Vagrancy and Disorderly Conduct

Vagrancy and disorderly conduct are examples of a category of legal prohibitions commonly referred to as public order offenses. Such offenses share a number of general characteristics. They usually prohibit relatively trivial types of public misconduct such as, for example, aggressive panhandling, public drinking, or loitering in the vicinity of an automated teller machine. In the main, they provide for comparatively low-level punishments. In addition, police commonly exercise a considerable degree of discretion in the enforcement of public order laws. This is partly because such laws are often not formally enforced even when they are clearly violated. Instead, these laws are frequently invoked by police informally, to require offenders to put an end to behaviors seen to threaten the public peace. Public order offenses thus provide police with the legal authority to discharge their "order maintenance" or "peacekeeping" responsibilities, meaning those responsibilities associated with helping to maintain order in public places, as opposed to enforcing the criminal law.

It is impossible to provide a precise definition of either vagrancy or disorderly conduct. These offenses have been described differently at different times and the laws treating them have varied considerably from state to state. Historically, however, state legislatures and municipal authorities in the United States tended to define vagrancy and disorderly conduct very broadly so that these offenses operated, in effect, as catch-all provisions that subjected a wide variety of public behaviors and conditions to police authority. Vagrancy laws were often drafted not to prohibit particular acts of public misconduct, but instead to criminalize statuses—such as being a rogue, a known criminal, a vagabond, a loiterer, a habitual loafer, or a common thief. Thirty categories of vagrancy were identified in 1962 as then existing in laws to be found throughout the United States (Note). Similarly, disorderly conduct at around this time was in some places defined simply as being a vagrant. Even when disorderly conduct laws prohibited behaviors, rather than statuses, moreover, these behaviors were often defined very generally to include any conduct that tended to disturb the safety, health, or morals of others.

During the period from the 1950s into the 1970s, public order laws of this type were increasingly seen to pose significant problems. They imposed criminal sanctions on conditions or behaviors—like poverty or alcohol abuse—that were viewed by many as social or medical problems not properly within the ambit of criminal law. In addition, the breadth and vagueness of such laws conferred considerable discretion on police as to how they should be enforced—discretion that was frequently exercised in ways that discriminated against racial or ethnic minorities, as well as the poor. Because the penalties for public order offenses were often relatively trivial, moreover, the real punishment for such infractions was often simply the inconvenience and embarrassment of an arrest—a punishment that could be meted out solely at the hands of police. The criminal courts charged with handling prosecutions involving these low-level offenses were also poorly run and often failed to afford defendants even the basic essentials of a fair adjudication. Philadelphia magistrates' courts in the early 1950s, for example, routinely handled fifty or more cases in fifteen minutes or less. Mostly uncounseled defendants were rarely even informed of the charges, nor was there even a pretense of proving these charges by competent evidence.

The concerns of this period produced calls for legislative reform and some movement in this direction. Moreover, a rise in crime in the 1960s coupled with other factors, including a growing emphasis among police on criminal investigation, led many police departments in the 1960s and 1970s to de-emphasize order maintenance and to focus resources on the enforcement of laws against serious crime. Perhaps the most significant change in the area of public order law and its administration during this period, however, came as a result of federal constitutional decisions. Supreme Court cases extended the right to counsel and jury trial in the prosecution of many petty offenses. The Court rejected status as a basis for the imposition of criminal sanctions. Most significantly, many public order laws were invalidated as unconstitutionally vague or overboard.

This entry briefly describes the history of the broad "vagrancy-style" public order offenses invalidated during the 1960s and 1970s. It also discusses the Supreme Court cases that dramatically changed public order law and its administration during this period. Finally, the entry recounts how a growing emphasis on community policing and the quality of life in public spaces in the 1980s and 1990s sparked renewed interest in order maintenance by police. It describes how state legislatures and municipalities in the 1990s attempted to enact constitutionally acceptable public order laws to address the concerns with this class of offenses while at the same time affording police legitimate authority to be used in the amelioration of problems of crime and disorder.