No Right Not to Work

What do stubborn children, fortunetellers, jugglers, gypsies, practitioners of hoomanamana (Hawaiian black magic), sleight-of-hand artists, common fiddlers and persons who paint their faces have in common? Under the varying laws of the 50 states, they are all vagrants and punishable by fines of up to $1,000 and two years in jail. Almost without exception, such charges would be laughed out of court. But vagrancy laws are so vague that they apply to a great many other people too--and when they are used, or when the police even try to put them to work, they are no laughing matter.

Vagrancy laws got their harsh nature in harsh times. After the Black Death decimated 14th century England, such a statute was enacted to keep workers from roaming about to take higher paying jobs and to require all able-bodied men to work. The notion that everyone should work appealed to the moralistic settlers of Colonial America who so preserved the duty-to-work concept that the ancient attitude still persists--anyone who is drifting about and refuses to work must be a criminal and should be locked up.

Elastic Uses. Such a presumption of guilt conflicts with modern U.S. legal concepts. Yet when a person is booked for vagrancy, it is, in effect, up to him to prove his innocence, and for the drunks and down-and-outers who suffer the great majority of vagrancy arrests, this can be difficult. Since vagrancy is regarded in all states as either a petty offense or misdemeanor, defendants are usually given no chance to consult a lawyer and prepare a defense. They are summarily tried by police courts and magistrates in procedures that often last only seconds.

In addition to bagging bums, police use vagrancy laws as catchalls with which to hold crime suspects during investigations, to keep tabs on illicit activities, to chase undesirables out of town, and to pester criminals on whom they have been unable to pin a rap. In general, the attitude is that the laws are there to use when no other law will serve. New Orleans uses vagrancy laws to jail gamblers. St. Louis police haul in prostitutes for vagrancy "just to let them know we have them under surveillance." In Philadelphia a man who insisted on making love to his wife three and four times a night was jailed for vagrancy because, as a social worker explained, "the magistrate couldn't think of anything else, and he couldn't leave him there with that poor girl." In Manhattan two weeks ago, Gambler Frank Costello was arrested for vagrancy while dining in a theater-district restaurant, Dinty Moore's. Costello's lawyer challenged the charge, and a judge quickly dismissed it after the arresting officer admitted that he had not heard anyone offer 73-year-old Costello a job and Costello refuse to take it.

New Trend. The ease with which Costello beat the rap shows the weakness of vagrancy laws. Yet precisely because the prosecution usually backs off so fast on such charges when the accused is prepared to fight, vagrancy laws are seldom tested in court, where they would almost certainly be ruled unconstitutional.

Do the police need such vague and questionable aid? Many jurists who oppose the vagrancy laws on principle, but have no desire to reduce police efficiency, point out that crime-conscious U.S. communities are only too willing to write strong new measures--such as New York's stop-and-frisk law (TIME, March 20)--to give police the powers they say they need.

Spearheading the drive to replace the old laws with sensible, precise new ones is the prestigious American Law Institute. Its new model penal code would permit police to arrest loiterers behaving in an alarming manner, but would make sure that the offender was arrested for what he did and not for what he was.

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