessness.”

Grant Miller, a public defender and soon-to-be state Democratic State Representative, agrees with Groth in that criminalizing homelessness isn’t the answer. As a public defender, he said there are a lot of reasons why someone would not want to utilize a shelter and would prefer to sleep outside. Sometimes shelters don’t allow married couples to stay together, other times they’re scared for their safety or their possessions.

While he doesn’t foresee much change in terms of how the state and various cities handle unsheltered people, he said the ruling will make it harder to support them overall.

“Now there are less protections you can invoke as a defense lawyer, for example, in court, regarding the status of individuals that don't have a place to go.”

“We won't have meaningful defenses to camping on virtue of someone's status,” Miller said. “And so, inherently, what happens is that your status of not having any wealth becomes a de facto crime.”

Miller also campaigned on the issue of homelessness.

When the next legislative session starts next January, he plans to work on a homeless bill of rights. Some states, like Rhode Island and California, have already enacted something similar. Puerto Rico, a U.S. territory, has also established a homeless bill of rights. Miller said it’s “a really productive groundwork for how to better serve unsheltered individuals.”

“It informs the unsheltered community [of] their inherent rights as they deal with the legal system [and] as they deal with their circumstance.”

It would also be a guide, he added, for municipalities, counties and state government to keep in mind while making policy decisions and paving ways for people to transition out of homelessness.

“[I’m] not claiming it will solve everything,” Miller said. “But I think it’s a good place to start.”

In a statement, Wayne Niederhauser, who is the state homeless coordinator with the Utah Office of Homelessness Services, said they “will take the necessary time to assess” how the Supreme Court’s decision “impacts our efforts at both the state and city levels.”

“They are our family, friends and neighbors and deserving of human dignity. No one should have to live in a place not meant for human habitation, and it is essential to enforce local laws for the safety of all in our communities,” the statement continued.

In the meantime, Groth believes Utah has a chance to “chart its own course” and not just apply the strictest enforcement it can.

“We need to figure out a better way forward if we want to have any chance of addressing this in a meaningful way that also protects the liberty and dignity of unsheltered communities.”

Saige is a politics reporter and co-host of KUER's State Street politics podcast
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