Washington cities can now penalize those sleeping outdoors, but will they?

Andrea Suarez dismantles a tent as garbage lies piled at a homeless encampment on March 13, 2022 in Seattle, Washington. (Photo by John Moore/Getty Images)

The nation’s high court cleared the way Friday for cities and counties to outlaw sleeping outdoors in public places, igniting fear it will lead to more homelessness in Washington.

“It’s a very, very, very bad decision for people experiencing homelessness. This says they can be punished for the mere act of trying to survive without shelter,” said Michele Thomas, director of policy advocacy for the Washington Low Income Housing Alliance.

“We’ll see how this plays out in Washington state. We are calling on lawmakers in cities and counties to not arrest or punish people, or issue fines,” she said.  This decision,coupled with the looming potential of cuts to homeless services if current funding levels are not maintained, could lead to more people experiencing homelessness and that “would be devastating

But Camas City Councilmember Leslie Lewallen praised the court’s ruling in the so-called Grants Pass case as a win for local control.

“Every day, people in southwest Washington are on the front lines working with the homeless community and know that there is not a one-size-fits-all solution,” said Lewallen, a Republican candidate in the 3rd Congressional District. “The Supreme Court’s decision rightly returns power to our local governments and gives them the authority that they need to help homeless individuals.”

The ability to limit sleeping outdoors is seen by local and state governments as one tool to confront a proliferation of unsheltered people putting out sleeping bags on sidewalks, tents in alleyways and encampments in parks and open spaces. 

A 9th U.S. Circuit Court of Appeals ruling in 2018 in the case Martin v. City of Boise set some ground rules. Local governments could not punish individuals for camping if there were no emergency shelter beds available. The 9th Circuit judges ruled it would be cruel and unusual punishment to do so. But if a person is offered shelter and refuses to accept it, then they could be cited or arrested, per the decision.

In Grants Pass v. Johnson, the Oregon city’s law that barred sleeping in public places was challenged because the city lacked available shelter capacity. 

After the Martin decision, several Washington cities crafted ordinances compelling homeless individuals to accept housing, even if it’s miles away, to avoid punishment. They put them on hold pending the outcome of the Grants Pass case.

“This decision, while not surprising, is a horrible decision,” said Rep. Strom Peterson, D-Edmonds, chair of the House Housing Committee. “The idea of arresting somebody just trying to survive is contrary to what we should be doing. It won’t do anything about homelessness. If anything it will exacerbate the problem.”

Sen. Patty Kuderer, D-Bellevue, who leads the Senate Housing Committee, said the decision “pulls us backward rather than help us move forward.”

“Justice Sotamayor put it best. We can balance between the needs of local governments and the dignity of our most vulnerable. The decision focuses on the needs of local

governments and leaves the most vulnerable with the impossible choice of either stay awake or be arrested,” Kuderer said, referring to a dissent by Justice Sonia Sotomayor.

Easing homelessness will require controlling rent costs, increasing affordable housing and boosting funding of support services for those without a home, Peterson, Thomas and Kuderer said.

In that pursuit, legislation calling for a cap on rent increases and a new graduated real estate excise tax, both of which failed in this year’s state legislative session, are likely to be revived in 2025, Peterson said.

Rep. Andrew Barkis, R-Olympia, a member of the Housing Committee, said the ruling is “a good thing.” Civic leaders felt the Martin decision hampered their ability to respond in an appropriate or timely manner when new encampments form, he said.

“I think cities should have all the tools at their disposal to be able to address this crisis,” he said. “We’ll see how it plays out here over time.”

Pouring more money into homeless programs and imposing caps on rent hikes aren’t the answer, he said. Nor is locking up those sleeping outdoors. Better to beef up detox programs and mental health services because that’s what many of those individuals need, he said.

“I don’t believe we’ve done enough on this issue,” he said. “Obviously we’ve spent hundreds of millions of dollars on services and the problem remains the same.”

State lawmakers have directed roughly $5 billion to expand housing and prevent homelessness since 2013, with more than $4 billion of the total allotted in the past two state budgets.

“It’s not like we’re not getting people out of homelessness,” Kuderer said. “People are falling into homelessness at a much faster rate than we can get them out of it. This is a solvable problem. This decision doesn’t help us solve it.”

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