Transcript for What the Grants Pass Decision Means for People with Disabilities
August 28, 2024
- [Michelle] Hi everyone. Thank you for joining us today for What the Grants Pass Decision Means for People with Disabilities. My name is Michelle Uzeta. I am the Deputy Director at the Disability Rights Education and Defense Fund, or DREDF. DREDF is a national nonprofit law and policy center based in Berkeley, California, and we are focused on the securement and advancement of the rights of disabled and multiply marginalized people. And I apologize for being off camera today. My co-presenters for this webinar are Monica Porter Gilbert, a Policy and Legal Advocacy Attorney with the Bazelon Center for Mental Health Law, and Siya Hegde, Staff Attorney with the National Homelessness Law Center. Next slide. Because we have a lot of people registered for this webinar and from a variety of backgrounds, I'll be starting off the webinar by doing some level setting before passing the torch to Monica and Siya for a deeper dive into the issues. We wanna ensure that everyone in attendance, starting from a common understanding about the relationship between homelessness and disability generally and about the City of Grants Pass Oregon versus Johnson case. Next slide please. Homelessness is a disability rights and disability justice issue. People with disabilities are at increased risk of homelessness due to a number of factors, including most significantly, poverty, inaccessibility, and discrimination. Next slide please. Statistics show that people with disabilities are most likely to experience homelessness, be rent burdened, or be unable to afford housing. A few data points to consider here. Disabled folks are employed at a lower rate, 22.5%, and have a higher poverty rate, around 25%, than non-disabled folks. And this is largely due to ableism and other structural barriers to employment and economic security. For example, the lack of educational opportunities, bias in employment hiring processes, lack of accessibility in the workplace, or unwilling to provide job accommodations or modifications. And also lack of things like access to reliable transportation that are necessary to get to work. Over 4 million adults with disabilities between the age of 18 and 64 rely on Supplemental Security Income or SSI benefits to meet their basic needs. But SSI uses a very low outdated income floor, and it's really not enough to cover an individual's reasonable living expenses. Additional, we have federal policies in place such as income and asset limits for SSI recipients, and sub minimum wages, which are allowable in many places, making it hard for people with disabilities to escape poverty. Next slide. And housing is unaffordable. Research from the Harvard Joint Center for Housing Studies revealed that the primary cause of the record levels of homelessness that we see today is the unaffordable housing market. A nonprofit called the Technical Assistance Collaborative in Boston publishes a report called Priced Out, and there's a link there for that, that analyzes data on the housing market for someone living on SSI, and has determined that there is no United States housing market in which a person living solely on SSI can afford a safe, decent apartment without rental assistance. And in fact, if you look at their data on their website, on average the amount of money required to rent a one bedroom unit in the United States in 2024 is 142% of an individual's SSI payment. In California, where the majority of unhoused people in the US reside, the percentage is even higher, 168%. So folks who are on SSI only are really priced out of being able to afford housing at all. Next slide please. There's also the issue of inaccessibility. It's been reported that less than 5% of housing nationwide is accessible to people with mobility difficulties, and less than 1% is accessible to wheelchair users, less than 1%. And here, we're not just talking about old housing stock, there's new housing being built every month, every year across the country without accessibility in mind and without complying with applicable accessibility standards. And now that we're in a nationwide housing shortage of an estimated more than 7 billion units, there are even fewer accessible and affordable housing options for disabled people. Next slide please. Discrimination against people with disabilities is a serious and ongoing issue as well. The National Fair Housing Alliance recently published their 2024 Fair Housing Trends Report, and in that report it was reported that nearly 53% of housing discrimination complaints filed nationally were based at least in part on disability. And in California, again, where the majority of unhoused people in the US reside, the percentage is even higher, a little over 56%. And this is as reported by the California Civil Rights Department. And when we talk about discrimination, we're talking about a variety of things, including the failure to build units that are accessible. Discriminatory rental policies, for example, not renting to someone who uses a wheelchair because you fear they may damage the carpet or the walls or the door jams. Failure to provide reasonable accommodations, which are changes to policies and procedures. If, for an example, they're refusing to waive a no pet policy to accommodate someone who uses an assistance animal. There's also the failure to allow reasonable modifications to an individual's physical space, their physical housing, for example, not allowing someone to install grab bars in their restroom, or install a ramp. And then there's exclusions or differential treatment due to paternalistic views or stigmas, and harassment based on disability. And I see a question in the Q&A about you will get these slides, and they have active links, so where there's links to reports and things, you'll be able to access them yourself. Next slide please. So for all these reasons that I just went over, people with disabilities are overrepresented in unhoused communities. The Department of Housing and Urban Development's 2023 Point-in-Time count suggests that approximately one