Public Comment

The Moral Pestilence of Paupers:An examination of vagrancy law from the middle ages to present day Berkeley.

Thomas Lord
Thursday November 12, 2015 - 02:18:00 PM

[Editor's Note: This is a rather long piece. Some readers may want just to read the introduction and then scroll down to the conclusion.]

Introduction: Disposing of the superfluous workforce

iIt is the custom in Berkeley these days to say that the visible homeless people in and around our commercial districts are guilty of crimes.

The litany of complaints includes unwanted panhandling, offensiveness by vulgar expression, intimidation by the presence of dogs, intoxication, petty theft, inappropriate elimination, intimidation by displays of madness, and the excessive occupation of public space. The visible homeless are accused of being bad for business. Some people complain that they avoid the commercial districts entirely, owing to the irksome presence of the visible homeless.

The policy debate around these issues is polarized as follows:

At one pole there are calls for expanding the powers and activities of the police in order to better regulate public behavior. Examples include calls to legislate against panhandling near street parking payment kiosks, and to increase enforcement of existing prohibitions against sleeping in various convenient locations. Advocates for these kinds of policies often assert the moral culpability of the visible homeless for their status and for their conduct. Young and apparently able-bodied adult homeless people are apt to be characterized as the "homeless by choice", parasitic loafers and a moral hazard to all. When the homeless cannot be held morally culpable for reasons of apparent insanity, still a moral failing is asserted: the moral failing of society at large for negligently and cruelly allowing such people to be present in public space without close supervision. 

At the other pole in these debates, the moral agency of the visible homeless is de-emphasized. The moral obligation assigned to society shifts: At this pole the homeless are relentlessly measured and assessed as the innocent victims of extrinsic circumstance or biologic fate. The homeless person is more apt to be described as the cast-aside former foster child, the sufferer of an organic mental illness, the born-that-way, queer runaway, or the abandoned military veteran. At this pole the policy cries are for increased medicalization of the homeless through expanded treatment programs or supportive "transition" programs. 

It seems to me that in one sense, there is not much that separates these two poles. Both sides agree to "police" the homeless by one means or another, in order to regulate and diminish their visibility on commercial streets. The main difference seems to be that on one side this policing role should fall mainly to the actual municipal police, while on the other side, it should be the job of society's "medical police", including aid agencies and their "social medicine". 

Consider, for example, the prospect of housing homeless persons in a facility where they can be constantly monitored, required to perform various self-improvement tasks on pain of punishment, and restricted in their travel and association (however slightly) by guards. Given that description: are we discussing the county jail or supportive housing? Do not the calls for latter seem equivalent to demands for a more humane version of the former? 

It is not my intent here to trivialize the differences. The gap between brutal and humane policing is large and important. My point is simply that there is some larger, unspoken agreement already underway, a goal that both sides embrace (though each in its way): an aspiration for a kind of social cleansing, particularly of our city's commercial districts, whether it is brought about by arresting offenders or by forcibly insisting upon their personal redemption. 

Describing the universal agreement that way, as a "social cleansing", is sure to elicit the objection that I am exaggerating or even distorting the situation. There is a kind of "politics of respectability" around the questions of homelessness. No respectable person would behave in the manner of the visible homeless, say some. No respectable person would withhold aid meant to escort the visible homeless out of their condition, say others. From those points of view it is not a social cleansing at stake so much as a social restoration, healing, or repair. 

Three facts convince me that "social cleansing" is the better description: 

First, there is the coercive nature of proposals from both ends of the political spectrum. I encountered a number of homeless people who do not wish to accept either the punitive or the well-meaning-aid forms of coercion. I heard this from people who engaged in no crime that I could see, who behaved peacefully and non-threateningly, whose only offense seems to be that some part of the population takes umbrage at the appearance and idleness of these homeless people. 

Second, I noted that both poles in the homelessness debate, the fans of punitive measures and the fans of social aid measures, so often speak of "ending homelessness". Both sides envision some future utopia in which homelessness has, after a vigorous collective effort, disappeared from the streets of our commercial districts. On that day, no such people as the homeless will exist anymore. 

Third, I could not see how to reconcile anti-homeless legislation with constitutional guarantees of liberty and due process and I observed that, indeed, the courts have found such legislation to be fraught with constitutional peril. 

We are left with a paradox: 

Neither side openly agrees that they intend a social cleansing but both of their utopias would require one. 

Neither side agrees they are tyrannical, yet both propose coercive measures against innocent and benign free peoples. 

How did the policy debate acquire this disingenuous character? How did we come to agree to this universal agenda of cleansing commercial districts of homelessness, even if nobody would admit to that goal? 

In search of an answer I did some research into the history of vagrancy laws. I was particularly interested in how vagrancy laws related to power relations in society, over the course of this history. What I learned was very interesting and helps to shed some light on how we got here, and what is at stake. 

