Papachristou v. City of Jacksonville

United States Supreme Court

405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972)

 

This case involves eight defendants who were convicted of violating a Jacksonville, Florida vagrancy ordinance. The law defined as vagrants “[r]ogues and vagabonds, … 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, [and] persons able to work but habitually living upon the earnings of their wives or minor children…” The constitutional question before the Supreme Court is whether the ordinance is excessively vague and therefore violative of defendant’s due process rights.

 

Mr. Justice Douglas delivered the opinion of the Court.

 

…Jacksonville’s ordinance and Florida’s statute were “derived from early English law,” ... and employ “archaic language” in their definitions of vagrants.... The history is an oftentold tale. The breakup of feudal estates in England led to labor shortages which in turn resulted in the Statutes of Laborers, designed to stabilize the labor force by  prohibiting increases in wages and prohibiting the movement of workers from their home areas in search of improved conditions. Later vagrancy laws became criminal aspects of the poor laws. The series of laws passed in England on the subject became increasingly severe. But “the theory of the Elizabethan poor laws no longer fits the facts.” ... The conditions which spawned these laws may be gone, but the archaic classifications remain.

 

This ordinance is void for vagueness, both in the sense that it “fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,” ... and because it encourages arbitrary and erratic arrests and convictions....

 

Living under a rule of law entails various suppositions, one of which is that “[all persons] are entitled to be informed as to what the State commands or forbids.” ...

 

The poor among us, the minorities, the average householder are ... not alerted to the regulatory schemes of vagrancy laws; and we assume they would have no understanding of their meaning and impact if they read them. Nor are they protected from being caught in the vagrancy net by the necessity of having a specific intent to commit an unlawful act....

 

The Jacksonville ordinance makes criminal activities which by modern standards are normally innocent. “Nightwalking” is one. Florida construes the ordinance not to make criminal one night’s wandering, ... only the “habitual” wanderer or, as the ordinance describes it, “common night walkers.” We know, however, from experience that sleepless people often walk at night, perhaps hopeful that sleep-inducing relaxation will result.

 

Luis Munoz-Marin, former Governor of Puerto Rico, commented once that “loafing” was a national virtue in his Commonwealth and that it should be encouraged. It is, however, a crime in Jacksonville.

 

“[P]ersons able to work but habitually living upon the earnings of their wives or minor children”---like habitually living “without visible means of support”---might implicate unemployed pillars of the community who have married rich wives.

 

“[P]ersons able to work but habitually living upon the earnings of their wives or minor children” may also embrace unemployed people out of the labor market, by reason of a recession or disemployed by reason of technological or so-called structural displacements.

 

Persons “wandering or strolling” from place to place have been extolled by Walt Whitman and Vachel Lindsay. The qualification “without any lawful purpose or object” may be a trap for innocent acts. Persons “neglecting all lawful business and habitually spending their time by frequenting ... places where alcoholic beverages are sold or served” would literally embrace many members of golf clubs and city clubs.

 

Walkers and strollers and wanderers may be going to or coming from a burglary. Loafers or loiterers may be “casing” a place for a holdup. Letting one’s wife support him is an intra-family matter, and normally of no concern to the police. Yet it may, of course, be the setting for numerous crimes.

 

The difficulty is that these activities are historically part of the amenities of life as we have known them. They are not mentioned in the Constitution or in the Bill of Rights. These unwritten amenities have been in part responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity. These amenities have dignified the right of dissent and have honored the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits rather than hushed, suffocating silence....

 

This aspect of the vagrancy ordinance before us is suggested by what this Court said in 1876 about a broad criminal statute enacted by Congress: “It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.” ...

 

Another aspect of the ordinance’s vagueness appears when we focus, not on the lack of notice given a potential offender, but on the effect of the unfettered discretion it places in the hands of the Jacksonville police. Caleb Foote, an early student of this subject, has called the vagrancy-type law as offering “punishment by analogy.” ... Such crimes, though long common in Russia, are not compatible with our constitutional system. We allow our police to make arrests only on “probable cause,” a Fourth and Fourteenth Amendment standard applicable to the States as well as to the Federal Government. Arresting a person on suspicion, like arresting a person for investigation, is foreign to our system, even when the arrest is for past criminality. Future criminality, however, is the common justification for the presence of vagrancy statutes.... Florida has, indeed, construed her vagrancy statute “as necessary regulations,” inter alia, “to deter vagabondage and prevent crimes.”

 

A direction by a legislature to the police to arrest all “suspicious” persons would not pass constitutional muster. A vagrancy prosecution may be merely the cloak for a conviction which could not be obtained on the real but undisclosed grounds for the arrest....

 

Those generally implicated by the imprecise terms of the ordinance---poor people, nonconformists, dissenters, idlers---may be required to comport themselves according to the lifestyle deemed appropriate by the Jacksonville police and the courts. Where, as here, there are no standards governing the exercise of the discretion granted by the ordinance, the scheme permits and encourages an arbitrary and discriminatory enforcement of the law. It furnishes a convenient tool for “harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.” ...

 

A presumption that people who might walk or loaf or loiter or stroll or frequent houses where liquor is sold or who are supported by their wives or who look suspicious to the police are to become future criminals is too precarious for a rule of law. The implicit presumption in these generalized vagrancy standards---that crime is being nipped in the bud---is too extravagant to deserve extended treatment. Of course, vagrancy statutes are useful to the police. Of course, they are nets making easy the roundup of so called undesirables. But the rule of law implies equality and justice in its application. Vagrancy laws of the Jacksonville type teach that the scales of justice are so tipped even-handed administration of the law is not possible. The rule of law, evenly applied to minorities as well as majorities, to the poor as well as the rich, is the great mucilage that holds society together.

 

The Jacksonville ordinance cannot be squared with our constitutional standards and is plainly unconstitutional. …

 

 

Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case.