VAGRANT NATION: POLICE POWER, CONSTITUTIONAL CHANGE, AND THE MAKING OF THE 1960S

Vol. 26 No. 6 (October 2016) pp. 108-113

VAGRANT NATION: POLICE POWER, CONSTITUTIONAL CHANGE, AND THE MAKING OF THE 1960S, by Risa Goluboff. 480pp. New York: Oxford University Press, 2016. Cloth $34.95. ISBN 9780199768448.

Reviewed by Paul E. Parker, Department of Political Science, Truman State University. Email: parker@truman.edu

Legal historian Risa Goluboff has written an engaging and important story of social and legal change. In a decentralized nation, state police powers, to regulate for the welfare and morals of the community, provided local authorities with far reaching power, and discretion regarding how to use it. Statutes criminalizing vagrancy and loitering were used as a form of social control against political outsiders – radicals, blacks, prostitutes, gays, hippies, protestors, and transgressive women. Beginning in the 1930s, lawyers strategized how to limit this discretionary power, and by the early 1970s the hydraulic pressure of social and legal change was so great that vagrancy statutes were struck by the U.S. Supreme Court.

PAPACHRISTOU V. JACKSONVILLE (1973) was the culmination of legal scheming and litigation that created a body of precedent too large for the Burger Court to ignore. The heroes of Goluboff’s story are attorneys and law professors who created the legal theory and strategies to challenge the statutes and police practices. They competed and collaborated in trying different tactics, and extended a success from one type of person or behavior to another. The litigants are often vehicles for the aspirations of the attorneys – none more so than Lorraine Papachristou, whose attorney did not recognize her when she waited his table, and whose main concern was whether she was going to have to serve her 10 days in jail if the Supreme Court ruled adversely (pp. 331-32).

Across nine chapters, Goluboff weaves in other doctrinal developments in U.S. law, and indeed, this is part of her thesis: where we often see disparate lines of legal development, we should see relation and convergence. Vagrancy charges were useful in policing public space to discourage or remove unwanted individuals, whether poor, black, gay, or countercultural, and also useful in undercutting social change movements of workers, civil rights activists, and anti-war protestors. The very flexibility of the statutes authorized unchecked police authority, and frustrated civil libertarians. Meanwhile, the erosion of vagrancy law was connected to legal developments in free speech, equal protection, and the revolution in due process. Former outsiders became citizens.

The legal history is told largely chronologically, with chapters featuring a vagrant (or class of vagrants), enterprising attorneys working to create or adapt legal precedent, and a court (or courts). Within chapters, Goluboff contextualizes legal development in the broader social and cultural streams, such as the Cold War and chilled free speech, the Civil Rights Movement, and the Sexual Revolution, which blurred the lines between “good” and “bad” women, thereby reducing the legitimacy of policing women’s behavior (p. 164). With each chapter’s focus on different “outgroups”, there is necessarily some recursiveness; as Goluboff, and courts, work to integrate legal developments. She repeatedly reminds readers that history is neither unidirectional nor determined: legal actors faced choices about how to frame their arguments, including those defending the vagrancy statutes and the preservation of police discretion as necessary to upholding the social order.

Vagrancy laws trace to Elizabethan England regulations of labor, circa 1600. The colonies and states continued the tradition: in the middle of the 20th century, not being able to demonstrate employment could subject one to being a vagrant in many jurisdictions. But vagrancy transcended labor, because governments found the laws useful for policing the social order. [*109] Alabama law classified 13 ways to be a vagrant, the District of Columbia had 14, and Florida approximately 20. Many local governments had their own statutes, and numerous arrests were under a classification that did not exist in statute. The stories in the book are those of people “with the shared Constitutional problem of being out of place.” (p. 336)

