Unavoidable Conduct and Culpability: City of Grants Pass v. Johnson

In City of Grants Pass v. Johnson, the Supreme Court held that a city may enforce generally applicable anti-camping ordinances against unhoused individuals without violating the Eighth Amendment’s prohibition on cruel and unusual punishment.^[1] Although the Eighth Amendment prohibits the criminalization of status, it does permit states to punish conduct.^[2] The Court in Grants Pass viewed the anti-camping ordinance as one addressing the conduct of camping, as opposed to the status of being homeless.^[3] However, the distinction between an individual’s status and conduct is not the only normative constraint that criminal law imposes on illegality and punishment. A fundamental principle of criminal law is that punishment presupposes voluntary action and culpability.^[4] Imposing criminal sanctions for unavoidable conduct undermines the moral foundations of criminal law. The criminalization and punishment of effectively involuntary conduct cannot be justified under traditional justifications for punishment grounded in utilitarianism and retribution.

Criminal punishment is primarily justified on these two sets of theories: utilitarianism and retribution.^[5] Utilitarian theories argue that punishment serves the greater good in society through multiple different mechanisms, such as deterrence, incapacitation, and rehabilitation.^[6] Whereas, retribution justifies punishment on the ground that wrongdoing deserves condemnation.^[7] Under this view, punishment is warranted when the defendant is morally blameworthy.^[8] These theories, although distinct, both share the underlying assumption that punishment attaches to conduct that is meaningfully attributable to a person who had the capacity to act freely.

Deterrence assumes that individuals can respond to potential sanctions by changing their behavior, and others in society will likewise be discouraged from engaging in the prohibited conduct.^[9] When the conduct at issue is sleeping in public, deterrence fails to justify punishment. If an individual has no way of finding shelter, there is no choice between sleeping inside and outside. Under these circumstances, punishment cannot deter the very conduct targeted by the Grants Passordinance because homeless individuals have no other legal alternative. Rehabilitation likewise fails to provide a genuine rationale for penalizing unavoidable conduct since it assumes that state intervention can help the defendant reform and improve their decision-making in the future.^[10] The absence of lawful alternatives for homeless people in Grants Pass negates any proper function of rehabilitation in this context. Rehabilitative punishment is thus unable to serve any meaningful purpose when the conduct is out of the offender’s control.

Retribution raises the greatest difficulty in the case of Grants Pass.^[11] Retribution insists that punishment should only be applied to those who are culpable and who have acted voluntarily so as to warrant moral blame.^[12] This idea is clearly reflected in the voluntary act requirement, a foundational element in criminal law.^[13] Furthermore, the voluntary act principle reflects our moral intuition that criminal law should respond to freely made decisions, not coerced movements or inescapable necessities.^[14] The Supreme Court’s own Eighth Amendment jurisprudence likewise reveals an awareness of the need for moral culpability.^[15] The Court has consistently evaluated the appropriateness of punishment through the lens of culpability, including the recognition of diminished blameworthiness for juveniles and persons with intellectual disabilities.^[16] These decisions reflect an understanding that punishment and culpability are proportionally related to blameworthiness.

Viewed in light of these considerations, the question of whether camping outside should be characterized as conduct or not diminishes in importance. The greater question centers on the appropriateness of criminal punishment in response to a state of affairs that is uncontrollably necessitated by the basic conditions of life. Laws that permit punishment without meaningfully assessing the defendant’s capacity to actually comply with the law turns the criminal justice system into a tool of management instead of moral responsibility. In doing so, they shift the focus of criminal law away from blameworthy wrongdoing and toward the regulation of social conditions, as punishment functions as a mechanism for controlling unwanted social behavior instead of a response to culpable conduct.

The imposition of criminal punishment for essential life behavior that is practically unavoidable and inseparable from a person’s homeless status is inconsistent with the foundational principles of criminal law. Courts should therefore more carefully consider blameworthiness and proportionality in Eighth Amendment cases where defendants have little to no control over their conduct. These situations effectively blend two concepts of conduct and status, whereby an individual’s actions are inseparable from their status. Recognizing this overlap would more justly preserve the foundational principle of criminal law that punishment is justified only when it has the potential to deter, rehabilitate, or condemn morally culpable conduct.

