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, 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, [and] persons able to work but habitually living upon the earnings of their wives or minor children.
Two fundamental constitutional defects arise from the vagueness inherent in traditional vagrancy laws. Initially, the definition of "vagrant" fails to give adequate notice of what criminal conduct is proscribed. As recognized in Connally v. General Construction Co. (1926), when a criminal statute "either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application," the due process clause requires its invalidation under the vagueness doctrine. This doctrine was first applied to a vagrancy-type statute in Lanzetta v. New Jersey (1939), which held unconstitutional for vagueness a New Jersey "gangster" statute punishing any "person not engaged in any lawful occupation, known to be a member of a gang consisting of two or more persons, who has been convicted [of a crime or at least three disorderly person offenses]." Papachristou applied this doctrine to traditional vagrancy laws, in which the generalized and all-inclusive definitions may encompass many types of innocent behavior.
The second aspect of the vagueness doctrine, even more important than the requirement of fair notice, is that a criminal statute must set forth minimal guidelines to govern law enforcement. Absent such guidelines, a criminal statute is subject to substantial abuse by police officers, prosecutors, and jurors on the basis of their own personal predilections. Imprecise definitions, like those contained in traditional vagrancy statutes, give law enforcement officers virtually unbridled discretion to make arrests on mere suspicion rather than on probable cause, and to use such arrests as a law enforcement tool to gather information and to interview persons about unrelated crimes. Moreover, as suggested in Justice hugo l. black's dissenting opinion in Edelman v. California (1953), they are also easily susceptible of being used against persons expressing unpopular views, as well as against the poor and minorities.
Traditional vagrancy statutes may also suffer from other constitutional defects. For example, Robinson v. California (1962) struck down a provision of a California vagrancy statute that made it a crime to be a "narcotics addict," on the ground that the statute violated the cruel and unusual punishment clause of the Eighth Amendment. In Powell v. Texas (1968), by contrast, the Court upheld a state statute that proscribed public drunkenness, even though the person so charged might suffer from chronic alcoholism. The Court noted in Powell that such a proscription differs from convicting someone for being an addict, a chronic alcoholic, mentally ill, or a leper. Rather than punishing mere status, the proscription focuses on the specific act of appearing drunk in public on a particular occasion—conduct that the state has an interest in prohibiting.
To the extent that vagrancy laws have been used to exclude undesirables from a state or otherwise to confine them geographically, Edwards recognizes that they may unreasonably burden interstate commerce. Moreover, such restrictions also may unconstitutionally impair the right to travel. And provisions of vagrancy laws that prohibit association with known thieves and other undesirables not only suffer from vagueness but also may violate an individual's right of association.
In view of the Supreme Court's decisions in the area of vagrancy laws, most of the antiquated provisions of such laws—which focus on controlling undesirables by proscribing various types of status or condition—no longer can withstand constitutional scrutiny.
James R. Asperger
(see also: Kolender v. Lawson.)
Amsterdam, Anthony G. 1967 Federal Constitutional Restrictions on the Punishment of Crimes of Status, Crimes of General Obnoxiousness, Crimes of Displeasing Police Officers, and the Like. Criminal Law Bulletin 3:205–241.
Foote, Caleb 1956 Vagrancy-Type Law and Its Administration. University of Pennsylvania Law Review 104:603–650.
Lacey, Forrest W. 1953 Vagrancy and Other Crimes of Personal Condition. Harvard Law Review 66:1203–1226.