In this essay, I will make, tentatively, the following argument: 

Vagrancy law has seen at least three periods of significant alteration and elaboration since the 14th century, each time playing a role in reconfiguring the production relations of society: 

1. The transition from feudalism to capitalism (roughly the 14th through 18th centuries).

During this period, vagrancy laws developed as a system for compelling the poor to provide labor, and governing where they were obliged to work. At first vagrancy law was used to prop up feudal relations after the Black Death. Later, vagrancy law helped to turn paupers into the proletariat -- that is, turn them into people obliged to sell their labor power -- after Enclosure. 

2. After the Emancipation and in the wake of the destruction of the slave-based plantation system.

In the 19th century, in the U.S., vagrancy law continued to be used to govern the supply of labor but it now additionally was used to help construct a new, white-supremacist system of racially segregated employment and forced (prisoner) labor. 

3. In the wake of the Great Depression.

The depression brought a massive and persistent drop in the demand for labor. Therefore, vagrancy law was no longer useful for expanding supply to an already over-supplied labor market. The enforcement practice of vagrancy law increasingly functioned as a purely discretionary mechanism allowing the police to arrest, and the courts to imprison, almost any person on the flimsiest of excuses. 

The vagueness and political flexibility of vagrancy law made it a battlefield during the mid-century civil rights struggles. Earlier in the century, vagrancy law was a flexible tool for policing racial segregation. Towards the end of the century, legal attacks on the legitimacy of vagrancy law were a way for the civil rights movement to gain territory. To overcome constitutional objections vagrancy law began to shift from an exceptionally vague set of statutes to some that are hyper-specific. (For example, in Berkeley, one issue is the exact number of feet one must be from a parking payment kiosk if one is to panhandle.) At the same time, the ostensible purpose of the laws shifted from an open-ended prohibition against the undesirable, to a specific protection of a public purpose. For example, in Berkeley the alleged purpose of vagrancy laws has become to protect the function of commercial districts as centers of retail commerce. 

What do these three episodes have in common? Each of those three critical periods, when vagrancy law took a significant turn, started with a sudden, massive displacement of the productive class (workers). The disruption in each episode was followed by a significant reconfiguration of production relations: (1) The interruption of the Black Plague was followed by the gradual transition to capitalism; (2) The Civil War and Emancipation was followed by the emergence of Jim Crow society; (3) The Great Depression was followed by the emergence of government supervision of the domestic economy starting with the New Deal, then World War II, and then in attempting to dismantle Jim Crow society. 

The overarching trajectory of vagrancy law has been from a time when it was necessary to make labor compulsory, to a time when it has become necessary to make consumption compulsory. Today, vagrancy law means roughly: spend money or move along. 

The Great Depression marks a critical turning point and the history of vagrancy law can usefully be divided into the period before this event, and the period after: 

From the 14th through the early 20th century, the principal use of vagrancy law was to forcibly guarantee a supply of labor power. The first task of vagrancy law was to transform displaced peasants into proletariat. The second task was to return emancipated slaves to a revised form of slavery. 

After the Great Depression, labor power was generally over-supplied. The legitimacy of vagrancy law came into question as these laws were stripped of their former purpose. In the 21st century, the crisis of legitimacy has been (momentarily) resolved by making vagrancy law hyper-specific and, at least ostensibly, narrowly focused at defending retail districts. 

Formerly, the main defense against being arrested for or sentenced for vagrancy was proof that one had a job and was earning a wage. 

Now, today, the main defense against vagrancy enforcement is proof that one is spending money. 

The legitimacy crisis of vagrancy law has nevertheless not disappeared although it has changed form. The hyper-specific forms of vagrancy law, aimed at excluding the destitute from areas where retail commerce takes place, are increasingly questioned on the grounds that they may tend to make it impossible for homeless people to survive. 

Early on, the urgent task of vagrancy law was to bring into being, by force, the proletariat characterized as those who are forced by state power to work. 

Alarmingly now, in what might speculate is "late capitalism", the urgent concern of vagrancy law is how best to dispose of a population that has become wholly superfluous to production and capitalist consumption. 


Prelude: On the moral pestilence of paupers

In 1941, vagrancy law visibly transitioned from the task of ensuring (by force) a supply of labor for capitalist expansion, to the task of managing (by force) an increasingly superfluous reserve army of labor. The moment of transition is memorialized by a 1941 supreme court decision in the case of of "Edwards v. California". 


In 1939 a man named Frank Duncan, a resident of Texas, out of regular work during the Great Depression, was employed by the Works Progress Administration. Since he was employed by a federal emergency relief program Duncan was, in the vernacular of his day, an "indigent" man. Duncan was part of a vast army of suddenly and surprisingly useless workers. 