^[1] City of Grants Pass, Oregon v. Johnson, 603 U.S. 520 (2024); U.S. Cᴏɴsᴛ. ᴀᴍᴇɴᴅ. VIII.

^[2] Robinson v. California, 370 U.S. 660 (1962); Powell v. Texas, 392 U.S. 514 (1968).

^[3] Grants Pass, 603 U.S. at 548-50.

^[4] H.L.A. Hart, Prolegomenon to the Principles of Punishment, in Punishment and Responsibility: Essays in the Philosophy of Law 1, 11–28 (2d ed. 2008).

^[5] Id. at 8-13.

^[6] See Jeremy Bentham, An Introduction to the Principles of Morals and Legislation 165–206 (J.H. Burns & H.L.A. Hart eds., Athlone Press 1970) (1789) (deterrence and utility as the basis for punishment); Richard S. Frase, Punishment Purposes, 58 Sᴛᴀɴ. L. Rᴇᴠ. 67, 69–80 (2005) (surveying punishment purposes including deterrence, incapacitation, and rehabilitation).

^[7] Retributivism, Cᴏʀɴᴇʟʟ L. Sᴄʜ. Lᴇɢᴀʟ Iɴғᴏ. Iɴsᴛ., https://www.law.cornell.edu/wex/retributivism [https://perma.cc/Y5WM-N39S].

^[8] See Immanuel Kant, The Metaphysical Elements of Justice 100–07 (John Ladd trans., Hackett Publ’g Co. 2d ed. 1999) (1797) (retributive justification); see Alec Walen, Retributive Justice, Sᴛᴀɴғᴏʀᴅ Eɴᴄʏᴄʟᴏᴘᴇᴅɪᴀ ᴏғ Pʜɪʟᴏsᴏᴘʜʏ, https://plato.stanford.edu/entries/justice-retributive/ [https://perma.cc/ZN7Q-4GQR)].

^[9] See, e.g., Paul H. Robinson & John M. Darley, Does Criminal Law Deter? A Behavioral Science Investigation, 24 Oxғᴏʀᴅ J. Lᴇɢᴀʟ Sᴛᴜᴅ. 173, 173–96 (2004).

^[10] See U.N. Oғғ. ᴏɴ Dʀᴜɢs ᴀɴᴅ Cʀɪᴍᴇ, Justifying Punishment in the Community, https://www.unodc.org/e4j/en/crime-prevention-criminal-justice/module-7/key-issues/2--justifying-punishment-in-the-community.html [https://perma.cc/K79P-6S3V].

^[11] City of Grants Pass v. Johnson, 603 U.S. 520 (2024).

^[12] See Moore, supra note 6, at 181–97; Kent Greenawalt, Punishment, 74 J. Cʀɪᴍ. L. & Cʀɪᴍɪɴᴏʟᴏɢʏ 343, 345–60 (1983) (contrasting retributive and utilitarian theories).

^[13] Model Penal Code § 2.01(1) (Am. L. Inst. 1985); Stephen J. Morse, Culpability and Control, 142 U. Pᴀ. L. Rᴇᴠ. 1587, 1590–620 (1994) (control as a predicate for blame).

^[14] Paul H. Robinson & Lindsay Holcomb, Individualizing Criminal Law’s Justice Judgments: Shortcomings in the Doctrines of Culpability, Mitigation, and Excuse, 67 Vɪʟʟ. L. Rᴇᴠ. 273, 280–83 (2022).

^[15] See Enmund v. Florida, 458 U.S. 782, 801 (1982) (holding that the Eighth Amendment limits punishment based on the defendant’s “personal culpability”); see also Tison v. Arizona, 481 U.S. 137, 149 (1987) (explaining that the Eighth Amendment requires punishment to be “graduated and proportioned to the defendant’s culpability”).

^[16] See Atkins v. Virginia, 536 U.S. 304, 318–20 (2002); see also Graham v. Florida, 560 U.S. 48, 67–74 (2010) (holding that life imprisonment for non-homicidal crimes for a juvenile is unconstitutional because it is disproportionate to the crime and juveniles should have an opportunity to display growth and reform).