out of every three unhoused person has a disability. This is probably an underestimate, because HUD does not track disability as a separate data point. Rather it tracks chronic homelessness, which means a person who has a disability and a one year of continuous homelessness, or four or more episodes of homelessness within a three year period that total at least 12 months. And again, I'll give you California data here because so many unhoused people are in California. It's been reported in our state that approximately 42% of the unhoused population has a disabling condition of some kind. And here we're talking about the the wide range of disabilities, physical, mental, intellectual, sensory, substance use, et cetera. Next slide. So with that backdrop, let's move on to the laws that criminalize unhoused people. Here we're talking about measures that prohibit life sustaining activities in public spaces, and that include criminal penalties like fines or jail time. And these usually take one of these kind of forms, restrictions on the public areas in which sitting or sleeping are allowed, prohibitions on pitching tents or other structures on public property, and prohibitions on storing belongings on public property. Next slide. People with disabilities are more likely to be subjected to punishment under these types of laws, for a few reasons, and I'll highlight a couple here. Compliance with these types of local laws may be difficult or more burdensome due to a person's disability. For example, someone with a mental health or intellectual disability may not be able to remember or understand time, place and manner restrictions that apply to where they can be, especially when they change throughout the day or days of the week. Also, someone with a mobility disability may not be able to move their tent or other belongings on 24 hours notice without help to do so. Second, public entities often lack policies or procedures on how people with disabilities can ask for reasonable accommodations. Where policies exist, information about them is not always easy to find, nor are they consistently followed. Which brings me to the third point, which is that public entities often refuse to reasonably accommodate people when enforcing local laws and conducting encampment sweeps, despite the affirmative duty to do so under federal anti-discrimination laws, like the Americans with Disabilities Act, or Section 504 of the Rehabilitation Act. Under those types of laws, public entities can't use methods of administration that have the effect of discriminating against people based on their disability. So they cannot deny disabled people equal opportunity to comply with law enforcement orders and avoid citation arrest or other harm. They can't deny disabled people the benefit of the opportunity to comply with directives in a manner that's consistent or accommodating of their disability. And they cannot carry out encampment clearing programs and activities in a way that unduly burdens disabled people. Additionally, you know, and I mentioned earlier, accommodations may be required, and accommodations that might be available in the encampment sweep setting include allowing someone more time to move their camp or belongings after getting a notice to vacate, assistance with moving, or providing special care for medical equipment and medication, rather than tossing them away or moving them to storage. Next slide please. Additionally, and perhaps most importantly, criminalization does not work. Studies have shown that criminalization perpetuates poverty, continues a cycle of homelessness and incarceration, and exacerbates or creates health problems for people. And there are a couple of articles that are cited there that address those issues. Next slide. All right, moving on to the Grants Pass case. In this case, the City of Grants Pass, Oregon enacted ordinances that prohibited camping outdoors in public spaces, using things like a blanket, pillow or a cardboard box. These ordinances punished people for seeking shelter from the elements, despite the fact that the city did not have enough shelter beds to accommodate the number of unhoused people that were living in the community. So in 2028, a woman by the name of Gloria Johnson sued the city to challenge these ordinances, and she asked the court to stop the city from fining and jailing unhoused people for sleeping in public, when they have no place else to go. Next slide. Ms. Johnson's main argument was that punishing people with no alternative but to sleep in public violates the US Constitution, specifically the 8th Amendment's prohibition on cruel and unusual punishment. The District Court in Oregon actually agreed with Ms. Johnson, relying on an earlier 9th Circuit case called Martin v Boise, which is also based out of Oregon. In that case, the court held that it was unconstitutional to enforce anti-camping ordinances and impose criminal penalties on unhoused people when they have no alternative shelter available to them. And before Grants Pass, Martin v Boise was the law of the land in the 9th Circuit. The City of Grants Pass was very unhappy with the District Court's decision in the Johnson case and appealed it all the way to the Supreme Court, who heard the case this past April on April 22nd. Next slide. The case garnered enormous attention. I'm sure that many of you on this webinar know a lot about the case. Over 40 amicus briefs or friend of the court briefs were submitted in support of Ms. Johnson from a variety of civil rights and social justice perspectives. And I provide a link in the slides to the docket for folks that are interested in taking a look at some of these briefs. And our organization, the Disability Rights Education and Defense Fund, filed a General Disability Rights Brief. There's also a link to our brief. Our brief discussed the relationship between disability and homelessness, providing some of the data that I've also provided in this presentation. We stressed how criminalization disproportionately harms unhoused people with disabilities, and deepens racial, gender and health inequities. And we highlighted