What Is a Vagrancy Charge?

While not many states or cities use the term "vagrancy" in law anymore, these types of laws still exist. Learn how these laws evolved, what acts are still prohibited, and the penalties for such acts.

What Is Vagrancy?

Historically, vagrancy referred to an idle person who wandered from place to place without visible means of support. Laws referred to individuals as "vagrants," "vagabonds," "beggars," "common drunkards," and "loiterers," to name a few. Basically, these laws criminalize a person for experiencing poverty, homelessness, or unemployment.

What Are Vagrancy Laws?

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. Instead of criminalizing an act (such as stealing or trespassing), vagrancy laws prohibited being something—being unhoused, being unemployed, being addicted to drugs or alcohol, or being a prostitute.

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. However, for a long time, courts upheld these laws because it was believed vagrancy could lead to criminal behavior.

Constitutional Problems With Vagrancy Laws

All laws must be constitutional. This means that no law can violate any of the provisions in the U.S. Constitution. Many vagrancy laws have been struck down because they violated First and Eighth Amendment rights, due process rights, and other rights afforded by the Constitution.

Vagueness and Due Process

A law must also be written so that an ordinary person can determine exactly what acts are prohibited and what people must do (or refrain from doing) to avoid criminal prosecution. Without clear guidelines for conduct, the average person, police officers, and judges have no way of knowing what constitutes a crime.

This uncertainty violates a person's right to due process (fairness) and allows police to decide what behavior they like or don't like. Vagrancy laws, particularly laws prohibiting loitering, have been challenged successfully in court on the basis that they are too vague. (Papachristou v. Jacksonville, 405 U.S. 156 (1972); Chicago v. Morales, 527 U.S. 41 (1999).)

First Amendment Rights and Overbreadth

Laws prohibiting speech or conduct protected under the First Amendment are unconstitutionally overbroad. Vagrancy laws have been invalidated as overbroad when they prohibit legal behavior, such as handing out pamphlets in a public place or wandering a public street without a purpose. These laws might aim to keep prostitutes or beggars off the street, but they also criminalize behavior such as window shopping, advertising, and engaging in political speech. (Hayes v. Oklahoma City, 487 P.2d 974 (1971); City of Alliance v. Carbone, 909 N.E.2d 688 (Ohio Ct. App. 2009).)

Cruel and Unusual Punishment

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 their control. It violates the tenets of fairness to jail someone based on financial catastrophes, medical problems, mental illness, or addiction. (Robinson v. California, 370 U.S. 660 (1962); but see Grants Pass v. Johnson, 603 U.S. ___ (2024) (questioning Robinson's reliance on the Eighth Amendment).)

Do Vagrancy Laws Still Exist?

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, and begging. More recent examples of laws cited as pretexts for combatting "vagrancy" include prohibitions against blocking sidewalks, urban camping, public indecency, jaywalking, and aggressive soliciting.

Critics argue that these newer laws replicate the problems of vagrancy laws and that states still use them to unfairly jail and harass people. Proponents say these more precisely defined laws protect the quality of life for all citizens.

What Are the Penalties for Vagrancy?

Most vagrancy and related laws are misdemeanors or violations (fine-only offenses). The exact penalty depends on the state law and the type of violation. For instance, jaywalking might be a violation with a fine of $100 to $200, whereas disorderly conduct could be a misdemeanor with a maximum penalty of up to a year in jail.

Getting Legal Help

If you're facing criminal charges for vagrancy-type laws, talk to a public defender or criminal defense attorney. Organizations, such as the ACLU, may also provide information or assistance if you feel harassed by police or other government officials for being unhoused or unemployed.