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“Homelessness never left town because somebody gave it a ticket,” Tars says. “The only way to end homelessness is to make sure everybody has access to affordable, decent housing.”

–It’s unconstitutional to ban the homeless from sleeping outside, the federal government says, Washington Post, August 13 2015, By Emily Badger

In this case, Plaintiffs are homeless individuals who were convicted of violating certain city ordinances that prohibit camping and sleeping in public outdoor places.7 They claim that the City of Boise and the Boise Police Department’s (“BPD”) enforcement of these ordinances against homeless individuals violates their constitutional rights because there is inadequate shelter space available in Boise to accommodate the city’s homeless population. Plaintiffs argue that criminalizing public sleeping in a city without adequate shelter space constitutes criminalizing homelessness itself, in violation of the Eighth Amendment.

But these concerns are not at issue when, as here, they are applied to conduct that is essential to human life and wholly innocent, such as sleeping. No inquiry is required to determine whether a person is compelled to sleep; we know that no one can stay awake indefinitely. Thus, the Court need not constitutionalize a general compulsion defense to resolve this case; it need only hold that the Eighth Amendment outlaws the punishment of  unavoidable conduct that we know to be universal. Moreover, unlike the hypothetical hard cases that concerned the Powell plurality, the conduct at issue in the instant case is entirely innocent. Its punishment would serve no retributive purpose, or any other legitimate purpose. As the plurality in Powell itself noted, “the entire thrust of Robinson’s interpretation of the Cruel and Unusual Punishment Clause is that criminal penalties may be inflicted only if the accused has committed some act [or] has engaged in some behavior which society has an interest in preventing.” Powell, 392 U.S. at 533 (emphasis added)

-JANET F. BELL, et al. V. CITY OF BOISE, et al., STATEMENT OF INTEREST OF THE UNITED STATES, Case 1:09-cv-00540-REB Document 276, United States Department of Justice, Office of Public Affairs, Filed 08/06/15