Vagrancy Laws

Author:James R. Asperger

Page 2774

Historically, society has used vagrancy laws to punish undesirable or immoral persons considered to be dangerous because of their potential for engaging in criminal conduct. Such laws differed significantly from traditional criminal statutes in that they made it a crime to be a person of a specified status or condition. In the United States, the types of persons punished as "vagrants" have included rogues, vagabonds, habitual loafers, and others considered to be of immoral character.

The first vagrancy laws, which originated in England, required workers to live in specified locations and proscribed giving assistance to able-bodied beggars who refused to work. Late-fifteenth-century vagrancy laws provided that beggars and idle persons, after punishment, were to be banished.

Vagrancy legislation in the United States began in colonial times and closely followed the English model. In the nineteenth century, the Supreme Court in MAYOR OF NEW YORK V. MILN (1837) implicitly recognized both the objectives and necessity of such laws, stating in OBITER DICTUM : "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.?" More recently, the Court in EDWARDS V. CALIFORNIA (1941) expressly rejected this notion, observing that "[w]hatever may have been the notion then prevailing, we do not think that it will now be seriously contended that because a person is without employment and without funds he constitutes a "moral pestilence.' Poverty and immorality are not synonymous."

Edwards, however, was a narrow decision, which struck down under the COMMERCE CLAUSE a California statute making it a misdemeanor to bring an indigent, nonresident alien into the state. Thus, notwithstanding Edwards, vagrancy laws continued broadly to proscribe various types of status crimes until the Supreme Court's decision in Papachristou v. City of Jacksonville (1972).

In Papachristou the Court held under the VAGUENESS DOCTRINE that a vagrancy statute was unconstitutional on its face. The ordinance, a typical example of a traditional vagrancy law, subjected the following persons to criminal penalty because the city deemed them to be "vagrants":

Rogues and vagabonds ? dissolute persons who go about begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards...

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