Vagrancy and Disorderly Conduct

The roots of laws against vagrancy and disorderly conduct in the United States can be traced to England. The breakup of feudal estates in fourteenth-century England, combined with severe regional labor shortages caused by the Black Death, resulted in the enactment of the Statute of Labourers in England (23 Edw. 3, New Statute, c. 1 (1349) (repealed) and 25 Edw. 3, Stat. 1, c. 1 (1350) (repealed)). The Statute of Labourers attempted to control the wandering of former serfs by requiring able-bodied persons without means of support to work for fixed wages and to refrain from traveling about the country to find better wages or to avoid offers of work. Originally aimed at enforcing labor, the English vagrancy laws came to be seen as serving other interests in the sixteenth and seventeenth centuries. Various conditions in England during this period, including the destruction of the monasteries during the reign of Henry VIII and the enactment of the enclosure acts (see Ledwith v. Roberts, (1936) 3 All E.R. 570, 585, 594 (C.A.)), which converted agricultural land into pasture for sheep, gave rise to a mass of people who wandered the country without means of livelihood. The vagrancy laws at this time were seen to protect local residents from the perceived potential criminality of vagrants and to safeguard parishes and municipalities from the financial burden of caring for nonresidents.

These policies underlying the English vagrancy laws were transplanted to colonial America. Under the Articles of Confederation, "paupers" and "vagabonds" were excepted from the guarantee of free movement between the states (art. 4). At the time of the founding, state and local governments customarily criminalized various forms of vagrancy, including loitering in public places. During the nineteenth century, the Supreme Court observed that it is "as competent and as necessary for a State to provide precautionary measures against the moral pestilence of paupers, vagabonds, and possibly convicts, as it is to guard against the physical pestilence. . . ." (Mayor of City of New York v. Miln, 36 U.S. (11 Pet.) 102, 143 (1837)). Until the mid-1960s, most states had broad vagrancy, loitering, and disorderly conduct laws. Vagrancy-style laws were employed at various times and in varying ways throughout American history to control the migration of the unemployed. They were also used after the Civil War to keep former slaves in conditions of servitude. During the Jim Crow era, vagrancy laws criminalizing the status of being unemployed were sometimes invoked to pressure African Americans to enter into unfavorable labor contracts.

Public order laws were rarely challenged in the courts until the 1960s, when attorneys became more widely available to the indigent following the Supreme Court's decision in Gideon v. Wainwright, 372 U.S. 335 (1963), which held that felony defendants unable to afford an attorney must be provided with one at state expense. A Jacksonville, Florida, ordinance reviewed by the Supreme Court in Papachristou v. Jacksonville, 405 U.S. 156 (1972), was characteristic of the vagrancy laws to be found in many localities during the period leading into the mid-1960s:

Rogues and vagabonds, or dissolute persons who go about begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children shall be deemed vagrants. . . . (156 n.1)

Typical disorderly conduct laws of the period often contained general provisions prohibiting acts likely "to unreasonably disturb or alarm the public" (Garner v. Louisiana, 368 U.S. 157, 165 (1961)), as well as provisions aimed at "breach[es] of the peace,. . .riotous or disorderly conduct, open obscenity, public drunkenness or any other conduct grossly indecent or dangerous to. . .citizens" (Barr v. City of Columbia, 378 U.S. 146, 148 n.2 (1964)).

Such laws were sometimes said to assist in crime prevention by authorizing police to intervene early in suspicious circumstances, before people had the opportunity to engage in serious criminal activity. Because these laws were vague in terminology and often did not predicate arrest on the commission of any specific act, however, they were also said to invite arbitrary and discriminatory enforcement. Critics charged that public order laws were sometimes used for purposes like breaking strikes or "rounding up" ostensible suspects (for whom there was no individualized suspicion) when a crime had been committed. Caleb Foote documented how these laws were employed by Philadelphia police in the 1950s to "clean up" city neighborhoods by summarily removing prostitutes, drunks, and other "undesirables" from public places (Foote). In addition, public order laws were sometimes improperly invoked by police during civil rights struggles in the South. Indeed, the immediate impetus for the Supreme Court's consideration of cases involving public order laws during the 1960s was often the use of such laws against participants in peaceful sit-ins and civil rights demonstrations.