by Risa L. Goluboff, John Allan Love Professor of Law and Professor of History, University of Virginia School of Law
Long before I finished writing Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s, my new book about the rapid downfall of age-old vagrancy laws in the 1960s, I began talking about it with colleagues, lawyers, and friends. Each time I did, they pointed out connections to the present.
The present each had in mind was very different, however. To poverty lawyers and scholars, my tale of the downfall of vagrancy laws—originally passed and long used to criminalize the status of being idle and poor—naturally led to questions about homeless policies today. To political activists who learned from my book that vagrancy laws had long been used against unpopular speakers—everyone from the Industrial Workers of the World to Communists to civil rights leaders and Vietnam War protestors—Occupy Wall Street seemed the natural endpoint. Scholars and activists focused on race and policing saw how stop-and-frisk in many respects had replaced the vagrancy arrests of those who seemed suspicious to the police. More generally, they reflected that the arbitrary and discriminatory policing I describe in the book is still (or once again) the subject of considerable controversy and social movement organizing today. Those interested in criminal law identified analogues to the vagrancy laws in the criminalization of certain people for their status—though now the most obvious examples are convicted sex offenders and undocumented immigrants rather than gay men, prostitutes, or poor people.
My colleagues were all right. Much of the social, criminal, and political regulation that exists today has roots, analogues, echoes, or precursors in the single category of criminal law that made vagrancy illegal in every state in the nation for hundreds of years. Vagrancy laws that outlawed not only being idle and poor but also being immoral or dissolute, or wandering about with no apparent purpose, were eminently flexible. They could do, and did do, just about anything law enforcement authorities—or the powerful people in their communities—wanted them to do.