In Chapter 1, Isidore Edelman’s political speeches in a Los Angeles park led to 63 arrests “in quick succession” (p. 13). As in other jurisdictions and chapters, the very fact one has a history of being arrested subjected one to arrest as a vagrant (for being a lawless, “dissolute person” in Edelman’s case). In a thread carried throughout the two decades of litigation, the justices in Edelman’s 1953 Supreme Court case were faced with several issues. Were vagrancy laws “status crimes,” problematic because they require no demonstration of offending behavior? How to draw the line between the social order and individual freedom? And, what is the proper role of courts, especially federal courts, in overseeing local affairs? This latter issue is highlighted by Goluboff, as courts move into the due process revolution of “the long 1960’s.” The Court dodged most of these questions for 15 years, dismissing Edelman’s case as improvidently granted, and DIGging three more along the route to PAPACHRISTOU. Justice William O. Douglas dissented from the DIG, and his celebration of the hobo as the free wanderer, rather than the outsider in need of disciplining, recurs prominently in his opinions and law journal contributions to move the law in favor of the underdog.

The outsiders in Chapter 2 include the Beats and gays and blacks in 1950s San Francisco Bay area, and the hero of the chapter is Attorney Ernest Besig. Goluboff uses his extensive records, now with the California Historical Society, to tell how Besig had considered vagrancy law as a problem since he worked in California Civil Liberties Unions since the 1930s, and how his efforts contributed to the law’s repeal. Reflecting its evolution from labor law, part of the California statute criminalized “lacking a visible means of support,” and failing to “seek employment.” Another portion addressed loitering, and a third criminalized ‘the lewd and dissolute” (p. 45). “The ‘catchall’ of vagrancy masked the laws many guises, obviated law enforcement’s need to clarify the nature of the crime, and left Besig unclear about how to articulate a challenge to the law itself” (p. 46). Should he challenge the very breadth and ambiguity of the laws? Challenge the untethered police discretion in enforcement? In California, Besig tried to change police practice through correspondence, through litigation, and, most effectively, though political action: In 1962, the California vagrancy law was replaced by a Disorderly Conduct statute. The latter both ensured that police had a mechanism for preserving social order, and required them to identify specific conduct to justify an arrest.

Vagrancy law’s traditional role in policing of “the visibly poor” is the subject of Chapter 3. Goluboff discusses the policing of skid rows in order to keep the social order. Goluboff states, “The officers asked themselves not whether any particular person should be arrested for a particular violation but what violation should be used to address the problems caused by the particular person” (p. 85). The arbitrariness of police behavior was a problem for those on the receiving end, like Sam Thompson, whom Louisville police had arrested over 50 times. A subsequent arrest was known to Thompson’s part-time employer (relevant to his means of support) who was connected to the Kentucky Civil Liberties Union, and Thompson ultimately ended up with Louis Lusky for an attorney. To have an attorney in 1959 police court was unusual in itself, and Lusky was no ordinary lawyer: While clerking for Chief Justice Harlan Stone, Lusky had authored the famous CAROLENE PRODUCTS footnote. Like his contemporary Besig, Lusky faced the decision of how to proceed. Rather than challenge the law directly, Lusky argued the case on the evidence. Besig’s victory at the U.S. Supreme Court had the potential to curb the unfounded arrests, but only when authorities were interested in prosecutions. The presence of vagrancy statutes meant that many would still be subject to harassment of arrest, short of charging.

[*110] The use of vagrancy arrests to harass and intimidate played a central role in trying to curb the Civil Rights Movement, discussed in Chapter 4. Goluboff notes “Toppling Jim Crow required challenging not only segregation and inequality, but also the laws that police used to defend and maintain the system” (p. 114). Writing for a unanimous court in SHUTTLESWORTH V. BIRMINGHAM, Justice Potter Stewart held that the Alabama ordinance under which Shuttlesworth was convicted for obstructing a sidewalk “void as applied.” While the goal of striking the ordinances themselves was not achieved, the use of vagrancy against civil rights workers produced three consequences for the movement to end vagrancy laws. First, the expansion of civil rights activism meant that a new group of lawyers joined the fight against vagrancy laws (pp. 127-128). While this made some difference in the Justice of the Peace Courts that routinely convicted on vagrancy charges, such courts still routinely convicted. Lawyers then began efforts to widen the scope of conflict, using a Reconstruction era law to remove vagrancy cases from state to federal courts. Third, the use of vagrancy charges against the civil rights activists allowed the framing of the anti-vagrancy battle to be about civil rights, and how Americans should be treated.

