In the face of affordable housing crises and increasingly visible homeless populations, many cities have enacted anti-homeless ordinances that regulate public behavior largely performed by homeless individuals. These ordinances prohibit necessary and life-sustaining behavior, such as sleeping and camping in public, for those without housing in cities that lack sufficient shelter space. Although the U.S. Supreme Court in the 1960s established the “status crimes” doctrine—which provides that the Eighth Amendment prohibits subjecting a person to criminal punishment based on her status— the Court has left unaddressed the full reach of that doctrine. Some advocates for homeless people have argued that the status crimes doctrine protects against the criminalization of conduct that homeless individuals have no choice but to perform in public. Lower courts and state courts considering constitutional challenges brought by these advocates have divided on the issue, left to conjure up limiting principles without guidance from the Court.

This Note argues that the status crimes doctrine and the substantive protections of the Eighth Amendment should extend to this kind of conduct. It proposes a test to aid advocates, courts, and local legislators. In addition, it addresses standing and other procedural concerns that have plagued homeless plaintiffs seeking to challenge sleeping and camping bans.

* J.D., Stanford Law School, 2017.