Duncan's brother-in-law, a California resident recorded only as Edwards, traveled to Texas to fetch Duncan and help him move to California. At their departure from Texas, Duncan had only $20 to his name. By the time they arrived back in California, Duncan was flat broke. The court records that Duncan then spent his first 10 days in California at the home of his sister and her husband, Edwards. During that time, Duncan applied for and was granted public assistance. 

Not much later, Edwards was arrested. He was tried, convicted, and sentenced to six months in jail. His crime was that he knowingly assisted an indigent man to migrate to the state. 

As late as 1941 it was illegal in California to assist an indigent person into the state. Section 2615 of the Welfare and Institutions Code read: "Every person, firm or corporation, or officer or agent thereof that brings or assists in bringing into the State any indigent person who is not a resident of the State, knowing him to be an indigent person, is guilty of a misdemeanor." 

Edwards' appeal reached the U.S. Supreme Court who overturned the California law for encroaching on the federal jurisdiction over interstate commerce. Almost as a technicality, the 1941 court had to first set aside a precedential opinion from 1836: 

"There remains to be noticed only the contention that the limitation upon State power to interfere with the interstate transportation of persons is subject to an exception in the case of 'paupers'. It is true that support for this contention may be found in early decisions of this Court. In City of New York v. Miln [...] it was said that it is 'as competent and as necessary for a state to provide precautionary measures against the moral pestilence of paupers, vagabonds, and possibly convicts; as it is to guard against the physical pestilence, which may arise from unsound and infectious articles imported ....'" 

In 1836, the impoverished, idle worker represented a "pestilence of paupers". Correctly or incorrectly, the indigent could be regarded as a clear and present, mindless yet relentless threat to the survival of the community: A literal "pestilence". 

In setting aside the 1836 viewpoint, the 1941 court replied simply: 

"Whatever 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 v. California.) 

In retrospect, this was a huge shift. 

The Great Depression reflexively shook off of millions of workers, almost overnight. It made it impossible to continue to regard the pauper as an infectious agent attacking the social body because, suddenly, so much of the social body itself was composed of the recently pauperized. By the 20th century, in 1941, the law was forced to set aside the old notion of pestilence for the new: "Poverty and immorality are not synonymous." 

With that simple recognition that employment could no longer be obligatory if for so many millions it could not be supplied, the court began to distinguish the individual condition of idleness, a moral failure and a social pestilence, from the individual circumstance of destitution, an imposed pauperization not far removed from what today we call homelessness. 

It seems to be about here, in the thick of the Great Depression, that today's debates about criminalizing homelessness first emerge in recognizable form. 


Medieval Origins of Vagrancy Law

Much has been written about the medieval origins of vagrancy law and accordingly I will not dwell on the topic. Briefly: 


In 14th century England the Black Death devastated the feudal order and left in its wake a shortage of labor and a sharp increase in the numbers of able-bodied beggars. Vagrancy laws were first an attempt to rebind the poor to the land and the compulsory labor of feudal production. Then, as feudalism gave way to capitalism, there was a kind of reversal. As enclosure laws and the breakdown of feudal property pushed peasants off the land, forcing their migration, vagrancy laws became a means to compel them into wage slavery. The peasantry became the proletariat, so to speak. 

Albert Tschopp's doctoral thesis from 1903 (University of Bern) rehearses an account of the sort that courts on both sides of the Atlantic would later take up: 

"An enormous increase of beggary took place after the terrible Black Death (1348). Scarcity of labour and misery were the primary causes. The roads became infested and able-bodied men capable of work were found disguising themselves as cripples, often only awaiting an opportunity to spring upon and rob the unwary. 

"The beggar of this period was, from general account, a dangerous, cunning and ferocious individual, extorting alms from the passer by. 

"Strenuous laws now followed one after another, especially directed against the 'able-bodied' beggar who refused to work. In the last year of King Edward III we find the Commons petitioning the king: 'that Ribalds and sturdy Beggars may be banished out of every town'." (p.4-5 "The Beggars of England in Prose and Poetry, From Earliest Times to the End of the 17th Century"). 

And in 1937, an English jurist (in Ledwith v. Roberts) described the transition from feudalism to capitalism: "The early Vagrancy Acts came into being under peculiar conditions utterly different to those of the present time. From the time of the Black Death in the middle of the 14th century till the middle of the 17th century, and indeed, although in diminishing degree, right down to the reform of the Poor Law in the first half of the 19th century, the roads of England were crowded with masterless men and their families, who had lost their former employment through a variety of causes, had no means of livelihood and had taken to a vagrant life. The main causes were the gradual decay of the feudal system under which the labouring classes had been anchored to the soil, the economic slackening of the legal compulsion to work for fixed wages, the break up of the monasteries in the reign of Henry VIII, and the consequent disappearance of the religious orders which had previously administered a kind of `public assistance' in the form of lodging, food and alms; and, lastly, the economic changes brought about by the Enclosure Acts." 


