Veronika Matysiak is a junior in the School of Foreign Service majoring in Culture and Politics. She is currently an Assistant Editor for the Georgetown University Undergraduate Law Review.
Vagrancy laws, which regulate public conduct and social order, have been a feature of English and American law for centuries. The body of vagrancy laws was subject to difference across states and localities, but governed offenses that would “unreasonably disturb or alarm the public,” including homelessness, loitering, begging, and other forms of disorderly conduct.[1] Modern jurisprudence, in particular Papachristou v. City of Jacksonville (1972), has found vagrancy statutes to be unconstitutional. However, despite this de jure ban, trespassing laws and anti-homeless measures have become a new method of enforcing the spirit of vagrancy laws.
American vagrancy laws have roots in English work laws, namely the 1351 Statute of Labourers, which restricted the movement of serfs in search of better pay by requiring “able-bodied persons” to maintain consistent wage labor.[2] This common law tradition was continued in the American colonies and post-revolution order. Article IV of the Articles of Confederation specifically excepted “paupers” and “vagabonds” from receiving the full “privileges and immunities of free citizens.”[3] Though this idea was not included in the equivalent article of the Constitution, the notion persisted, especially during the Jim Crow era, as increasingly restrictive vagrancy laws were adopted across the South to limit social mobility for African Americans.[4] The contemporary history of vagrancy laws reached a peak during the Civil Rights and Counterculture movements of the 1960s, when they were used to justify arrests of nearly anyone deemed “subversive” by the police, even being described as “an escape hatch from the Fourth Amendment’s protections against arrest without probable cause.”[5] In 1962, Rev. Fred Shuttlesworth, co-founder of the Southern Christian Leadership Conference, was arrested for loitering on a street corner, solidifying perceptions that vagrancy laws could be applied by police with impunity to make arbitrary arrests.[6]
Vagrancy laws were not always controversial. The Supreme Court previously upheld vagrancy laws in New York v. Miln (1837), explaining “We think it as competent and as necessary for a state to provide precautionary measures against this moral pestilence of paupers, vagabonds, and possible convicts; as it is to guard against the physical pestilence […].”[7] However, the Court reversed this position in Edwards v. California (1941), rejecting the previous notion that unemployment and poverty would create a threat to society and arguing that “poverty and immorality are not synonymous.”[8] The narrow standing of the Edwards decision allowed local enforcement of vagrancy laws to continue until the decision in Papachristou v. City of Jacksonville (1972). Finally, vagrancy laws were found to be unconstitutional for their failure to provide adequate notice of what constitutes criminal behavior and the lack of minimum guidelines to govern law enforcement.[9]
Today, the idea of enforcing public social conduct has returned to regulate the actions of homeless people. The availability of official figures on homelessness in the United States is limited, though estimates average around 550,000 homeless individuals per year.[10] The highest homeless populations are concentrated in urban areas, often living in public areas and receiving limited resources from city management. The high visibility of homelessness in cities has led to many laws criminalizing certain behaviors often exhibited by homeless people, including panhandling, sleeping in public areas, and remaining in public places for too long.[11] This increased scrutiny on high-risk populations has significantly increased the incidence of confrontations between homeless people and police. In San Francisco, a 2013 survey found that 10-24% of people in jail had been homeless at the time of their arrest, even though only about 1% of San Francisco’s population is homeless.[12] This disparity is also pronounced when comparing homeless people living in shelters versus those living on the street. A study conducted between 2015 and 2017 reported that unsheltered homeless people experience ten times the number of police incidents as sheltered homeless people.[13] This issue is also important to consider through a racial lens, as nearly 40% of the homeless population in the United States is African American.[14]
A relatively recent focus has been placed on the use of trespassing charges as a novel method of arresting homeless people without infringing upon First Amendment freedoms. In 2019, Eugene, Oregon, a city with one of the highest homelessness rates in the country, issued more trespassing charges than speeding tickets.[15] Strikingly, 75% of trespassing defendants were homeless.[16] This statistic is compounded by findings that African Americans are arrested on trespassing and vagrancy charges twice as often as white Americans.[17]
Some hope remains for reversing this alarming trend. Courts have acknowledged the unique challenges facing homeless people before the law and carved out exceptions. In 2016, the Massachusetts Supreme Court ruled that necessity could be used as a legal defense for addressing criminal trespassing charges.[18] In 2019, the Ninth U.S. Circuit Court of Appeals ruled that camping and sleeping bans could not be upheld in Boise, Idaho if there were no alternative options for shelter.[19] These lower-level verdicts correspond with national trends seeking to avoid criminalizing homelessness. In 2015, the Department of Justice argued that “criminalizing homelessness is both unconstitutional and misguided public policy, leading to worse outcomes for people who are homeless and for their communities.”[20] Indeed, the criminalization of homelessness and associated activities is the next legal challenge in the arena of civil rights. As long as localities criminalize homelessness, this will continue to be the modern iteration of vagrancy laws, disproportionately targeting low-income communities and people of color in urban areas.