The law of vagrancy, and its application, created and reflected ideas of who was a worthy member of society, and what behaviors were normal. The attempt to end vagrancy laws, and the “otherness” it reinforced, pressed numerous theories. Goluboff identifies Anthony Amsterdam as a “key link” in this movement. First in his class at University of Pennsylvania Law School, Amsterdam went on to clerk for Felix Frankfurter. As a student, Amsterdam had written an important law review note that discussed vagrancy laws as one area raising void-for-vagueness issues. The note led to his affiliation with the NAACP Legal Defense Fund, where he was “a frequent participant and key link in the vagrancy law challenge” (p. 134). He wrote an amicus brief in SHUTTLESWORTH, and in 1967, published a seminal law review article that essentially served as a manual of arguments for challenging vagrancy arrests and convictions. The title, “Federal Constitutional Restrictions on the Punishment of Crimes of Status, Crimes of General Obnoxiousness, Crimes of Displeasing Police Officers, and the Like,” captures the general frustration with arbitrary enforcement of laws.

This concern with how people should be treated is further discussed in Chapter 5, “Morals are Flexible.” The moral disciplining of women, “sexual deviants,” and the idle poor are all discussed. We see how the vagrancy was a useful charge for vice police, who could avoid having evidence of solicitation: being a prostitute was a “status crime”. The chosen legal strategy was to show the problems with the category of “vagrant,” and the lawyer sought “a middle class defendant to illustrate the indiscriminate nature of the sweeps” police conducted under the law (p. 153). In 1967, the District Court for the District of Columbia struck a D.C. statute as void for vagueness. Again, the Supreme Court granted review and DIGged the case. The chapter also discusses “The Criminalization of Idle Poverty” – idle poverty being a moral failing vagrancy laws historically attempted to correct – with historical discussion of skid row and the now-changing social, professional and legal approaches to poverty. The poor, women, and sexual ‘deviants’ were being “transformed from “‘apparent ne’er-do-wells’ into rights bearing contenders.” (p. 177)

By the late 1960s, the due process revolution was being contested. Civil libertarians were pushing for more oversight of police, and police and their allies were pushing back: In both 1964 and 1968, Republican presidential nominees campaigned on law and order. The power of police was at issue in two cases in the 1967 term. WAINWRIGHT V. CITY OF NEW ORLEANS, which involved a common practice of using vagrancy arrests as an investigatory tool when lacking probable cause on another matter, received some press attention as a case to watch, given the Court’s due process cases, and their earlier avoidance or narrow treatment of vagrancy cases. Also docketed was TERRY V. OHIO, a pairing that presented the issues of police authority in the service of public order, [*111] and individual freedom from intrusive and arbitrary authority. Law and order won that term, as TERRY stops lowered the Fourth Amendment’s probable cause standard to one of reasonable suspicion for brief police encounters on the street, and WAINWRIGHT was DIGged. Goluboff portrays a Court trying to find a way to address vagrancy laws, but unable to agree on how to balance issues of racial equality and individual liberty on the one hand, and police need for order on the other.

Meanwhile, attorneys continued to look for cases that would go beyond the retail value of Thompson’s “evidence” holding and beyond the “as applied” holding of SHUTTLESWORTH, to have vagrancy laws struck as unconstitutionally vague. One approach was to continue showing the indiscriminate nature of these cases. Chapters 7 and 8 feature cases of “privileged white kids” facing vagrancy charges: a law student, hippies, and anti-war protestors. In addition to having clients that might be perceived as more sympathetic, lawyers had more precedent and more legal authority, such as Amsterdam’s 1967 law review article (p. 253). Goluboff suggests, “Police officers were using well-established laws… but the world had changed around them.” Consequently, she notes, in the late 1960s, “In every published federal civil rights vagrancy case, the hippies and their lawyers won” (p. 253).