the lack of alternatives for disabled people, and the need for different holistic strategies to deal with this crisis. Next slide please. Unfortunately, on June 28th in a 6 to 3 ruling, the Supreme Court held that fining and jailing people experiencing homelessness for sleeping outside does not constitute cruel and unusual punishment, even when there is no alternative shelter available. Justice Neil Gorsuch, who is a Trump appointee, wrote for the majority, who reasoned among other things that the 8th Amendment really just focuses on the method or kind of punishment a government may impose after a criminal conviction, not on whether the government may criminalize conduct in the first place. And they also held that limited civil fines, bans from public property, and maximum jail sentences of 30 days are neither cruel nor unusual. And that particular finding annoys me because I think from their privileged point of view, that may not seem cruel or unusual, but for someone who does not have housing, those types of things add up and really do have impact. Next slide. The majority also rejected arguments that were made by Johnson's counsel, including the argument that ordinances banning people from sleeping in public when there's no alternative shelter criminalizes the status of being homeless in violation of longstanding Supreme Court precedent. And they also rejected the argument that the ordinance is criminalized involuntary behavior, like sleeping, a biological necessity. Next slide. There was a dissenting opinion by Justice Sonia Sotomayor. She found that, or she wrote that for people with no access to shelter, the ordinances in Grants Pass do punish them for the status of being unhoused and that the ordinances are so broadly written to criminalize just wide swaths of behavior, that unhoused people necessarily break the law just by existing in the community. She described them as unconscionable and unconstitutional. And Justice Sotomayor also cited DREDF's Disability Rights Brief in a number of places, which we were pleased, not with the decision obviously, but pleased that at least the rights and impact on people with disabilities were acknowledged by some of the justices. And of course, this is just a very simplified and incomplete summary of the opinion. I'd encourage everyone to read the Supreme Court's opinion for themselves to really fully comprehend its gravity. Next slide. And this is the last slide for me. So the aftermath of Grants Pass. You know, the Supreme Court's decision really gives government the green light to make criminalization their primary frontline response to homelessness, and they are doing that. Recently you may have heard, California Governor Gavin Newsom issued a recent executive order directing the clearing of encampments throughout the state and threatening the withholding of state money from municipalities that do not comply. Before the Grants Pass decision, government was prohibited from fining and jailing people for sleep in public when there was no alternative shelter available. But now post Grants Pass, they can aggressively conduct sweeps and raids without any restriction whatsoever. If there's no housing available, no problem, they can still sweep, they can still criminalize. And this is going to have really devastating results for the disability community, in that many disabled people are going to end up in jails, psychiatric facilities, nursing facilities, or other institutions because there is going to literally be nowhere that they can even exist. Next slide. Thank you, my contact information's on the slides and I will pass it over to Monica.

- Thanks, Michelle. I'll give us a chance to switch slide decks. So thanks again, and hi everyone. My name is Monica Porter Gilbert. I use she/her pronouns and I am an attorney at the Bazelon Center for Mental Health Law. We are a national nonprofit organization, and our mission is to protect and advance the civil rights of adults and children with mental health and developmental disabilities. Today I'll be building on Michelle's presentation by telling you about the amicus or friend of the court brief the Bazelon Center coordinated for the Johnson versus Grants Pass case that focused on the perspective of mental health disabilities. And then I'll build on some of Michelle's last comments about current and existing and potential threats to increased institutionalization following the Grants Pass decision. Next slide please. So the Bazelon Center, as I mentioned, coordinated a friend of the court brief from the perspective of mental health, and submitted it to the Supreme Court with the American Psychiatric Association, the National Alliance on Mental Illness, the National Association for Rural Mental Health, and the National Association of Social Workers. Our brief made two main points. First, that arresting or fining people experiencing homelessness for trying to survive disproportionately impacts and harms people with mental health disabilities. And second, that community-based housing and mental health services are far more effective than criminal enforcement in addressing homelessness. And there's a link to our brief at the bottom of the slide. Next slide please. Zooming in on the first point of our brief that criminalizing homelessness has a disproportionate impact, or particularly affects people with mental health disabilities. There's a lot of misinformation out there and harmful narratives. So first, I want to note that most people experiencing homelessness do not have a mental health condition, and so mental health and homelessness should not be discussed interchangeably. In fact, homelessness is more frequently triggered by economic factors such as job loss. That said, the federal government estimates that over 650,000 Americans are experiencing homelessness, and that more than 20% of people experiencing homelessness has a quote, "serious mental illness", compared with just 5.6% of the general population. And the term, "serious mental illness", has a specific definition that is more narrow than all of the mental health disabilities and the full spectrum. Also, last