Historically, vagrancy laws made it a crime for a person to wander from place to place without visible means of support. Basically, these laws criminalized being homeless and jobless. States used vagrancy laws to arrest, prosecute, and harass homeless people and poor people who were suspected of criminal activity or who were considered undesirable.
Most criminal statutes prohibit certain acts, such as taking something that does not belong to you or having sex for money; or failures to act, such as failing to provide a safe home for your children. While vagrancy laws sometimes prohibited specific acts, such as loitering (although this term can be problematic, as explained below), sleeping outside, panhandling, fortune telling, gambling, or prostitution, they also prohibited being a certain type of person (without regard to what that person might be doing or not doing). Vagrancy laws criminalized being:
Under vagrancy laws, it was a crime to be any of these things, even if the person was not otherwise doing anything illegal. Laws that prohibit being something, rather than doing something, are called status crimes. As explained below, many courts have decided that status crimes, including some vagrancy laws, are problematic and hence unenforceable.
All laws must be constitutional. This simply means that no law can violate any of the provisions in the United States Constitution. Many vagrancy laws have been struck down because they violated the constitution’s prohibition against cruel and unusual punishment or were vague.
Laws cannot impose punishment that is cruel and unusual. Many courts have decided that status crimes violate the prohibition against cruel and unusual punishment because the defendant is punished for unfortunate circumstances beyond his or her control. (Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962).) 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.
For more on the concept of cruel and unusual punishment, see The Meaning of "Cruel and Unusual Punishment".
A law must also be written so than an ordinary person can determine exactly what acts are prohibited and what people must do (or refrain from doing) in order to avoid criminal prosecution. Without clear guidelines for conduct, ordinary folk, police officers, and judges have no way of knowing what constitutes a crime. This uncertainty violates a person’s right to due process (fairness). Vagrancy laws, particularly laws prohibiting loitering, have been challenged successfully in court on the basis that they are too vague. (Chicago v. Morales, 527 U.S. 41, 119 S. Ct. 1849, 144 L. Ed. 2d 67(1999).)
Beginning in the 1960s, in response to constitutional challenges, many states repealed their vagrancy statutes and replaced them with laws prohibiting disorderly conduct, public intoxication, sleeping outside, and begging. Critics charge that these newer laws replicate the problems of vagrancy laws and that states use them to unfairly jail and harass poor people.
Historically, vagrancy laws were misdemeanors. Today, disorderly conduct and public intoxication are misdemeanors. Misdemeanors are crimes punishable by time in county or local jail (usually less than one year), a fine, or probation. To learn more about misdemeanors, see our article Misdemeanor Crimes: Classes and Penalties.
If you are charged with vagrancy, disorderly conduct, public intoxication, or any other crime because you are homeless or unemployed, you should contact a local criminal defense attorney to talk about your case. Attorneys have successfully challenged these laws on the basis that they are unfair. An attorney can help you navigate the criminal justice system and obtain the best possible outcome in your case.