The reconstruction of slavery after the civil war

In the 19th century, the Civil War in the United States ended the plantation system and slavery. In the latter part of the 19th century and well into the 20th century, vagrancy laws were commonly applied to compel poor blacks into both segregated employment and, in some cases, slave labor as imprisoned criminals. 


The role of vagrancy laws after the Civil War is illustrated by this brief 1917 news item from The Evening Independent, a newspaper in St. Petersburg, Florida. Many similar stories can be found. Under the headline "Local officers after vagrants" the subtitle is given: "All Loafing Negroes Are To Be Sent Up To Work For The County": 

"Local officers, both city and county, are united in an effort to rid St. Petersburg of loafing negroes and one has already been sentenced to serve 90 days at hard labor. The police and the local constable are working together and it is believed that the idle negroes can be made to work. 

"In St. Petersburg today are a great many negroes who will not work, living off the wages paid their wives or relatives. There is plenty of work now and the contractors are trying hard to get laborers but are unable to get enough men although there are scores of able-bodied, sound negro men loafing about the quarters. These loafers are to be arrested and unless they are able to show good cause why they were not at work will be turned over to Magistrate R. R. Carter who will impose stiff sentences similar to that he imposed yesterday afternoon." 

In other cases, vagrancy laws were applied to black Americans not to compel their labor, but to forbid their migration. 


After the Great Depression: A superfluous reserve army of labor

A third great turn in vagrancy law was prompted by the great depression. 


The depression gave rise the displacement associated with an over-supply of labor as the result of productivity breakthroughs in industrial capitalism. There were suddenly more workers than could be employed. Vagrancy law began to lose its usefulness as a tool for forcing people to work. 

Vagrancy laws adapted to this change first as a tool to reinforce failing lines of racial segregation, and then as a tool to compel economic consumption (rather than to compel labor). 

In the courts, the decades after the second world war were generally a time of increasing restraint on the police. It was during this period, for example, that limits on warrant-less searches were strengthened, that it became obligatory to clearly inform arrested persons of their rights, and that the rules against arrest on false pretenses were strengthened. 

Until the late 1960s, vagrancy laws stood as an exception to that general trend. Vagrancy law had a peculiar status in American law. First, these laws were vaguely written, giving police broad discretion to arrest more or less anyone at any time. Second, in part because of their long history, vagrancy laws were often an exception to the usual requirements on judicial proceedings. In particular judges often had broad discretion to deny jury trials and even issue summary judgments while not taking any meaningful testimony from the defendant. 

The legal scholar Celeb Foote studied the situation in 1951, observing hundreds of vagrancy proceedings in Philadelphia courtrooms. Foote recorded his observations at some length in a 1956 Universy of Pennsylvania Law Review article ("Vagrancy-Type Law and Its Administration"). Here is a small excerpt: 

"The next morning, the Philadelphia Inquirer ran an editorial under the title, "Get Bums off the Street and Into Prison Cells," ' which noted with satisfaction that three month sentences were being imposed and that "... Chief Magistrate Clothier has threatened them with jail sentences of two years." The editorial felt that "If they have nothing worse to expect from the police than a warm cell to sleep it off for the night, the vagrants will hardly be discouraged. But two years in prison is something else again; only the most hardened bum will take a chance on that." The editorial had no suggestions on how one who was already a "bum" could avoid taking the chance. 

"The hearings that morning moved even more rapidly; between 50 and 60 defendants were handled between 10:39 and 10:54. Five defendants were committed under the same procedure already noted, the magistrate merely calling their names, taking one look, and then pronouncing sentence. To another he said, "You look like one, three months." 

Such arbitrary application of detention and sentencing is a flexible tool and the powers that be took every advantage of it. Foote notes the use of vagrancy law to prevent migration (especially of racial minorities) and take custody of those persons regarded with suspicion, but emphasizes something else: the use of vagrancy law as a "catch-all of the Criminal Law": 

"[One of the] major policy [objectives] which is served by vagrancy law administration in Philadelphia has been almost completely ignored by courts and writers. When a magistrate talked about "cleaning up his district," he was referring to the role of vagrancy-type enforcement as the garbage pail of the criminal law. Prosecutions were carried on in a bewildering variety of other situations which had no relation to the suppression of criminality. These included cleaning "loafers" out of the city center, "mopping up" the drunkards in the skid row, punishing attempted suicides, obliging persons who desired to send unwanted aged relatives to the House of Correction on cooked-up vagrancy charges, convicting mentally ill persons of vagrancy and likewise confining them behind the House of Correction's bars, punishing minor nuisances which do not amount to any crime and vindicating affronts to police dignity. The common ground which brings such a motley assortment of human troubles before the magistrates in vagrancy-type proceedings is the procedural laxity which permits "conviction" for almost any kind of conduct and the existence of the House of Correction as an easy and convenient dumping-ground for problems that appear to have no other immediate solution." 