year, UCSF conducted a study of homelessness in California, which as Michelle mentioned, has the nation's highest homeless population. And that study found that 27% of Californians experiencing homelessness had been hospitalized for a mental health condition, with more than half of those hospitalizations occurring prior to their first instance of homelessness. Next slide please. Our brief also discussed how criminalizing homelessness disproportionately harms people with mental health disabilities. People with mental health disabilities are especially likely to be harmed in an interaction with law enforcement, being 12 times more likely to experience police use of force, and 16 times more likely to be killed by law enforcement. People with mental health disabilities are also especially likely to experience unnecessary arrest and incarceration. Jail systems are now among the largest providers of mental health services in the United States. Once in jail, people with serious mental illness can remain incarcerated twice as long or longer than others, and most don't receive mental health treatment while they're incarcerated. And then upon release with a criminal record, anyone is more likely to be unemployed, to experience homelessness, and to be rearrested and reincarcerated. Next slide please. The second main point of our mental health brief in Johnson versus Grants Pass is that there are solutions. Governments can and many successfully have put in place community-based services that meet the needs of everyone in the community without resorting to criminal enforcement. Examples include supportive housing, assertive community treatment, mobile crisis services, supported employment, and especially peer support services. By employing these community-based interventions, governments can address homelessness without resorting to criminal enforcement. And not only are these interventions more effective, but they also result in reduced costs for communities. The per diem or per day cost of serving one person in supported housing is one quarter the cost of incarceration and one 10th the cost of psychiatric hospitalization per day. Also, a SAMHSA study found that mobile crisis services can decrease inpatient hospitalization costs by approximately 79% over six months. That stat's not on the slide, so I'm gonna say it one more time. A SAMHSA study found that mobile crisis services can decrease inpatient hospitalization costs by approximately 79% over just six months. Next slide please. So unfortunately, the Supreme Court's holding in Johnson versus Grants Pass is not the only threat to civil liberties at the intersection of homelessness, mental health and institutionalization. There are additional concerning trends and proposals that could bring us backwards. First, at the federal and state level, there are concerning proposals to increase federal funding for institutions. Second, at the state and local level, there are laws coming out that make it easier to initiate involuntary treatment or commitment. And third, as Michelle mentioned, now that the Supreme Court has ruled in favor of Grants Pass, we're seeing state and local governments taking it as permission to round people up. Next slide please. The first concerning trend is efforts to increase federal funding for institutions including those that are called Institutions for Mental Disease, or IMD. An IMD is defined as a standalone facility with more than 16 beds that is primarily engaged in diagnosing, treating, or caring for persons with, quote, "mental diseases", including both mental health disabilities and substance use disorders. Point of clarification, this is not like the site wing of a general hospital, and it's not a small setting. These are large standalone facilities, essentially modern day asylums. A bit of historical context. Since 1965, the Medicaid Act has not authorized federal Medicaid dollars to go to services provided in these IMDs. This is sometimes referred to as the IMD Exclusion or the IMD Rule. So to be clear, the IMD Exclusion is a prohibition on the setting, not on the service. Any service that's provided in an IMD can and should be provided in the community. In fact, Congress's intent with the IMD Exclusion was to encourage states to invest in community-based services rather than in institutions. The Supreme Court reinforced this 25 years ago with their decision in Olmstead versus Lois Curtis, where the Supreme Court held that the Americans with Disabilities Act prohibits segregating people with disabilities, that needlessly isolating people with disabilities is a form of disability-based discrimination, and that states and local governments are required to provide services in the most integrated setting appropriate to a person's needs. In spite of all this, we're still seeing concerning proposals. At the federal level, calls to weaken or get rid of the IMD Exclusion so that federal dollars can go to institutions. At the state level, applications for waivers to get around the IMD Exclusion and get more federal dollars into institutions, and generally calls for more beds, more inpatient treatment, rather than for services provided in the community that would make it so that we don't need more beds, inpatient treatment. Next slide please. One of our goals in this presentation, in addition to getting all of you up to speed, is to empower you with information and resources so that you can join or level up in your advocacy. So to kick some of that off, disability rights groups oppose efforts to end or get around the IMD Exclusion for three big reasons. First, we tried it before and it didn't work, and I'm not just talking back pre ADA. From 2012 to 2015, Federal Demonstration Program tried out reimbursing 11 states and the District of Columbia for inpatient treatment and IMDs. That program's final evaluations found no decrease in emergency room admissions or lengths of stay, no decrease in hospital admissions or lengths of stay, no improvement in access to care, and no demonstrated cost savings for communities. Not only do these not work, even short stays in IMDs are harmful. In