Loitering

In general, loitering refers to the act of loafing about a specific location. States and localities in the United States have a long history of enforcing laws against loitering in public areas. Early U.S. antiloitering laws were identical to English laws regarding vagrancy. However, over time, these laws were forced to evolve in order to pass constitutional muster. Recently, localities throughout the United States have attempted to use antiloitering laws to thwart gang activities, drug dealing, prostitution, the soliciting of alms, street gambling, and other behaviors that have the potential to affect citizens’ quality of life. Although antiloitering ordinances usually apply to people of all ages, they are often used, either in conjunction with or in lieu of youth curfews, to keep youths from congregating in public areas during evening hours—a condition that often elicits fear among community members. Violators of antiloitering laws may be told to “move along,” fined, required to appear in court, sentenced to short jail terms, or subjected to a combination of these consequences. Even when localities have antiloitering laws on the books, individual police officers use discretion in deciding whether to enforce the laws or to what extent to enforce the laws (i.e., deciding whether to arrest violators or simply warn them and ask them to move along). U.S. laws against loitering are rooted in the English common law regarding vagrancy. The English laws, which outlawed begging and refusal to work, were initiated as an effort to save feudalism from the increase in wages caused by the decimation of England's labor force by the Black Death. Instead of being repealed or made dormant, vagrancy laws experienced a shift in focus after the 1575 manumission of English serfs. Beginning in the 16th century, English law regarding vagrancy was no longer concerned with controlling the movement of the labor force; rather, it aimed to regulate would-be felons in a newly commercialized and industrialized society so that safe passage could be guaranteed merchants transporting goods. By 1577, first-time offending “loiterers,” “ruffians,” “vagabonds,” “procurators,” “jugglers,” “pedlars,” and “rogues” could be branded on their chests with the letter “V” and enslaved for 2 years. Repeat offenders could be branded on the forehead with the letter “S” and enslaved for life.

In the tradition of the English common law, nearly all U.S. states prohibited vagrancy, begging, and migration of the poor from other states. Although the Privileges and Immunities Clause of the Articles of Confederation denied beggars and vagrants all rights, the Constitution of 1787 left it up to the states to determine vagrancy laws for themselves. By the 1791 ratification of the Bill of Rights, 8 out of 14 states statutorily prohibited begging, and by 1812, four more states and the District of Columbia had implemented statutes that adhered to the English tradition of controlling the so-called dangerous class. By 1956, every state in the nation had statutes prohibiting vagrancy, with the exception of West Virginia, where it was a common-law crime, and the laws were being arbitrarily imposed upon people considered a nuisance. In many cases, state laws were augmented by municipal regulations. In all instances, vagrancy statutes punished individuals for their status (i.e., being poor, idle, or unemployed) rather than for having committed a specific illegal act. U.S. legislation regarding the control of behaviors considered vagrancy under the English common law has passed through several phases toward a rejection of status-based regulations and a requirement that criminal offenses consist of specific behaviors. Around the time of World War II, legal scholars and social welfare advocates spoke out against catch-all vagrancy laws, arguing that these laws had the effect of criminalizing the status of being economically unfortunate and particularly the status of being homeless. The first successful challenge to vagrancy laws was directed at states’ [Page 277]attempts to disallow the migration of poor people across their borders. In Edwards v. California (1941), the U.S. Supreme Court struck down a California statute that prohibited poor people from entering the state. In Edwards, the Court held the statute in violation of the Commerce Clause of the Constitution; however, concurring opinions by two justices, which relied on the Privileges and Immunities Clause of the Fourteenth Amendment, attacked the state's efforts to limit the rights of citizens based on property status and foretold of several Supreme Court decisions of the 1960s that would further undermine status-based vagrancy laws.

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