Disorder and the court

Public Interest, Summer, 1994 by George L. Kelling, Catherine M. Coles

IN THE CURRENT debate over what to do about crime in America, national political leaders focus on the "grand" crime issues--capital punishment, gun control, the length of prison sentences, and the number of police on the streets. But on the local level, the terms of debate are much different. There, the issues may seem relatively trivial: panhandling, lying down in public spaces, public drinking and drug use, prostitution, unsolicited window washing, public urination and defecation, loitering, and graffiti. Yet the skirmishes being fought over these issues in areas such as Boston's Dorchester, San Francisco's Tenderloin area, Milwaukee's Near West Side, Seattle's Wallingford area, and New York City's Columbia Heights may well determine whether or not these areas continue to decay.

What is going on? Why do local debates appear to center on problems so different from those focused upon in current national crime legislation? Isn't "serious" crime the real problem? Is it true, as Helen Hershkoff of the American Civil Liberties Union (ACLU) argues, that: "In an effort to deal with the enormous increase in poverty and homelessness in cities across the country during the past decade, numerous municipalities are enforcing, with renewed vigor, long-dormant ordinances prohibiting the destitute from asking members of the public for money"? Are we resurrecting Victorian ideas of the "dangerous classes" and returning to the bad old days of arresting people for the "offenses" of poverty and homelessness?

No, we think not. The local issues are far more complex than such formulations would suggest. On the one hand, academics and civil libertarians properly worry about issues such as freedom of speech and due process. On the other, residents in many urban neighborhoods see controlling disorder as a last-ditch effort to restore safety and civility to streets, parks, and other public spaces. Crime statistics may rise or fall; citizens' daily "in your face" street experiences tell them that things are out of control and worsening.

The law

Things have not always been as they are now. For most of American history, in nearly every state and in many municipalities, there were laws against begging, indigence, and traveling about the country without visible means of support.

Following the Depression and World War II, criticism of vagrancy and loitering laws became increasingly common. In 1972, in Papachristou v. City of Jacksonville, the Supreme Court struck down an anti-vagrancy statute. Then, in 1983, in Kolender vs. Lawson, the Supreme Court struck down a California statute which required that loiterers produce identification and account for their presence on the request of a police officer.

Following the Supreme Court's decisions in Papachristou and Kolender, other courts overturned many vagrancy and loitering laws under the due process clause of the Fourteenth Amendment. States and municipalities got the message, and as a result police ceased to enforce, and district attorneys to prosecute under, those anti-begging and panhandling laws that remained on the books.

Other localities took a different path, and passed more specific, behavior-directed statutes and ordinances. Both a 1965 Supreme Court decision, Shuttlesworth v. City of Birmingham, and a series of New York cases beginning in the late 1960s set forth the rule that while legislation prohibiting loitering alone was unconstitutional, legislation prohibiting "loitering for the purpose of" committing some specific unlawful act, such as prostitution, was acceptable.

In recent challenges to loitering laws, however, the courts have been presented not only with Fourteenth Amendment due process and equal protection arguments, but with assertions that such laws infringe upon the First Amendment right to free speech. In some cases the courts have found First Amendment concerns sufficiently compelling to overturn even "loitering for the purpose of laws, signalling a further shift in legal thinking. Legislators have responded by developing laws against very specific behaviors--lying down, asking a person for money more than once, not allowing people to move freely on sidewalks, etc. But even this strategy may not succeed if the courts continue to hold that the First Amendment rights of street people outweigh the countervailing interests of a community. It is this most recent judicial shift that is the concern of this article.

In a word, we believe that many of these decisions have gone too far, interfering with a community's ability to maintain order on its streets, in its parks, and in other public places. Furthermore, we believe that the resulting disorder has had serious social consequences--increasing fear and crime, and driving out law-abiding citizens.

But we believe that the root problem here is a social, and not just a legal, one. That is, in reaching their decisions, the courts have relied on current, popular assumptions about disorderly behavior--the assumptions accepted and promoted by the media, policy makers, and advocates. But, as a growing body of evidence indicates, the assumptions are incorrect. Refuting them must be the first step if we are to change the direction of recent court decisions.