litigation in Illinois, which is one of those pilot program states, a court monitor found, quote, "no evidence of active treatment during facility visits." The monitor also sounded a cause for alarm about critical incidents in IMDs including sexual assault, abuse, neglect, and death. These are the kinds of places where people go in and they do not come back out. The third big reason why disability rights groups oppose federal dollars going to these IMDs is that it's inconsistent with federal civil rights laws, including the ADA's Integration Mandate and the Supreme Court's holding in Olmstead versus Lois Curtis, which prohibit unnecessary institutionalization and require states to provide services in the most integrated setting appropriate. In fact, just yesterday, August 27th, the US Department of Justice found that Kentucky is violating the ADA by unnecessarily institutionalizing Louisville residents when they should be providing mental health services in the community. That link is not on my slides, because it's so hot off the presses, so I'll put it in the chat now. Next slide please. The second concerning trend I mentioned is laws that would make it easier to initiate involuntary commitment or treatment. Unfortunately, there are a number of these, so I'll try briefly to summarize each of them. First, on a national level, there are efforts to pass laws that would criminalize homelessness and lower the bar for involuntary treatment or commitment. The Cicero Institute is a billionaire backed think tank that is lobbying state by state with template legislation that would ban camping and increase involuntary treatment statewide. Unsurprisingly, the Cicero Institute filed an amicus brief or a friend of the court brief in favor of Grants Pass. The Housing not Handcuffs campaign is tracking local and state laws that criminalize homelessness. And so at the links provided in the chat, you can check the status of your local community. Secondly, in California, the state recently passed two laws that take away people's autonomy. First is CARE Court. CARE, C-A-R-E stands for Community Assistance Recovery and Empowerment. It's marketed as a compassionate response to people with mental health disabilities experiencing homelessness. In reality, it's an involuntary treatment system that does not provide the housing or voluntary services that would actually help people. Under CARE Courts, someone like a friend or a family member or a police officer can file a petition to bring you before a judge. If the judge decides you qualify for CARE Court, you either have to agree to a year of mental health treatment, or the court will order you into treatment. Then if you don't follow that treatment plan, you could get placed into a conservatorship, meaning that someone else makes decisions for you. Also, in California, SB 43 is a law that lowers the bar to being placed on an involuntary hold or conservatorship. It makes it so that if someone's considered unable to take care of their own needs for things like food, clothing or shelter due to a mental health disability or a substance use disorder, that they could be placed on an involuntary psychiatric hold or conservatorship. Big thanks to our friends at Disability Rights California for a Plain Language Guide on CARE Courts and SB 43, which are linked in the slide. And this last one that I'll mention here is that a couple of years ago in New York City, the mayor announced an order to involuntarily take people to psychiatric hospitals when it appears that they cannot, quote, "meet their basic needs." In all of these efforts to lower barriers to involuntary commitment, people will be sent to hospitals who do not need to be there. And due to systemic racism, Black and brown people with disabilities will be especially impacted and harmed. Next slide please. So what do we do? We do something. There are lots of opportunities to get involved, and resources available to support you. First, the National Alliance to End Homelessness has created a guide called What Communities Need to Know About the Criminalization of Homelessness. That includes videos, fact sheets and news articles. That guide includes a packet on emerging strategies to combat state level punitive bills, like the ones we were just talking about. I know we've got folks joining us from all over, so shout out to some successful strategies coming out of Tennessee, Kentucky, Kansas, Missouri, Arizona, Florida, Texas, North Dakota, Georgia, and Iowa, all of which are highlighted in these materials. The guide also covers how different types of partners can help, including faith-based partners, direct service providers, and national organizations. It does mention TikTok, but it only mentions it one time. Another resource hub is the Housing Not Handcuffs campaign, which has toolboxes for communications, litigation, organizing and policy. This slide also has links to resources about talking with folks about these issues and recommendations for how to talk with everyone from the media, to your elected representatives, to your next door neighbor. The main takeaway here is there's a lot going on, including short and longer term strategy discussions that you can link up with. And no matter who you are on this call, you can have a the power to make positive change in your community, and you do have the power to make positive change in your community. Next slide, please. And we really need your help. As Michelle mentioned, a concern we had about the Supreme Court ruling in the favor of Grants Pass was that state and local governments would take it as a green light, and we've already seen California's governor put out an executive order to sweep encampments. San Francisco has jumped on it. Los Angeles has said that they won't comply, and San Jose has said that they won't comply, but it does sound like the mayor's left the door open for more beds. Last slide for me next. So this is a lot. Really appreciate everyone being here. I hope these resources are helpful to you as you join or level up in this advocacy. And this slide has my email as well. So with that, I'll turn it over to Siya.

