As Black Lives Matters mobilizes a new generation of social movement activists, it’s worth looking back at the old one. The legacies of the civil rights movement of the 1960s include hopeful developments—the rise of the black middle class and the election of Barack Obama as the nation’s first black president. They include the inspiration and model the movement itself offered to other groups striving for legal and social change. And they include more dispiriting reflections about continuing race-based educational disparities, ongoing police brutality, and persistent income inequality.
But the civil rights movement left other legacies that are less visible today. One story that largely escapes public notice is the downfall of a little-known but powerful category of American criminal law, a class of laws that licensed virtually unlimited police discretion for centuries: vagrancy laws. And it was the civil rights movement that largely brought about their demise.
Vagrancy, loitering, and suspicious persons laws came to the American colonies from medieval and Elizabethan England. They made it a crime to be idle and poor, to wander about with no apparent purpose and no legitimate livelihood, or simply to be immoral in the eyes of local officials. The crime of vagrancy was vague and flexible. The police used it with relative abandon in all 50 states. Low-level courts with few procedural protections allowed the whole process to fly largely under the radar of public view, well into the 20th century.
Unsurprisingly, armed with this roving license to arrest, local officials used state and local vagrancy laws for a breathtaking array of purposes that went far beyond our usual notion of vagrants: to keep out suspicious strangers; to stop crimes before they were committed; to suppress nontraditional sexuality; to keep racial minorities, political troublemakers, and nonconforming rebels at bay. As these uses suggest, vagrancy laws presumed that everyone had their proper place and that the criminal law should help keep them all there. The vagrancy law became the go-to response to anyone who threatened to move “out of place”—as many described it during vagrancy laws’ reign—whether that be socially, culturally, politically, racially, sexually, economically, or spatially. Over time, states and localities deployed and retooled vagrancy laws for use against almost any—real or perceived, old or new—threat to public order and safety.
In the 1960s, those perceived threats became particularly acute, as many of those who had been the targets of vagrancy repression began to mobilize. Beats and hippies; Communists and Vietnam War protestors; racial minorities and civil rights activists; gays, single women, and prostitutes organized, asserted their rights, found lawyers, and brought constitutional challenges to vagrancy laws.
Vagrancy law became especially visible and toxic when law enforcement wielded it against the civil rights movement in the South. Arrests of Martin Luther King Jr. for vagrancy in Selma, Alabama, and Louisville, Kentucky, put the issue on the civil rights radar. Birmingham, Alabama’s sheriff, the infamous Eugene “Bull” Connor, kept it there. In 1958, a group of Montgomery ministers came to Birmingham to help King’s colleague, Fred Shuttlesworth, with a bus boycott modeled on their own. Connor had the ministers arrested for vagrancy while they ate lunch in the Shuttlesworth home. A few years later, Connor’s cops arrested Shuttlesworth himself for the related crime of loitering while he spoke to a few colleagues on a downtown street corner during a department store boycott.
Beyond these arrests of civil rights leaders, law enforcement officers regularly deployed vagrancy and loitering laws against organizers, activists, and protestors across the South. The practice became so common that civil rights organizations issued special “vagrancy forms” to their workers. The forms guaranteed that the workers’ salaries were sufficient to maintain each “as a reputable member of the community.” Such efforts were still not enough to stave off vagrancy arrests in Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, and elsewhere. In his book, Inside Agitators, David L. Chappell quotes a sheriff answering the question of what charges police officers would bring against arrested protestors. “Investigation, vagrancy, and all that crap,” the sheriff says
These arrests backfired. Eventually they led to denunciations, rallies, investigations, and headlines that heightened public awareness—how could reputable ministers and other upstanding citizens be arrested in private homes for the lowly crime of vagrancy? One Baltimore Afro-American headline captured the point well: “For Integration? You’re a Vagrant.”
The arrests also brought a whole new array of legal resources to bear on the constitutional challenges to vagrancy laws. Initially, finding a lawyer was not so easy. Very few local lawyers were willing to defend civil rights protestors in the South in the 1960s. Mississippi boasted four black lawyers and 2,100 white ones, with almost all of the latter either staunchly opposed to defending civil rights protesters or fearing the consequences of doing so. Other Southern bars were similarly, if not quite as starkly, situated. So under the auspices of a whole slew of new national organizations, Northern lawyers flew south or drove. Some stayed for a week, others a month or several years. They variously looked like “beatniks” or businessmen. But as this growing army of lawyers went about defending movement activists, they saw the workings of vagrancy laws up close, and even in some instances experienced their power firsthand.
When the NAACP Legal Defense Fund brought Fred Shuttlesworth’s case all the way to the Supreme Court in 1965, the court reversed Shuttlesworth’s loitering conviction. Though the case was itself narrow and technical, it highlighted vagrancy-related laws as weapons the police could use against political dissidents and civil rights crusaders. More generally, the case revealed the immense contradictions between modern constitutional law and criminal procedure and the police practices sanctioned by vague and elastic vagrancy laws.
It would take another seven years for the Supreme Court to unequivocally declare vagrancy laws unconstitutional. When they did so, in Papachristou v. Jacksonville, the effect would be to constrain police power not only on behalf of black Americans but on behalf of so many who had previously been relegated to their prescribed “places” in polite society.
Still, the problem of police discretion generally and police discretion to harass, regulate, oppress, defame, and arrest black Americans on the street remains today. As we tackle new and recurring problems of police abuse, we would do well to remember this forgotten legacy of the civil rights movement. It reminds us that concerted efforts—by lawyers, journalists, advocates and protestors—can change even police practices deemed legitimate for hundreds of years. And it reinforces the lesson that the struggles of one group can have profound implications for so many more.