By Chapter 8, “The Beginning of the End,” we are to the Burger Court. The justices’ legal world pointed toward greater freedom from discretionary policing, while their social world was one that seemed to need greater policing. In PALMER V. THE CITY OF EUCLID, (1971) the Justices unanimously struck Palmer’s conviction and 30-day sentence for being ‘a suspicious person.’ This was after nine state and federal courts had struck such laws in the previous five years, and after four cases with similar issues had been DIGged by the justices. The same day PALMER was argued, the Court heard a second Ohio case, COATES V. CINCINATTI. Making use of the Blackmun papers, Goluboff relates how a dissent penned by Justice Potter Stewart became a 5-4 majority opinion, striking the ordinance that banned “annoying behavior” as void for vagueness and overbroad (p. 292). Stewart ‒ a Cincinnati native who had written the opinion striking the Shuttlesworth conviction – linked the use of broad ordinances against the anti-war protestors and racial minorities. Goluboff argues that the justices were undoubtedly influenced by the ongoing protests in Washington D.C. – including 16 days in April 1971 alone (p. 288), with some of the protests at the Supreme Court (as captured by the book’s cover art). The two cases were wins for anti-vagrancy forces; Goluboff speculates that the Court was very uncomfortable with statutes criminalizing status (9-0) but divided regarding conduct (5-4).

With vagrancy laws on their last legs, Chapter 9 tells the story of “The Race to the Court” where lawyers searched for a case with the right set of facts. Florida’s statute, written in 1832 and amended in 1907, contained some 20 categories of “vagrant,” providing fertile hunting ground. One attorney who had won on the “no evidence” precedent of THOMPSON gathered a broad range of clients, presented weak briefs in lower courts (so as not to win, and thus to preserve the ability to appeal) and skipped the Florida Supreme Court in order to get a convicted client to the Supreme Court (p. 305). Goluboff contextualizes the convictions for vagrancy of two black men and two black women, traveling together in a car as part of a long history of states trying to regulate both women’s mores and race relations, and links PAPACHRISTOU to the dismantling by the Court of the criminal law for the purposes of social control (p. 329). For 15 years the justices had avoided striking vagrancy statues as “void for vagueness,” likely to avoid the charges of substantive due process. Goluboff uses the Blackmun papers to tell of the justices’ consideration and negotiations over grounding the decision in fundamental rights. Ultimately, Justice Douglas wrote an opinion for the 7-0 PAPACHRISTOU majority that did not engage in careful legal analysis, but instead ‘valorized the hobo’, and spoke of a rule of law and the need to treat people equally.

It must be hard to write a conclusion to a story that is victorious on its own terms – the end of vagrancy laws – at a time when it looks like [*112] police have any number of discretionary tools at their disposal for the purposes of social control. If vagrancy law was about social control, we should expect authorities to find other means when denied this one. Goluboff notes that in addition to the disorderly conduct laws adopted in many jurisdictions, “Traffic stops, drug possession laws, immigration status checks, [and] public housing violations” have all been adopted to fill some of the void left by the loss of vagrancy statutes (p. 343). Civil libertarians and civil rights advocates lament the wide scale use of discretionary TERRY stops. Over the course of judicially mandated reporting of statistics regarding its Stop and Frisk program, 2002-2014, New York police made over 5 million stops; the TERRY requirement of “reasonable suspicion” seems poorly applied, as “Nearly nine out of 10 stopped-and-frisked New Yorkers have been completely innocent” (See: http://www.nyclu.org/content/stop-and-frisk-data). This past term’s decision in UTAH V. STREIFF further legitimated otherwise illegitimate stops and searches, holding that if a stop lacking reasonable suspicion produces an outstanding warrant, seized evidence need not be suppressed under the exclusionary rule, prompting Justice Sonia Sotomayor’s dissenting lament that the ruling created the incentive for police to “fish” for warrants.

