The concept of vagrancy laws is in flux in the state of California at this juncture in time. Vagrancy laws has become something of a broader umbrella term for certain types of laws as opposed to referencing specific statutes or ordinances.
Specific Types of Conduct Prohibited by So-Called Vagrancy Laws
In California, laws that fall into the broader categorization of vagrancy laws tend to be designed to prohibit certain types of conduct. These laws usually come in the form of municipal ordinances. The types of conduct oftentimes prohibited by vagrancy laws include:
- Sleeping outside
- Fortune telling
Vagrancy Laws and the Criminalization of Certain Statuses
Enacting statutes and ordinances that criminalize conduct like sleeping outside or gambling and typically pass constitutional muster. Vagrancy laws run afoul of the courts when they essentially make certain statuses illegal. As will be discussed more fully in a moment, vagrancy laws have made these types of statuses illegal in certain jurisdictions from time to time:
- drug addict
In this day and age, ordinances that blatantly criminalize these types of statuses are not usually enacted. Rather, according to advocates for the homeless, vagrancy laws still criminalize the status of being homeless, but do so in more opaque and diffuse ways.
History of California Vagrancy Laws
In order to understand the inherent controversy surrounding so-called vagrancy laws, understanding the history of these statutes and ordinances is important. Vagrancy laws stem from a historical period in which communities elected to selectively persecute or punish specific groups of individuals based on their statuses or attributed.
This included laws that targeted people because of their race. In California, it also encompassed so-called Anti-Okie laws that targeted people who migrated to California to escape the Dust Bowel. The California Anti-Okie law made it a crime to bring anyone who was indigent into the state. By definition, those escaping the Dust Bowel at the height of the Great Depression were indigent. Ultimately, the U.S. Supreme Court declared this California law unconstitutional.
Reasons Vagrancy Laws are Deemed Unconstitutional
The U.S. Supreme Court has relied on one of two legal principles in striking down vagrancy laws. These are the:
- Vagueness doctrine
- Prohibition against cruel and usual punishment
According to the vagueness doctrine, in order to a law to meet constitutional muster is must be written in a manner that an ordinary person of reasonable intelligence knows exactly what acts are prohibited. The law must delineate with reasonable specificity what a person must do, or not do, in order to avoid criminal prosecution. In other words, a law isn’t constitutional if it is vague.
Without a clear delineation of what is prohibited, it become impossible to ascertain what constitutes a criminal act. The Supreme Court has determined that vagueness violates a person’s right to due process, sometimes referenced as a right to fairness.
Cruel and Unusual Punishment
Another reason why some vagrancy laws have been struck down by the U.S. Supreme Court stems from a determination that these statutes or ordinances violate the constitutional prohibition against cruel and unusual punishment. Specifically, vagrancy laws that rely upon the status of a person (rather than a specific act by that individual) are deemed violative of the prohibition against cruel and unusual punishment. This determination is made because a person is penalized or punished for his or her status. This includes the unfortunate status of being homeless. “Few people desire to be homeless and unemployed and it violates the tenets of fairness to jail someone based on financial catastrophes, medical problems, mental illness, or addiction,” according to the Supreme Court case of Robinson v. California.
The Latest Incarnation of Vagrancy Laws
Beginning in the 1980s, in California and elsewhere in the United States, vagrancy laws saw what many have called something of a rebirth. When the homelessness problem started to spike upward, beginning in the 1980s and continuing through today, municipalities across California passed laws purportedly designed to criminalize certain activities. A good many of these laws have been struck down as unconstitutional because they actually attempted to criminalize a status (homelessness) under the guise of an act the law allegedly tried to criminalize.
The “activities” these so-called vagrancy laws attempted to criminalize included:
- Sharing food
Disputes over these laws have resulted in a number of lawsuits filed by advocates for homeless people, like the American Civil Liberties Union or ACLA. In many cases, a settlement was reached that effectively suspended the operation of these laws for a set period of time.