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Vagrancy and Disorderly Conduct - Constitutional Considerations

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A number of Supreme Court cases decided in the 1960s and 1970s have affected the scope and administration of public order laws. Argersinger v. Hamlin, 407 U.S. 25 (1972), for instance, held that absent a waiver, no person may be imprisoned for an offense, even if it is classified as a misdemeanor or petty offense, unless represented by counsel. The Court held in Baldwin v. New York, 399 U.S. 66 (1970), that the right to jury trial applies to any offense for which imprisonment for more than six months is authorized. Though these cases by no means resolved all problems of fairness in the administration of public order laws, they did dramatically transform and improve procedure in the lower criminal courts, where public order offenses are generally prosecuted.

In 1962, the Court decided a case that had far-reaching implications for the scope of vagrancy-style laws. In Robinson v. California, 370 U.S. 660 (1962), the Court invalidated a state law that made it a crime to be a narcotics addict, stating that it violated the Eighth Amendment's prohibition against cruel and unusual punishment. In a later case, a plurality of the Court interpreted Robinson to mean that the punishment of "mere status" is unconstitutional: "[C]riminal penalties may be inflicted only if the accused has committed some act . . . which society has an interest in preventing" (Powell v. Texas, 392 U.S. 514, 533 (1968)). Though Robinson did not arise under a vagrancy or disorderly conduct law, its holding cast serious doubt on the constitutional validity of any public order law that provided for punishment of one's status as a common drunkard, loiterer, or the like, without proof of the commission of some criminal act.

In cases like Gooding v. Wilson, 405 U.S. 518 (1972), the Court next drew into question those public order laws with potential application to protected First Amendment activity. In Gooding, the Court invoked its overbreadth doctrine to invalidate a statute providing for the punishment of anyone "who shall, without provocation, use to or of another, and in his presence . . . opprobrious words or abusive language, tending to cause a breach of the peace" (405 U.S. at 519). In its traditional and most common form, the overbreadth doctrine permits individuals in certain circumstances to challenge a law, even when their own conduct might validly be prohibited under it, when the law could potentially reach activity that falls within the protections afforded to freedom of speech. The theory underlying this doctrine is that "overbroad" laws—laws reaching conduct legitimately prohibited by legislatures, but also constitutionally protected activity—should not be permitted to stand, lest they chill conduct that is deserving of constitutional protection. This doctrine led to the invalidation of a number of broadly worded laws prohibiting breaches of the peace in the 1960s and 1970s.

The Court did not directly address the constitutional status of a vagrancy law until 1972. In Papachristou, the Court invalidated Jacksonville's vagrancy ordinance as "void for vagueness." The Court held that the law violated the Constitution's due process guarantee by failing to give ordinary persons fair notice that contemplated conduct was forbidden and by encouraging arbitrary and erratic arrests and convictions. Writing for a unanimous Court, Justice William O. Douglas placed particular stress on the argument that an "all-inclusive and generalized" list of crimes that included such things as wandering or strolling about from place to place without lawful purpose encouraged discriminatory law enforcement (405 U.S. 166). In the Court's words:

The implicit presumption in these generalized vagrancy standards—that crime is being nipped in the bud—is too extravagant to deserve extended treatment. Of course, vagrancy statutes are useful to the police. Of course, they are nets making easy the roundup of socalled undesirables. But the rule of law implies equality and justice in its application. Vagrancy laws of the Jacksonville type teach that the scales of justice are so tipped that even-handed administration of the law is not possible. (405 U.S. 171)

Though it was not a basis for the Court's holding, the Papachristou opinion also observed that the Florida ordinance's classifications, which originated in the early English poor laws, were archaic: "The Jacksonville ordinance makes criminal activities which by modern standards are normally innocent" (405 U.S. 163).

The void-for-vagueness doctrine invoked by the Court in Papachristou was the basis for many lower federal and state court decisions invalidating vagrancy and disorderly conduct laws, both immediately before and after the Court's decision in that case. After the ruling in Papachristou, many states repealed their vagrancy laws, often replacing such elements of vagrancy as being a common prostitute or a habitual drunkard with separate, conduct-based offenses dealing with prostitution, public intoxication, and the like. Disorderly conduct laws remained common, but in many places were substantially revised, often along the lines suggested in the American Law Institute's Model Penal Code. The revisions aimed to make disorderly conduct laws more precise and to hinge punishment on the commission of specific acts, rather than on statuses.

Papachristou and related cases were extremely important to the legal authority of police to maintain order in public places. Collectively, these cases established that police could no longer enforce public order laws so vague that they in effect empowered police to devise their own standards of public decorum. Public order laws were required not only to deal with prohibited acts, rather than statuses, but to do so in language of adequate definiteness—in language clear enough to constrain the opportunity for arbitrariness on the part of local law enforcement.

Significantly, however, Papachristou did not articulate how far courts should go in demanding specificity in public order laws. Within months of the Papachristou decision, the Court noted in Grayned v. City of Rockford, 408 U.S. 104, 108 (1972), that courts could not require mathematical certainty in the language of such laws and that the exercise of some degree of police judgment in the employment of public order laws is necessary. Defining limits on the circumstances in which courts would entertain wholesale challenges to laws regulating trivial forms of public misconduct, however, was not of pressing concern by the time Papachristou was decided. Police had already shifted their attention away from order maintenance to focus on serious crime. Patrol by automobile, rapid response to calls for service, and the retrospective investigation of serious offenses—none of which involves police in the routine employment of public order laws—had become the principal operating strategies of police departments. It was not until the 1980s and 1990s that changes in policing philosophy caused many police departments to afford order maintenance a higher priority. Accordingly, it was at this time that the Papachristou reforms came up for closer reexamination.

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