- Thank you so much, Monica, and Michelle, that was so wonderful. And I will give a moment for the slide deck to come up. Thank you. Okay, so good to be here. And I wanna thank again, Michelle specifically for planting the seed for the vision to bring this webinar together. It always takes a village, and I feel like every time I've been in these spaces with thought partners like Michelle and Monica, and many, many others in our movement right now and right here, I continue to learn and just try to better my sensitivity to why we're all here doing this work. So thank you. So my name is Siya Hegde. I'm a Lawyer from the National Homelessness Law Center. Just a little bit about the Law Center, as we call it. We are a 501 nonprofit, working in coordination with other advocacy groups at the state and national levels to advance housing justice and end the crisis of homelessness. Founded in 1989, the Law Center has helped lead law and policy efforts in the movement to decriminalize homelessness across the country and enshrine the human right to housing. Most recently, working with organizers, media strategists, lawyers and policy advocates on shaping the public education and mass organizing campaign to elevate the Grants Pass v Johnson case, and ways to combat its harmful legacies. Just to provide a brief roadmap of what the next 15 to 20 minutes of my presentation will look like. As Monica and Michelle left us with some very rich research and analysis around the disproportionate impacts of homelessness on people with disabilities amidst the uptick of criminalization laws and policies nationwide, my presentation will start by highlighting different interpretations of what constitutes criminalization in the broader context of people experiencing homelessness and poverty. More generally, noting the intersectionality of these interpretations as they concern people with disabilities. I will then delve into the scope of the Grants Pass v Johnson ruling a little bit further to understand how its language implicated or failed to center the humanity of people with disabilities. I'll then zoom out further to discuss the roles and limits of courts in enforcing rights for people with disabilities and people living in poverty. And my hope then is to close out by offering two different frameworks that we can all take away to help guide our own advocacy strategies at the state and local levels, and then eventually pass the torch back to Monica and Michelle to draw us back to the more local community-based side. Okay, next slide please. And yes, thank you interpreter for that reminder. Okay, so before I delve into some textual interpretations of the Grants Pass ruling, I thought it would be important to recenter ourselves around what criminalization means in the context of people with disabilities who are experiencing homelessness and poverty, because this is such an intersectional subject. While the scope of the Grants Pass ruling concerned explicit acts of ticketing, arresting and prosecuting people for living unsheltered, I would also argue that the system of criminalization is far broader and more sweeping than just this narrow definition and interpretation. Criminalization stems from the matrix of laws, policies, practices, tactics, et cetera that are designed to respond to social ills, with the intention of erasing those social ills from the public eye. Criminalization is about using the criminal legal system across all of its vestiges. That includes the policing of bodies, the forced removal of someone from their home, the forced separation of families, the delegitimization of a person's status and or human condition, all to devalue their existence in humanity across society. So how does the harm of criminalization read for persons with disabilities? Some statistics worth uplifting that I did not include on this slide, but thought were worth mentioning is that people with disabilities comprise a little over a quarter of the US population, but they still represent up to a half of the people killed by police, and over half of the incarcerated adult prison population. This was a statistic shared by activist and community lawyer, Talila Lewis. Also to uplift or re-uplift the prior statistic that Michelle noted in her presentation, and as the DREDF amicus brief cites, that persons with disabilities comprise, for persons of disabilities, less than 5% of US housing is accessible for moderate mobility disabilities, and less than 1% is accessible for wheelchair use. I also use this slide to uplift some really compelling quotes that come from a range of different allies in this movement, including appointed officials, of course, Justice Sonia Sotomayor, who said that it is unsurprising that the burdens of homelessness fall disproportionately on the most vulnerable in our society. She noted this specifically in the Grants Pass descent, which I'll review in a few slides. Then we also have a quote from Leilani Farha, who some of you may not be familiar with, but I highly encourage you to know just in terms of her role in leadership as the former UN Special Rapporteur on Adequate Housing, Ms. Farha states that "punitive responses "for persons with psychosocial disabilities "result in extended isolation, segregation, "further deterioration of mental health, "and an ongoing of homelessness and incarceration." And of course, we must define criminalization and encourage us to contextualize criminalization from the eyes of those impacted by it. So the first quote is from a person advocate with lived experience, Arvind, who says, "these hospitals", again, as someone who has spoken from the intersectional lens of disability, justice and homelessness. He says, "these hospitals are really just prisons "by another name, "constantly overcrowded and overstimulating, "not exactly the most healing system for anyone, "let alone someone experiencing a mental health crisis." Next slide please. So now let's move to the case itself. We know that the Supreme Court ruled on a very narrow constitutional question, predicated, as Michelle laid out, initially on the 8th Amendment grounds that prohibit cruel and unusual punishment, that in the literal sense would seem to have narrow implications on certain categories of people living unsheltered. But conversely, the decision has had and could still have farther sweeping consequences that are notably encouraged to look into further. The issue was narrowly about local laws that regulated public camping, and how the act of public camping comported with a more what we call originalist textual definition of the 8th Amendment's prohibition on the cruel and unusual punishment clause, as it was written and ratified when the Constitution came into creation. Now the issue that Justice Gorsuch looks at eventually is whether federal judges have the authority to decide an issue pertaining to the causes and conditions of homelessness. And he says no. The ruling, however, was broadly about how the criminalization of someone's status as a homeless