By Andrew Chen, Homeless Prevention
Staff Attorney CCWRO
As the Supreme Court deliberates over the disposition of Johnson v. Grants Pass, I’ve seen many people online and in my own life wondering why, exactly, this case is so important to unhoused folks and those who advocate on their behalf. This post is a concise explainer for those unfamiliar with the history and policy consequences of criminalizing homelessness.
As my former dean at UVA Law puts it, “Originating in 16th-century England, vagrancy laws came to the New World with the colonists and soon proliferated throughout the British colonies and, later, the United States. Vagrancy laws took myriad forms, generally making it a crime to be poor, idle, dissolute, immoral, drunk, lewd, or suspicious.”1 It was a form of social control and resource control – purging the undesirables from the common square and limiting the number of mouths one’s village needed to accommodate in times of want. Offenders could be arrested on sight and jailed for months, or, in some jurisdictions, put to work in forced labor camps, a staple of the “Black Codes” passed by the American South after the Civil War. According to survey data from 19th-century Philadelphia, over half of all convicted vagrants were Black, including many children.2
These type of laws, when applying civil penalties, have been held unconstitutional under two different legal theories.
First, in 1962, the Supreme Court held in Robinson v. California that a California law criminalizing drug addiction was a violation of the 8th Amendment’s prohibition against cruel and unusual punishment. The Court’s rationale was that merely suffering from addiction did not predicate a guilty act, or actus reus, from which a criminal law could stem. Making someone’s status or condition illegal was in and of itself cruel and unusual. We can call this the specific theory of unconstitutionality for social cleansing laws.
A decade later, in Papachristou v. City of Jacksonville, the Court struck down a Florida vagrancy statute, which read as follows:
Rogues and vagabonds, or dissolute persons who go about begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children shall be deemed vagrants and, upon conviction in the Municipal Court shall be punished as provided for Class D offenses.3
In this case, the Court held that such a statute was unconstitutionally vague, giving power to the police to arrest almost anyone arbitrarily, and giving the public insufficient notice about what behavior, exactly, was illegal. Rather than defining a specific offense, the ordinance sought to purge a particular type of person (or perceived type of person) from society. We can call this is the generalized theory of unconstitutionality as it applies to social cleansing laws.
In the wake of these decisions, municipalities and states that wanted to continue using criminal law as a means of social cleansing faced a challenge – how could they modify their laws to be constitutionally specific, satisfying Papachristou, while at the same time not making them so specific that they would trigger the precedent set by Robinson? That question has gone largely unresolved, and Johnson v. Grants Pass is one of the first attempts for our legal system to determine, where, if anywhere, the line exists.
After Papachristou, many municipalities attempted to pass what one might call “vagrancy+” laws, incorporating the prior, unconstitutional language with extra requirements or steps, such as disobeying orders from law enforcement. In modern times, statutes like the Los Angeles Municipal Code outlaw specific behaviors that may not, inherently, only apply to homeless people, but in practice and usage are understood to apply to them, such as laws against “blocking a sidewalk” or “sleeping in public”. Many of these laws have gone unchallenged. Low- and fixed-income people, because of their limited financial situation, do not have the time or means to commit to the extended litigation schedule that appealing such a case would take. Plaintiffs must rely on an exceptionally resourced, committed public defense team, legal aid, or (most often), private pro bono counsel, each of which come with their own limitations and prejudices.
Notably, the structure of case law itself, relying on legal cases and controversies, and prioritizing individual remedies over systemic changes, often results in cases where judicial conclusions are set aside in favor of financial or other forms of settlement. For example, again in Los Angeles, homeless advocates successfully petitioned the 9th Circuit in Jones v. Los Angeles to apply the ruling it would adopt later in Martin v. Boise. However, the Martin decision was never published due to a deal between the parties to not enforce the offending statute, the notorious LAMC 41.18, until sufficient housing had been constructed.
As such, despite the Scylla and Charybdis that Papachristou and Robinson represent threatening these social cleansing laws, few legal ships have been commissioned to sail between their territories. When is a vagrancy law unacceptably vague (such that it might entangle “law abiding citizens” instead of “criminals”), and when is it overly specific (such that it is clearly state violence enforcing class hierarchy)? Johnson v. Grants Pass will give us useful information to see where exactly the Court decides to draw the line, and decide how best homeless advocacy in the appellate courts should be tailored in the future.
- Risa Goluboff & Adam Sorenson, United States Vagrancy Laws, in The Oxford Encyclopedia of American Urban History, Oxford University Press, 1350–1365 (2019). ↩︎
- Vagrants and Vagabonds: Poverty and Mobility in the Early American Republic (NYU Press, 2019) ↩︎
- Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) ↩︎