Is There Something Suspicious about the Constitutionality of Loitering Laws
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Is There Something Suspicious About the
Constitutionality of Loitering Laws?
I. INTRODUCTION
[T]he need for strengthened law enforcement tools to combat the epidemic of
crime that plagues our Nation' is greater than ever. Laws directed at crime
prevention are an essential weapon in the lawmakers' arsenal. Such laws are,
however, some of the most difficult to enact and enforce because they raise a number
of constitutional and practical concerns. These concerns revolve in large part around
the amount of discretion given law enforcement officers and courts in determining
what behavior should be labeled criminal and the time when it is appropriate to
intervene in potentially criminal activity.
Laws against inchoate crimes like attempt, solicitation, and conspiracy are
commonly used in the effort to prevent criminal activity. Their enforceability and
constitutionality are for the most part well settled. The discretion afforded law
enforcement officers, prosecutors, and juries in the enforcement of loitering laws,
however, lends itself to abuse. Thus, loitering statutes and ordinances are probably
the most controversial laws used to prevent crime.
This Note will first examine the historical and constitutional background of
loitering laws by considering an ancestor of modern loitering laws, the vagrancy
law.2 To better understand the potential practical concerns underlying the enforce-
ment of various types of loitering laws, this Note will go on to consider how laws
against attempted crimes, solicitation, and conspiracy are enforced.3 Four of the more
common types of modern loitering laws will then be examined.4 This Note will
demonstrate that while loitering laws serve a valuable function in the war against
crime, courts and legislatures must confine the scope of these laws to the limitations
mandated by the Constitution.
II. VAGRANCY LAWS
The English vagrancy laws that were the precursor of American vagrancy laws
were first instituted for economic reasons.5 As the feudal system began to deteriorate,
laborers began to leave their fiefs to find other higher paying jobs. Among the first
responses to the resulting labor shortage were laws compelling laborers to remain in
I. Kolender v. Lawson. 461 U.S. 352. 361 (1983).
2. See iffra notes 5-21 and accompanying text.
3. See infra notes 22-34 and accompanying text.
4. See infra notes 35-144 and accompanying text.
5. Papachristou v. City of Jacksonville, 405 U.S. 156, 161 n.4 (1972); Note, Homelessness in a Modern Urban
Setting, 10 FORDOAM URB. L. REV. 749, 754 n. 16 (1982) [hereinafter Note, Homelessness].](ViewImageLocal?handle=hein.journals/ohslj50&div=35&collection=&method=preview&ext=.png&size=3)
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Is There Something Suspicious about the Constitutionality of Loitering Laws
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