Rounding Up the Undesirables: The Making of a Prostitution-Targeted Loitering Law in New York City.

• Author: Struening, Karen

We're trying to sweep the streets so that people can walk without being assaulted by these brazen women, and it's more effective to arrest them for disorderly conduct.

--Deputy Commissioner Jacques Nevard of the NYPD speaking to a New York Times reporter

"If we could go back to the old style of police work, when men on the beat could enforce standards of public decency and order, we could clean up Times Square in no time."

--Police officer interviewed by James Traub (2004)

The New York City Police Department (NYPD) objected loudly when New York's 179-year-old vagrancy law was struck down in Fenster v. Leary (1) in 1967 (Madden 1967). The vagrancy law considered prostitutes a kind of vagrant and had made it easy to round them up quickly. In the same year that New York's vagrancy law was struck down, a new antiprostitution law, section 230 of the New York State Penal Law, went into effect (Roby 1969). However, from the NYPD's perspective, this law only made rounding up prostitutes harder. It required vice officers to hang around street corners in plain clothes and wait for women to ask if they would like to exchange money for sexual services. Under intense pressure from local businesses and community groups in Times Square to take prostitutes off the streets, the NYPD turned to a suspicious-persons loitering law to make their arrests, but this did not prove to be a long-term solution. Caught up in the same civil libertarian law reform effort that had invalidated New York's vagrancy law, the suspicious-persons loitering law was struck down in People v. Berck (2) in 1973 (Montgomery 1973).The Fenster and Berck decisions appeared to be a win for civil liberties and a loss for the NYPD and the community groups and businesses that wanted prostitutes off the streets. However, three years after Berck was decided, the New York state legislature passed section 240.37 of the Penal Law, a loitering law that specifically targeted prostitutes. Now who was the winner?

This article is about the making of a loitering law in New York that specifically targeted prostitutes in 1976, after vagrancy and broadly written loitering laws were rejected by both the US Supreme Court and the New York State Court of Appeals, the highest state court in New York. Unlike catchall loitering laws, which apply to all persons engaged in suspicious behavior, targeted loitering laws are limited to purpose or place. After vagrancy and catchall loitering laws were struck down, many states passed loitering laws targeted at prostitution and drug use (Struening 2016,Trosch 1993).

My examination of a prostitution-targeted loitering law will show that there is substantial continuity between what Risa Golubuff (2016) calls the vagrancy regime and the new era of order-maintenance policing (Beckett & Herbert 2009). The end of the vagrancy regime was a great victory for due process and civil liberties. However, the legal community's absorption of civil liberties discourse had little impact on community and business groups (Chevigny 1969, Vitale 2008). After vagrancy and loitering laws were struck down by the courts, these groups continued to complain about prostitution in Times Square and the police continued to use roundups to arrest prostitutes in large numbers. My case of a loitering law targeted at prostitutes reveals that the defeat of the vagrancy regime was incomplete.

In her authoritative book Vagrant Nation, Goluboff (2016) uses the term vagrancy regime to capture a law and enforcement regime that gave the police the authority to control and contain socially marginal people. Carried to the colonies from England, the vagrancy regime continued in the United States for almost three-quarters of the twentieth century. Its mission was to maintain order in communities by expelling vagrants or containing them in specific neighborhoods (Hubbard 2012). Its mechanism consisted of vague, broad laws that empowered the police to stop and arrest individuals without evidence that they had committed actual crimes. The targets of the vagrancy regime were diverse but included prostitutes, alcoholics, drug users, poor people, men and women of Color, gay men, lesbians, and transgender women and men. As a strong civil liberties discourse took hold of the legal community in the 1960s, the Supreme Court began to make decisions that protected the accused against agents of enforcement. By 1971 and 1972, the nation's highest court struck down vagrancy and broadly worded loitering laws in Palmer v. City of Euclid (1971), (3) Coates v. City of Cincinnati (1971), (4) and Papachristou v. City of Jacksonville (1972). (5) The kind of discretion police enjoyed under the vagrancy regime was thought to have ended.