The vagueness and flexibility made vagrancy laws popular with local authorities. At the same time, that vagueness gave rise to a crisis of legitimacy. A project like the social cleansing of a district benefits from not having to state exactly why a defendant is being punished. Yet conversely, to maintain its legitimacy, the law must constantly be able to articulate why it metes out the punishments it does. In the case of vagrancy laws, their vagueness at once facilitated cleansing projects and, simultaneously, called into question the legitimacy of those exercises of power. 

Perhaps this is why, in the 1960s and since, there is an increasing obsession with understanding exactly who the vagrant is. A scientistic quest takes shape, hoping to discover proof of the vagrant's essential difference, a difference that will explain why the police are doing what they do. The legalistic need is for an explanation of the vagrant that will justify his removal from society. 

Medicalization of vagrancy is a common theme for justifying its policing. On September 24, 1962, the St. Petersburg Times announced in a headline: "Romantic hobo gone; Contemporary vagrant nothing but sociopath". 

The meat of the story is dressed up as the latest in social science: 

"Modern vagrants seem to be outcasts in a complex, technical world which for its survival, finds their irresponsibility intolerable. 

"In keeping with this technical theme, sociologists have researched skid rows, notably West Madison and North Clark Streets in Chicago, and have created a new and scientific name for vagrants. 

"Sociopaths, they're called. 

"Which loosely defined means a person who can't or won't adjust to normal society." 

"... The sociopath rejects both responsibility and respectability. If he works, it's done begrudgingly, and it's as a dishwasher or unskilled laborer. His home is the culvert, an alley, the mission, the jail. 

"Sociologists discovered, interestingly enough, that the vast majority of vagrants, or sociopaths, aren't alcoholics at all. True, they guzzle anything containing alcohol, but not by compulsion. ..." 

Conversely, the civil rights movement was helping to delegitimize the use of vagrancy laws to maintain racial segregation and oppression. 

Joseph Waller (later called Yeshitela Omali) a black resident of St. Petersburg, a member of SNCC, and a professional proof-reader was arrested in May of 1964 on trumped-up charges of vagrancy. He had been unable to produce identity papers when stopped. Other African Americans in St. Petersburg recalled that during the course of this arrest, Waller was beaten. On May 29th of that year, the St Petersburg Times noted of the arrest only that: 

"The 22-year-old Negro was arrested and handcuffed as he walked with a friend on Fifth Avenue South on his way home from work. Patrolman James Brodner said Waller was jailed because he could not produce proper identification. His friend was released when he was recognized by another policeman. 

"Waller's case was dismissed by Municipal Court Judge Laurence D. Childs. Brodner failed to appear in court." 

The paper might not have reported the incident at all but for the fact that Waller sought and was granted an injunction against the City of St. Petersburg and Police Chief Harold C. Smith, ordering them not to use fingerprints and photographs taken during the arrest. (In fact the fingerprints had already been sent on to the FBI.) 

The evident racism of the arrest was an unspoken truth for the Times. They would not openly write about the arrest as racially motivated until a 1965 editorial. In 1964, they were more circumspect, noting merely that: 

"[Police Chief] Smith said 'at this time' he is neither defending nor criticizing Brodner's actions. 

"`However, as far as defending stopping people for questioning, I will defend that,' he said 

"'This particular incident,' Smith said, 'was more of a personality clash between the two of them than a civil rights issue.'" 

Two weeks later, on June 8th, 1964, the Times ran the results of their own statistical research into local vagrancy arrests: for example that two thirds of the arrested were white, that most were men, and most had prior arrests on similar charges. A tell-tale pull-out from the article explains: 

"EDITOR'S NOTE: This study of all vagrancy charges made by St. Petersburg police in a week selected at random was conducted to better understand some recent vagrancy arrests which made bigger news than vagrancy arrests generally do." 

The questions of general obnoxiousness 

Historic vagrancy law lost most of its legal legitimacy in the years following the passage of federal civil rights legislation. It had lost its usefulness for compelling labor in the 1930s. It had become a vague tool for resisting the civil rights movement in the mid-20th century. In the late 1960s and 1970s, many vagrancy laws were overthrown as the civil rights movement pushed back. 

The case of Papachristou v. City of Jacksonville came before the U.S. Supreme Court in 1971, is widely cited, and helps to illustrate the logic of this turn in vagrancy law. 