[1] Garner v. Louisiana, 368 U.S. 157 (1961).
[2] Vagrancy and Disorderly Conduct, American Law and Legal Information, https://law.jrank.org/pages/2240/Vagrancy-Disorderly-Conduct-History.html (last visited Oct 17, 2021).
[3] U.S. Art. of Confed. art. IV.
[4] Vagrancy and Disorderly Conduct, American Law and Legal Information, https://law.jrank.org/pages/2240/Vagrancy-Disorderly-Conduct-History.html (last visited Oct 17, 2021).
[5] Risa Goluboff, The Police Power That Shaped the 1960s: Vagrancy Law Time (2016), https://time.com/4199924/vagrancy-law-history/ (last visited Oct 17, 2021).
[6] Ibid.
[7] New York v. Miln, 36 U.S. 102 (1837).
[8] Edwards v. California, 314 U.S. 160 (1941)
[9] Vagrancy Laws, Encyclopedia of the American Constitution (2021), https://www.encyclopedia.com/politics/encyclopedias-almanacs-transcripts-and-maps/vagrancy-laws (last visited Oct 17, 2021).
[10] The State of Homelessness in America, National Alliance to End Homelessness (2019), https://endhomelessness.org/homelessness-in-america/homelessness-statistics/state-of-homelessness-report-legacy/ (last visited Oct 17, 2021).
[11] Ryan Little, Cities Try to Arrest Their Way out of Homeless Problems ABC News (2020), https://abcnews.go.com/US/wireStory/cities-arrest-homeless-problems-71511969 (last visited Oct 17, 2021).
[12] Vera Report Links Homelessness to the Criminal Justice System, Vera Institute of Justice (2020), https://www.vera.org/newsroom/vera-report-links-homelessness-to-the-criminal-justice-system (last visited Oct 17, 2021).
[13] Five Charts That Explain the Homelessness Jail Cycle, Urban Institute (2020), https://www.urban.org/features/five-charts-explain-homelessness-jail-cycle-and-how-break-it (last visited Oct 17, 2021).
[14] Ryan Little, Cities Try to Arrest Their Way out of Homeless Problems ABC News (2020), https://abcnews.go.com/US/wireStory/cities-arrest-homeless-problems-71511969 (last visited Oct 17, 2021).
[15] Ibid.
[16] Ibid.
[17] Ibid.
[18] State Supreme Court Affirms Law Does Not Permit Criminalization of Homelessness, American Civil Liberties Union (2016), https://www.aclu.org/press-releases/state-supreme-court-affirms-law-does-not-permit-criminalization-homelessness (last visited Oct 17, 2021).
[19] Andrew Weber, Supreme Court passes on Boise Camping Ban Case, opening up Austin’s rules to lawsuits KUT Radio (2019), https://www.kut.org/crime-justice/2019-12-16/supreme-court-passes-on-boise-camping-ban-case-opening-up-austins-rules-to-lawsuits (last visited Oct 17, 2021).
[20] In The Shadow of Bell V. Boise, Street Spirit (Jan. 14, 2016), https://thestreetspirit.org/2016/01/14/in-the-shadow-of-bell-v-boise/.