But had it? By the 1990s, a new form of order-maintenance policing began to take shape. It was referred to as new to distinguish it from the old vagrancy regime, which was thought to have died after Papachristou. It was also called new to suggest a clean break with the civil liberties and rehabilitative discourses that prevailed through the 1960s and 1970s (Garland 2001), resulting in the quality-of-life and broken windows discourses that justified the more punitive and aggressive forms of policing enacted in the 1990s that continue into the present (Beckett & Herbert 2009, Harcourt 2001).

The theoretical basis of the new order-maintenance policing regime, termed the broken windows theory, is often traced to an article by James Wilson and George Kelling published in The Atlantic in 1982. Broken windows theory is based on the idea that if low-level violations and misdemeanors are not strictly enforced in communities, more serious crime will follow. Wilson and Kelling (1982) locate the link between disorder (e.g., toleration of violations and misdemeanors) and serious crime in the message that disorderly communities send to criminals: no one cares about this neighborhood; you are free to operate here. Enhanced criminal activity soon follows, and the neighborhood deteriorates further. To avoid this scenario, Wilson and Kelling argue, police officers need to return to the role they played under the vagrancy regime--that of night watchmen and peacekeepers in charge of maintaining community standards. Writing a decade after the Supreme Court found vagrancy and loitering laws unconstitutional, Wilson and Kelling praise the form policing took under the vagrancy regime. However, they offer a new justification for containing and controlling socially marginal people: they are the agents of disorder and will bring more serious crime to the neighborhoods they inhabit.

Several scholars have contributed to a critical perspective on order-maintenance policing (Beckett&Herbert2008,2009,2010; Harcourt 2001; Roberts 1999; Smith 2001; Vitale 2008; Wacquant 2009). Neil Smith (2001) argues that the origin of the new form of order-maintenance policing can be traced to globalization and the growth of global cities as concentrated sites of capital. Cities around the world, in competition for corporate headquarters and investment, have attempted to create pleasant urban environments to serve as playgrounds for globe-trotting technocrats and individuals employed by transnational corporations. Global cities, and the increased inequalities that come with globalization, have exacerbated instabilities in the labor force, decreased affordable housing, and led to large cuts in social programs. This, in turn, has created greater disorder. The response of the neoliberal order is to displace loiterers, people drinking publicly, prostitutes, and homeless individuals. Punitive policing of low-level offenses is needed to clear the streets of these undesirables. Wacquant (2009) argues that this turn to a more punitive form of policing allows the neoliberal state to legitimize itself. No longer committed to its social welfare function, the state tells its productive citizens that it will keep them safe.

An early critic of broken windows theory, Bernard Harcourt (2001) argues that the emphasis it places on the order/disorder dichotomy leads to the social construction of agents of disorder, including young men and women of Color, LGBTQ youth of Color, homeless individuals, prostitutes, and drug users. These groups find themselves the targets of aggressive forms of policing, such as stop-and-frisk. Dorothy Roberts (1999) claims that the order/disorder distinction is parasitic on cultural representations of marginal groups. The police, arriving in a community and needing a way to separate the orderly from the disorderly, are likely to rely on negative stereotypes that portray, for example, young Black men as dangerous and prone to crime.

Alex Vitale (2008), writing about New York City, argues that white middle-class communities felt abandoned by liberal politicians who they believed were either not willing or not able to stop the rise of disorder in the 1970s and 1980s. Frustrated with the failure of underfunded social programs to get transients and panhandlers off the streets, these individuals organized and formed community groups that placed pressure on city officials and the police to clean up the city and restore New Yorkers' quality of life. Vitale explains that Giuliani's rise to power in 1993 was fueled by New Yorkers' sense that their city was out of control. Many residents of New York welcomed an aggressive policy toward the agents of disorder, even if it meant the sacrifice of civil liberties in a famously liberal city.

Beckett and Herbert (2008) claim that the creation of new techniques of urban social control are an unanticipated consequence of the end of the vagrancy regime. As we will see below, the police need new tools of enforcement if their old ones are taken away. Deprived of the vagrancy and catchall loitering laws that were used to maintain order in the past, states have had to invent new enforcement tools. These include "off-limits orders, and the creation of zones of exclusion...