person disproportionately affected or would affect those also experiencing housing instability, threats of housing displacement, contact with the criminal legal system, loss of employment, loss of essential public benefits, family policing, housing discrimination on the basis of race, disability, gender, and any other circumstances placing them at risk of homelessness. This language is not contextualized in the literal reading of this majority opinion, but if we look with the magnifying glass to really think of how much broader sweeping criminality is and the ways that the criminal legal system sweeps those implications are also legacies. Ultimately, again, the majority's ruling was not just about criminalizing the conduct of sleeping in public, but by extension of that, criminalized the mental, physical, psychosocial psychological states that undergirded this conduct. It criminalized the conditions of homelessness, the precipitating factors exacerbated by its existence, thus making the anti-camping and related restrictions direct infliction of cruel and unusual punishment, which was contrary to the majority's own disposition. And finally, and this is the last block on this slide. While the decision very briefly notes the challenges that people with physical disabilities face in what they say maneuvering safely around encampments, it conversely avoids mention of people with disabilities who are the subjects, the people who are living in encampments and other unsheltered spaces who may experience policing and criminalization. One way to interpret this exclusion is to say that the decision attempts to pit struggling groups of people against one another, rather than recognizing that those with disabilities, housed or unhoused alike, are often forced to navigate a world that is just not built for them. And this speaks to a larger concern that we all share about how Justice Gorsuch impending the majority decision, abandoned the context and arc of the human experience and talking about homelessness and these groups that are disproportionately affected by it. To contrast this, we have Justice Sotomayor's dissenting opinion. Next slide please. Thank you. Justice Sotomayor, on the contrary, reinserted and underscored the context behind failed housing policies and circumstances that are responsible for the homelessness crisis in the first place. Importantly, she termed mental and physical health challenges as precipitating causes of homelessness, noting further that individuals that are already suffering from these challenges may have no place to go if they're evicted from or forcibly displaced from their homes. I want to uplift that what many of us would agree makes the dissenting opinion all the more compelling, which are the stories that it centers on behalf of people with lived experience of homelessness, particularly those living with disabilities. Justice Sotomayor acknowledges at one point, that veterans with a history of mental health, including PTSD and people with disabilities disproportionately suffer a greater risk of homelessness. She also acknowledges that while shelter beds may be available in a certain locality, they may still be practically unavailable for individuals that are based on their own restrictions due to those individuals personal circumstances and identity markers. This alone emphasizes the importance of adequate shelter, shelter that is safe and inclusive for those in need of emergency services. I also wanna note two particular individuals that Justice Sotomayor uplifted in a more humane narrative within her opinion, specifically Debra Blake, an earlier lead plaintiff to the case who was disabled, unemployed, and elderly, who also passed away in 2021 while the 9th Circuit case was pending. Notably, Ms. Blake had been denied shelter access in Grants Pass, at the shelter known as the Gospel Rescue Mission, for failing to meet its 40 hour work requirements that were due to the limitations of her disability. Relatedly, another woman by the name of CarrieLynn Hill, had been denied shelter at this same facility for keeping a nebulizer in her room to manage her disability. Upon being rendered street homeless, Ms. Hill was ticketed for lying on a tarp to stay warm. Ultimately, in direct contrast to the majority ruling, Justice Sotomayor's dissent broadened the scope of the cruel and unusual punishment clause to read that it would be cruel and unusual to apply any penalty selectively to minorities, whose numbers are few, who are outcasts of society, and who are unpopular but whom society is willing to see suffer. This would of course pertain to people with disabilities and others inflicted by the intersections of marginalized experiences. Next slide please. Okay, so now that we have seen more closely how the Grants Pass ruling reinforces and validates criminalization laws and practices, it's even more notable against the backdrop of our federal constitutional history and the traditional establishment of our legal system. I argue that judicial powers are limited when enforcing rights for people with disabilities and those living in poverty, which probably is not something that should surprise us after this ruling and recent rulings. Although the Grants Pass ruling did predicate itself on an 8th Amendment analysis, the majority opinion penned by Justice Gorsuch, made very brief mention of the Equal Protection Clause of the 14th Amendment very subtly for its role in preventing governments from adopting what's called, what they term invidiously discriminatory laws between people that are based on certain class protections. The Equal Protection Clause is in theory about treating individuals in the eyes of the law as equal, but we could perhaps argue that applying it in the context of Grants Pass would still not have achieved the outcome that we would've desired on the basis of other Supreme Court precedent. As Monica highlighted in her presentation, the Modern Disability Rights Movement has seen judicial victories such as the salient Olmstead decision that took issue with the segregation of people with disabilities as a form of unlawful discrimination. But this and other victories challenged federal laws, like the ADA, the Fair Housing Act, and other perhaps state corollaries. And when I'm critiquing the role of courts and the legal system in this slide more broadly, I specifically say this in the context of their limited and narrow interpretations of federal constitutional amendments. So going back to this Equal Protection Clause situation, in interpreting the scope of that clause, our judicial system has failed historically to incorporate disability status as demonstrable by a 1985 Supreme Court decision that was based on some facts and circumstances in Texas. Even more generally, however, poverty and class were excluded in its discussion of laws and practices subjected to a heightened, or what they call strict scrutiny standard. So the strict scrutiny standard explicitly attributed to a class of people that are