Justice William O. Douglas had sat on the bench back in 1941 and helped to decide the Edwards case ("Poverty and immorality are not synonymous"). He concurred with the court's decision in favor of Edwards. 31 years later, still on the bench, Douglas cited that earlier decision in the new case of Papachristou v. City of Jacksonville. 

Part of the case concerned Jimmy Lee Smith, of Jacksonville, who was "a part-time produce worker and part-time organizer for a Negro political group. He had a common-law wife and three children supported by him and his wife. He had been arrested several times but convicted only once. Smith's companion, Henry, was an 18-year-old high school student with no previous record of arrest." 

Smith's arrest is recorded: "This morning it was cold, and Smith had no jacket, so they went briefly into a dry cleaning shop to wait, but left when requested to do so. They thereafter walked back and forth two or three times over a two-block stretch looking for their friend. The store owners, who apparently were wary of Smith and his companion, summoned two police officers who searched the men and found neither had a weapon. But they were arrested because the officers said they had no identification and because the officers did not believe their story." 

"Heath and a codefendant were arrested for "loitering" and for "common thief." Both were residents of Jacksonville, Heath having lived there all his life and being [405 U.S. 156, 160] employed at an automobile body shop. Heath had previously been arrested but his codefendant had no arrest record. Heath and his companion were arrested when they drove up to a residence shared by Heath's girl friend and some other girls. Some police officers were already there in the process of arresting another man. When Heath and his companion started backing out of the driveway, the officers signaled to them to stop and asked them to get out of the car, which they did. Thereupon they and the automobile were searched. Although no contraband or incriminating evidence was found, they were both arrested, Heath being charged with being a "common thief" because he was reputed to be a thief. The codefendant was charged with "loitering" because he was standing in the driveway, an act which the officers admitted was done only at their command." 

Another arrest, consolidated in the court proceedings, concerned two mixed-race couples out on a date: 

"The facts are stipulated. Papachristou and Calloway are white females. Melton and Johnson are black males. Papachristou was enrolled in a Job-training program sponsored by the State Employment Service at Florida Junior College in Jacksonville. Calloway was a typing and shorthand teacher at a state mental institution located near Jacksonville. She was the owner of the automobile in which the four defendants were arrested. Melton was a Vietnam war veteran who had been released from the Navy after nine months in a veterans' hospital. On the date of his arrest, he was a part-time computer helper while attending college as a full-time student in Jacksonville. Johnson was a tow-motor operator in a grocery chain warehouse, and was a lifelong resident of Jacksonville. 

"At the time of their arrest, the four of them were riding in Calloway's car on the main thoroughfare in Jacksonville. They had left a restaurant owned by Johnson's uncle, where they had eaten, and were on their way to a nightclub. The arresting officers denied that the racial mixture in the car played any part in the decision to make the arrest. The arrest, they said, was made because the defendants had stopped near a used-car lot which had been broken into several times. There was, however, no evidence of any breaking and entering on the night in question. 

"Of these four charged with "prowling by auto," none had been previously arrested except Papachristou, who had once been convicted of a municipal offense." 

Justice Douglas took note of the history of vagrancy law, writing: 

"Jacksonville's ordinance and Florida's statute were "derived from early English law," Johnson v. State, 202 So.2d, at 854, and employ "archaic language" in their definitions of vagrants. Id., at 855. The history is an oftentold tale. The breakup of feudal estates in England led to labor shortages which in turn resulted in the Statutes of Laborers, 3 designed to stabilize the labor force by prohibiting increases in wages and prohibiting the movement of workers from their home areas in search of improved conditions. Later vagrancy laws became criminal aspects of the poor laws. The series of laws passed in England on the subject became increasingly severe. 4 [405 U.S. 156, 162] But "the theory of the Elizabethan poor laws no longer fits the facts," Edwards v. California, 314 U.S. 160, 174 . The conditions which spawned these laws may be gone, but the archaic classifications remain. 

"This ordinance is void for vagueness, both in the sense that it "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute," United States v. Harriss, 347 U.S. 612, 617 , and because it encourages arbitrary and erratic arrests and convictions. Thornhill v. Alabama, 310 U.S. 88 ; Herndon v. Lowry, 301 U.S. 242 ." 

In his decision, Douglas wrote extensively in defense of the idle. From his conclusion, for example: 

"Those generally implicated by the imprecise terms of the ordinance -- poor people, nonconformists, dissenters, idlers -- may be required to comport themselves according to the lifestyle deemed appropriate by the Jacksonville police and the courts. Where, as here, there are no standards governing the exercise of the discretion granted by the ordinance, the scheme permits and encourages an arbitrary and discriminatory enforcement of the law. It furnishes a convenient tool for "harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure." Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 97-98. It results in a regime in which the poor and the unpopular are permitted to "stand on a public sidewalk . . . only at the whim of any police officer." Shuttlesworth v. Birmingham, 382 U. S. 87, 382 U. S. 90. Under this ordinance, 

"'[I]f some carefree type of fellow is satisfied to work just so much, and no more, as will pay for one square meal, some wine, and a flophouse daily, but a court thinks this kind of living subhuman, the fellow can be forced to raise his sights or go to jail as a vagrant.' [Amsterdam, Federal Constitutional Restrictions on the Punishment of Crimes of Status, Crimes of General Obnoxiousness, Crimes of Displeasing Police Officers, and the Like, 3 Crim.L.Bull. 205, 226 (1967).] 