A legal history of social control practices would be na├»ve to suggest that a successful litigation campaign to end vagrancy law would not produce other practices serving similar functions. However, Goluboff argues that it is easy to lose sight of how far reaching the vagrancy statutes were, allowing the arrest and detention of persons based largely on status. While not an apologist for stop and frisk, she argues that it (and other adapted practices) is of a different form of encounter than the vagrancy arrests. She characterizes, as optimistic, her views that today it is harder to regulate people indiscriminately (whether day laborers or youth with sagging pants); and laws that have replaced vagrancy are subject to greater transparency (p. 343). Her final optimistic conclusion is that the very scramble by governments to replace vagrancy statutes stands as a sign how significant those laws were to their social control efforts: “The monumental efforts that have gone into replacing a regime that for hundreds of years had enabled – and minimized the cost of – widespread surveillance and control represent massive outlays of governmental, intellectual, political, and policing capital” (p. 344). Perhaps I misunderstand that point; perhaps she is intimating that the high costs are standing in the way of such surveillance and social control? The cost is one society has seemingly been willing to bear. Between routine invocation of the need for secrecy in a post 9/11 world, and collaboration with private companies and their proprietary products like STINGRAY, it is not clear that the transparency she mentions is achieved.

VAGRANT NATION is well researched and documented (with about 100 pages of notes, documenting engagement with legal actors like Amsterdam, significant collections of papers, seminal literature, and enlightening literature); as is common in historiography, endnotes are generally to paragraphs, which means a reader may need to figure out which of the several citations included in the note is the relevant one for the point being pursued. A second disciplinary practice that caught my attention was the routine manner in which Goluboff speculated as to the motives of judges and attorneys, in the absence of a record. Generally when this is done she considers alternative explanations for behavior, with the explanations drawing together the main threads she has been weaving. For example, in considering different outcomes of companion cases PALMER and COATES, the word “perhaps” is used five times in six sentences across nine lines of text (p. 295). The next paragraph begins, “The remaining paper trail suggests that at least in part the difference stemmed from the presence and absence of facts” (p. 296). I encountered this as undermining the authority of the argument, although I suppose some readers may find this speculation a useful invitation to think about the complexity of the issues.

Goluboff has done a fine job weaving together the various vagrancy cases to demonstrate that such laws were an all-too-flexible tool that authorities used to control disfavored political speech and organizing, racial activity perceived [*113] as politically or sexually threatening, and, more generally, outsiders and the politically weak. The story is a part of the due process revolution that is not well known, and it is a story worth telling and reading. The book should be of interest to a wide variety of law and courts students, given its discussion of legal strategy and the development of legal doctrine, the role authority and discretion in enacting a social order, and the discussion of judges and justices facing competing paradigms and imperatives. And contemporary students of policing and the social order stand to learn a lot about historical practices and their relation to the present.

REFERENCES

Amsterdam, Anthony. 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 (No. 4): 205-42.

CASE REFERENCES:

COATES V. CITY OF CINCINNATI 402 U.S. 611 (1971).

PALMER V. CITY OF EUCLID 402 US 544 (1971).

PAPCHRISTOU V. CITY OF JACKSONVILLE 405 U.S. 156 (1972).

SHUTTLESWORTH V. CITY OF BIRMINGHAM 382 U.S. 82 (1965).

TERRY V. OHIO 392 U.S. 1 (1968).

THOMPSON V. LOUISVILLE 362 U.S. 199 (1960).

UNITED STATES V. CAROLENE PRODUCTS 304 U.S. 144 (1938).

UTAH V. STREIFF 579 U.S. ___ (2016).

WAINWRIGHT V. CITY OF NEW ORLEANS 392 U.S. 598 (1968).

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© Copyright 2016 by author, Paul E. Parker.