February 8, 2016

Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s

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.

Vagrant Nation shows how vagrancy arrests were often the go-to response against anyone who threatened, as many described it during vagrancy laws’ heyday, to move “out of place” socially, culturally, politically, racially, sexually, economically, or spatially. The millions of people arrested for vagrancy during the 20 years before the laws fell were white and black, male and female, straight and gay, urban and rural, southern, northern, western, and Midwestern. They had money or needed it, defied authority or tried to comply with it. They were arrested on public streets and in their own homes; as locals or strangers; for political protests or seeming like a murderer; for their race, their sexuality, their poverty, or their lifestyle.

Vagrant Nation not only reveals the existence of this largely hidden but powerful and ubiquitous legal regime, it also shows how the regime crumbled during, because of, and in tandem with “the 1960s.” How could one vindicate claims to racial equality, political voice, or sexual freedom if one could not even walk down the street without being arrested? The changes of the era made challenges to vagrancy laws not only necessary but also possible. They led many of those targeted by vagrancy laws to organize. They made lawyers more available to the poor and unpopular. And they generated new legal and constitutional arguments that were ultimately successful in invalidating the laws.

When the Supreme Court struck down vagrancy laws in 1972, it disrupted 400 years of criminalizing difference as dangerous. In doing so, the Court neither instantly nor completely transformed American law and society. As Vagrant Nation recounts, regular people, lawyers, scholars, legislators, government officials, and lower court judges had done much of the work of dismantling the vagrancy law regime before the Supreme Court acted. Nor did the Court effect a wholesale transformation of American law and society. Coercive laws remained, and abuses of police power continued.

But the downfall of vagrancy laws did do three important things. First, that vagrancy laws—long considered among the most trivial of violations—had constitutional dimensions suggested that nothing was now too small for constitutional consideration. Second, it put the Constitution squarely on the side of those who had previously been deemed out of place and therefore criminal. Finally, it forced law enforcement officials to find new, more transparent, targeted, and costly ways of regulating people who had been so easy to regulate under the vagrancy law regime.

It is this last point that makes people think that that regime and its demise lies at the heart of so many of today's social, political, and crime control controversies. They would be right.