"A presumption that people who might walk or loaf or loiter or stroll or frequent houses where liquor is sold, or who are supported by their wives or who look suspicious to the police are to become future criminals is too precarious for a rule of law. 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 so-called 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. The rule of law, evenly applied to minorities as well as majorities, to the poor as well as the rich, is the great mucilage that holds society together. 

"The Jacksonville ordinance cannot be squared with our constitutional standards, and is plainly unconstitutional." 

The rise of hyper-specific vagrancy law 

It would be a mistake to think the 1972 decision in Papachristou v. City of Jacksonville ended the criminalization of the economically idle. 

Prior to the reversals of the '60s and '70s, vagrancy law served as a catch-all power to arrest and jail which local elites could use for whatever purpose suited them (from compelling labor, to suppressing political dissent, to enforcing segregation). 

Cases like Papachristou did not end the desire of local authorities to sweep "undesirables" off the street. Instead, local authorities were compelled to find new directions of attack. 

In the immediate aftermath of the decisions overturning "vague" vagrancy law, society took up with growing urgency the questions of who should count as vagrant and on what prosecutable basis. 

In 1972, the St. Petersburg Times pondered the question: "How do you tell who is a vagrant?": 

"'Go to Williams Park and clean out the vagrants and drunks," the St. Petersburg police radio dispatcher ordered a patrolman early Friday afternoon. Someone apparently had telephoned a complaint to the police. 

"The park was crowded. Most of the 200 persons seated on the rows of benches were waiting for the afternoon concert to begin. 

"Others seated body-to-body on the benches or lolling in the damp grass would listen to the concert, but they would have been in Williams Park anyway; they're among those who spend entire days sitting in Williams Park, reading or courting or feeding pigeons or just sitting. 

"ARE THOSE people vagrant? 

"The people whom the patrolman told to move on were what one might call obviously vagrant - two men who were sitting on the ground beneath a big tree near the southeast corner of the park, using their clothes bag as cushions between them and the trunk of the tree. 

"A third man was asleep nearby, his laundry bag-like sack and his shoes next to him. 

"A fourth man had moved from his nap-place in the grass to the end of a bench, where he sat and gazed sleepily at passers by, his suitcase next to him. This man had money with him, so technically he wasn't vagrant. 

"The patrolman found no drunks, although one elderly man tottered out of the park as the uniformed policemen walked in. 

"A few others in the crowd looked as though they might have sipped a little bit of spiked eggnog or other holiday cheer before beginning their daily walk or bus ride to the downtown park. 

"'WHO DO YOU call a vagrant?' the patrolman asked, looking at the crowd. Most of the people there are jobless, and probably only a few had any money with them." 

It is striking, in retrospect, how concisely that 1972 story anticipates the future of vagrancy law. 

The patrolman is caught between two great powers. On one side the high courts of taken away his authority to arrest arbitrarily under the powers of broad but vague vagrancy laws. On the other side, the local authorities are still driven to "clean up the district". Cleverly, he tries to resolve the contradiction by concentrating on very specific behaviors: sleeping in public; carrying a bag of clothing. 

That shift from the vague offense of idleness to a litany of hyper-specific offenses anticipated the course legislators would take. 

From around 1980 onward, economic statistics show a general trend: The number of people in the U.S. in poverty climbs. The utilization of shelters for the homeless, in major cities, climbs rapidly. Adjusted for headline inflation, wages flatten. By more realistic inflation measures wages fall over the course of decades. 

The Great Depression proved the arrival of a large, permanently superfluous workforce far larger could be employed. World War II, by slaughtering workers and razing factories, reversed the trend for about 20 years. By 1970, the crisis of a permanent job shortage was returning. 

There was a widespread impulse by local powers to attempt to segregate the workforce: to separate the idled from the employed; to keep those who were neither earning or spending much at bay. 

In 1985, the Evening Independent in St Petersburg ran a story under the headline: "Businessmen complain about transient problem". It invokes several themes that are still with us: 

"In the evening, they stroll through city streets, leisurely enjoying spruced-up courtyards and well-tended parks. Other times they relax on benches. 

"St. Petersburg's downtown seems especially attractive to homeless transients, if not to couples out for an evening of dining. 