historically subjected to characteristics like race, national origin, religion, and alien age based discrimination, was not explicitly extended to those with disabilities, and especially persons living in poverty. Traditionally, the standard has applied to human traits considered immutable, conventionally defined as traits that cannot be chosen. But of course there is ample room for interpretation and criticism as to why any human trait or experience is or is not immutable. For example, people living in poverty, not just defined by the absence of a roof above their head, but by their experience if we talk about intersectionality, their experience of food insecurity, housing instability, the absence of basic material needs and financial resources are interlinked with some, if not all of these protected categories that are subject to that strict standard. This inextricable link between race and poverty and the reality that cycles of poverty come from intergenerational trauma should be sufficient considerations for courts to qualify poverty as a historically discriminated condition and or immutable characteristic in the eyes of the law. Next slide please. I just wanna draw your attention to some literature that a former colleague of mine and I, Carlton Martin, delved into in exploring this issue of court power and the limitations of the legal system, specifically when we talk about equal protection. We had written an article a couple of months ago in the Indiana Health Law Review that I encourage you all to read. And we came to the conclusion that recognizing this gap in legal doctrine is important for establishing broader interpretations and reforms of this strict scrutiny standard so that we can embolden the rights of people experiencing homelessness, and people with mental health and other disabilities. Ultimately, there are gaps in how the law explores the intersections of disability justice, mental health more generally, and poverty. And accordingly, we must push ourselves to look beyond judicial powers in our discussions about decriminalizing homelessness and disabilities. Next slide, please. So what then is the path forward, if it's not necessarily always with the court in mind? De-siloing our various movements and streamlining our efforts and discourse and how we talk about solutions for housing justice means that we have to achieve true disability justice while centering housing justice, knowing that true housing justice would also not be possible without an achievement of disability justice. All of this requires a conscious practice and dismantling of ableism in addressing solutions to housing access. This in term means a conscious recognition of how a person's existence at the intersections of race, poverty, class, gender, and other aspects of their identity and marginalized experience implicate the oppression of people with disabilities. It also places people, means placing people with disabilities at the center of their own lives, and as the subjects of right based measures centering their dignity and autonomy. I like to zoom out, or I'd like to zoom out to international law a little bit. Specifically the covenant on economic, social and cultural rights, which adopts seven key dimensions that the UN General Assembly had codified in terming what is satisfactory of adequate housing. The seven elements are enlarged on this slide. They are the security of tenure, which would protect against forced evictions, the availability of basic services, materials, facilities and infrastructure, affordability of course, habitability, location, so proximity to basic infrastructures and other resources, accessibility. So in the context of disability justice, thinking about reasonable accommodations, and prohibitions against discrimination and of course cultural adequacy. So these seven elements are hugely important in incorporating into the Disability Human Rights Framework as it pairs with the right to adequate housing as a matter of what the UN has termed the highest priority for national governments, recognizing that the right to adequate housing is recognized on an equal basis without discrimination. On the local level, we should be putting pressure on our state and local governments to not only enshrine and codify these requirements in law, but we should also be engaging in popular political education around how these requirements should directly support people with disabilities, holding lawmakers accountable if they fail to invest in those resources to house, and by extension, decriminalize people with disabilities in need of a home. Last slide please. A second lens, a second framework that I encourage and invite more of a partnership in understanding is the Poverty Abolitionist Framework, specifically re-imagining what compassionate treatment, what compassionate care would look like towards our neighbors and community who are living with disabilities and who are implicated by the housing and homelessness crises. This means to acknowledge society's reliance, first and foremost, on the criminal, legal and carceral system as a way of surveillance and policing people with disabilities experiencing homelessness, acknowledging the ways that these systems and the roles of courts play in forcibly institutionalizing and evicting poor people with disabilities, triggering further economic deprivation. All of this is the opposite of compassionate crisis intervention. Abolition at its core is about healing. It's about restorative transformation and love. Not to be limited to just tearing down systems of power and envisioning a world without harm, without policing and without criminalization. Decriminalizing homelessness and mental health in a post Grants Pass world requires us to intentionally center disability justice and dismantle ableism, as I mentioned earlier in the human rights slide, because of the ways here, that carceral systems, and I love this quote from Talila Lewis, "medicalize, pathologize, criminalize "and commodify survival, divergence and resistance." And to the closing slide with my contact information please. Oh, I guess some resources, yes, that again, some of which I had noted in this presentation, others including a Shadow Report that the Law Center had collaborated on with the University of Miami Law Human Rights Clinic, to the United Nations Human Rights Committee last fall that does a deep dive into the laws and practices criminalizing mental health in the United States, and a compelling op-ed article that an advocate had written just after the Supreme Court case came out around disability justice. And the next slide, please. Thank you and feel free to contact me at the Law Center. My information is there on the slide, and any of my colleagues at the Law Center, and kind of in the greater movement as we're talking about this, this is really important work, and so honored to be doing it with all of you. Thanks again. And passing it back to Michelle.

- Thank you.
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