www.loubar.org 4 Louisville Bar Briefs Kentucky’s New Public Camping Law from a Judge’s Perspective Chief Judge Ann Bailey Smith I have never been homeless, not for even one day of my life. I hope that most, if not all of you, can say the same thing. Having never been homeless, it is difficult for me to under- stand the circumstances that would result in a person becoming homeless, as I have family and friends who would be there for me should I lose my home. So, it is hard for me to picture myself as homeless, to put myself in the shoes of a homeless person, much less walk around in those shoes. In January of 2023, 581 people were found to be living on the streets in Louisville – not in shelters, but on the streets. More than 1,100 people were staying in shelters and transitional housing. I work downtown so it is not uncommon for me to see homeless individuals on Broadway, on Jefferson Street and on Main Street – some- times right outside of the building where the Louisville Bar Association is housed. I also regularly see a person living on the sidewalk in front of Shelby Campus on Shelbyville Road as I drive to and from work. The United States Supreme Court weighed in on the issue of how local governments can address the homelessness issue in City of Grants Pass, Oregon v. Gloria Johnson (No. 23-175 decided June 28, 2024). The Court granted certiorari to review the Ninth Circuit’s decision which found a violation of the Eight Amendment’s prohibition against cruel and unusual punishment with the en- forcement of an ordinance prohibiting public camping against homeless individuals when the number of homeless exceeds the number of practically available shelter beds. Justice Gorsuch, in writing for the majority, rejected “You can’t really get to know a person until you get in their shoes and walk around in them.” From “To Kill a Mockingbird” by Harper Lee majority opinion that cities and states are not bound to adopt public-camping laws, that is just what Kentucky did as part of House Bill 5, commonly referred to as the Safer Kentucky Act, which went into effect on July 15th of this year. It increases prison sentences for some offenses, prohibits probation for some offenses where probation was previously an option, and increases parole eligibility for some crimes. And then it criminalizes homelessness: A person is guilty of unlawful camping when he or she knowingly enters or remains on a public or private street, sidewalk, area under a bridge or un- derpass, path, park, cemetery, or other area designated for use by pedestrians or vehicles, including areas used for ingress or egress to business, homes, or public buildings, with the intent to sleep or camp in that area, when the area has not been designated for the purpose of sleeping or camping or the individual lacks authorization to sleep or camp in the area. A first offense is a violation which carries a fine, but becomes a Class B misdemeanor for a second or subsequent offense, which carries up to 90 days in jail and/or a $250 fine. This law is not aimed at aggressive pan- handlers who are homeless individuals; this targets anyone who is sleeping outside due to homelessness. And should there be any doubt that the legislature means what it says, the law goes on to state that: A government official or governmental body shall not adopt or enforce any pol- icy under which it directly or indirectly prohibits or discourages the enforcement of any law, order or ordinance prohibit- ing unlawful camping… One of the sponsors of the Safer Kentucky Act is Representative Jason Nemes of Jef- ferson County, who stated on his Facebook page that “We do not want our homeless population in jail. They don’t belong there. They belong in treatment centers or in job- training programs. So, when all of the op- tions we provided for the homeless person don’t work and a homeless person does go to court, then the judge has an additional (funded) option to push the person into treatment.” This appears to mean that Rep. Nemes anticipates the individual pleading guilty to unlawful camping and then getting a diverted or probated sentence with a condi- tion of successful completion of a treatment program. Not all homeless individuals have substance abuse disorders or mental health issues; some are just down on their luck. Not all homeless individuals are lacking job skills; some just need a job and reliable transportation to get to that job. What they all need is a home. Here is how I see this scenario playing out under the new law. An officer sees a home- less person sleeping on a sidewalk on Bard- stown Road. The officer gives the homeless individual a citation which directs him to appear in court on a specific day and time several weeks away. The homeless person does not have a bus ticket or the means to access any other form of transportation to get to the Hall of Justice. Even if he did, what would he do with his belongings which he keeps with him at all times while he makes his court appearance; he cannot risk having all of his possessions appear to just be aban- doned on the street. So, when he does not make his court appearance, then the judge must decide what to do. Typically, a criminal summons would be issued but that requires an address so the person can be served. Without an address, the only other option is to issue a bench warrant, which will result in the arrest of the person. So, let’s say the judge issues a bench warrant and imposes a bond of $100. The bench warrant gets served on the homeless person on a Saturday afternoon and he is taken to jail where he remains until his court appearance on Monday morning because he does not have $100 to post his bond. To resolve the charge of unlawful camping, he can pay a fine or he can go to a treatment facility. I’m a drug court judge and I know that beds in treatment facilities do not remain empty, so it may be a few days before a bed becomes available. Does the judge hold the homeless person in jail until that bed opens up? If not, then how does the court notify the homeless person when the bed becomes available? While I do not doubt Rep. Nemes’ sincerity when he writes that he does not want homeless people in jail, I do think that is going to be the reality when people are charged with and prosecuted for unlawful camping. I do not mean to suggest that there is an easy answer to homelessness. As Justice Gorsuch wrote in Grants Pass, “Those experiencing homelessness may be as diverse as the Nation itself – they are young and old and belong to all races and creeds. People become homeless for a variety of reasons, too, many beyond their control. Some have been affected by economic conditions, rising housing costs, or natural disasters. Some have been forced from their homes to escape domestic violence and other forms of exploitation. And still others struggle with drug addiction and mental illness.” While I would agree that a toolbox of ideas is needed to address this problem, I hope one of those tools will not end up being a hammer. Chief Judge Ann Bailey Smith presides in Divi- sion 13 of Jefferson Cir- cuit Court. n the Eighth Amendment challenge finding that the Amendment’s focus was on the type of punishment administered after a conviction and not on the offense itself as being consid- ered cruel and unusual. The Court held that by upholding the city ordinance it was not criminalizing a person’s status and cited as examples the fact that “a backpacker on vacation passing through town or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building” could be found in violation of the law. He did not address the distinction that the backpacker and the protester only tempo- rarily left their homes and those people have homes to return to, unlike the homeless indi- vidual. Justice Gorsuch spends considerable time distinguishing this case from Robinson v. California, 370 U.S. 660 (1962), where a person had been convicted of being under the influence of narcotics as proscribed by a California statute. The Robinson Court found that the crime itself was cruel and unusual because it criminalized a person’s status. The majority in Grant’s Pass disagreed with this precedent, quoted more from the dissent than from the Opinion of the Court, yet chose not to overrule it. Justice Gorsuch stressed that governments need the full panoply of tools in the policy toolbox in order to address the complicated issues posed by homelessness, with one of those tools being the threat of criminal penalties. Justice Sotomayor wrote the dissent, joined by two other justices, in which she said, “sleep is a biological necessity, not a crime.” She went on to write that the majority’s insistence that it was not making the status of being homeless a crime was mere words because the act of upholding the ordinance did just that. She said that the ordinance uses the “defini- tion of ‘campsite’ as a proxy for homelessness because those lacking ‘a fixed, regular, and adequate nighttime residence’ are those who need to sleep in public ‘to maintain a tempo- rary place to live.” While Justice Gorsuch twice stated in the PROFESSIONAL EXCELLENCE