"Downtown businessmen complained Thursday that vagrants are hurting their ability to attract customers into restaurants and shops, particularly in the evening. 'People are afraid to come into the downtown area because of vagrants,' said Al Gelford, owner of A.G. Mingles restaurant. `They see these people with their shirts off, with their - excuse me - their butts hanging out the back, walking around with a bottle in their hands. 

"'(Vagrants) are presenting an image that is hurting downtown business,' Gelford said." 

The logic by which businessmen came to blame the homeless for weak demand is flawed but that did not diminish their influence in cities throughout the country. The structure of the argument was roughly the same everywhere: 

a. The presence of the destitute is said to offend, shock, and frighten economic consumers. 

b. As an alleged result, the profits of local businesses fall. 

c. The behavior of the destitute must therefor be regulated with ever-greater specificity until the profit rate is restored. 

Thus, for example, in the 1990s Berkeley embarked on a program of regulating its commercial districts, specifying the number feet distant from a banking machine a beggar must be, limiting the number of dogs permissible in a 10 square foot area during certain hours, and prohibiting those who sit on the wide sidewalks (there being so little seating) from doing anything the police might deem to be reclining. 

An op-ed in the L.A. Times, on February 15, 2015, describes the situation: 

"But those rulings [Edwards and Papachristou] weren't the end of vagrancy laws. In their latest iteration, they target homeless people. After homelessness began skyrocketing in the 1980s, cities responded with laws that criminalize basic life activities conducted in public like standing, sitting, resting or sleeping, and even sharing food with homeless people. As the crisis worsened in California — 22% of America's homeless population now lives in the state — cities have piled on more and more vagrancy laws. 

"[...] Statewide arrest data show that these laws aren't just for show. Although arrests are only the tip of the enforcement iceberg, more than 7,000 Californians were picked up for vagrancy in 2013 according to police agency reports to the FBI. Vagrancy arrests increased 77% in California from 2000 to 2012, while arrests for "drunkenness" and "disorderly conduct" declined by 16% and 48% respectively. In other words, vagrancy laws increasingly are being used to punish people's status — being homeless — rather than their behavior. 

"[...] These research findings mirror reports from homeless people themselves. The Western Regional Advocacy Project conducts street outreach and has surveyed thousands of homeless people in California since 2010. The results are staggering: More than four of five of homeless people report having been harassed, cited or arrested for sleeping in public. Nearly that many have been punished for sitting or lying down. More often than not, homeless people are harassed by police or private security guards without reference to any law at all." 


Conclusion: May the idle and poor exist?

Over the course of six centuries, vagrancy laws shifted from a means to force people into work, to way to cast out those for whom no work could be provided. 


Starting with the great depression, the legal form of vagrancy law shifted from a vague, general criminalization of the idle, to a hyper-specific criminalization of the most destitute members of society. 

In its present form, vagrancy law is understood as a means to protect a desirable class of of people - consumers - from the shock, intimidation, or fear allegedly aroused by the presence of the destitute. The necessity of this legal protection for consumers is given as the weak profits of merchants. 

Over the past 40 years the size of the superfluous work-force has grown. Marx, Keynes, and even, increasingly, neo-classical economists all concur that as capitalism reaches the limits of global expansion, and becomes ever-more automated and efficient, a crisis must arise in the form of a growing mass of people who are excluded from work. 

In those 40 years, the U.S. has reacted to the crisis in a diversity of ways. The U.S. has vastly expanded the size of its prison population. It has developed a system of laws to chase and harass the destitute when they appear in urban commercial districts. The U.S. has "stimulated" the economy with cut-backs to entitlements and expansions of military spending and venturism. 

The economy has the permanent problem of, as Keynes put it, economizing on labor faster than it can find new uses for labor. We have a lasting crisis in which the society as a whole is materially wealthy, but increasingly more people in the society are poor and shut out of the economy. 

No amount of punishing the poor will change that economic crisis. The crisis is not caused by the choices of the poor. The crisis is caused by the advanced development of production, and the diminishing use for wage labor. 

It follows that penalizing the behaviors typical of the homeless, with the intent of boosting business in commercial districts, is a wrong strategy. 

The unsteady performance of downtown businesses isn't caused by the homeless, it is caused by a permanent, global surplus of workers. The problem will get worse in the future, not better, no matter how many stationary dogs are permitted in one 10 square foot area. 

Because the purpose of today's vagrancy laws can not be achieved by the action of those laws -- since today's hyper-specific prohibitions are based on a misunderstanding -- they can not be regarded anymore as legitimate. 

I do not mean to say that we should not take seriously the complaints of some consumers and some merchants. We should spend effort and if necessary treasure to pacify those decades old, constant, simmering conflicts. But we must ease those conflicts by some means other than the perpetuation of misguided vagrancy laws. 

We're all in this together.