Almost twenty years ago, I wrote in a piece with Professor Dan Kahan that one of the central features of modern criminal procedure was its unrelenting hostility toward institutionalized racism.1 Specifically, we argued that the Supreme Court in a series of cases such as Mapp v. Ohio,2 Miranda v. Arizona,3 Gideon v. Wainwright,4 and Papachristou v. City of Jacksonville,5 all decided in about a decade from 1961 to 1972, voiced a deep concern on the Court’s part about the machinery of ordinary criminal justice in a context of very little federal oversight, especially in the South.6 Before the so-called Warren Court revolution, federal court oversight of state criminal justice was sporadic and shallow, advanced through case-by-case consideration of state criminal court adjudications as opposed to oversight and review of the police investigations that generated those convictions.7 The Warren Court’s cases created what Kahan and I called a “muscular” doctrine8 designed to address the fact that, in a context in which African Americans were systematically disenfranchised and despised, it was impossible to expect the communities in which they resided to apply criminal laws to them evenhandedly.9
In arguing that the consequences of racial discrimination were central to the development of modern criminal procedure, Kahan and I reserved special attention — and praise — for Justice Douglas, who in 1960 wrote what we believed then to be a prescient law review article railing against loitering and vagrancy laws for the specific reason we identified in our essay: that arrests under these laws tended to land on minority groups with insufficient political clout to protect themselves from the vast discretion of local law enforcers.10 And we noted that when the Court finally deemed a traditionally worded11
Rogues and vagabonds, or dissolute persons who go about begging; common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children shall be deemed vagrants and, upon conviction in the Municipal Court shall be punished as provided for Class D offenses.
Papachristou v. Jacksonville, 405 U.S. 156, 156–57 (1972) (quoting Jacksonville, Fla. Ordinance Code § 26-57 (1965)). loitering law from Jacksonville, Florida to be unconstitutionally vague, Justice Douglas wrote the opinion for the Court.12 To sum up, we wrote that the golden thread that ran through the Warren Court’s great criminal procedure cases was a concern about “community distrust” and “discretion skepticism” in the context of the distorting influence of institutionalized racism on the operation of local criminal justice.13
After reading Dean Risa Goluboff’s Vagrant Nation, I am still very committed to the story that I penned with Kahan regarding the relationship between constitutional criminal procedure and racial justice, but as one grows older, one hopes also to grow wiser. I learned a great deal from reading Goluboff’s book. One surprise was the destabilization of my prior belief about the centrality of the civil rights movement to the demise of vagrancy and loitering laws. Do not mistake me here. Civil rights movement actors and the litigators supporting them certainly put substantial pressure on the constitutionality of vagrancy laws in the South, and nothing in Vagrant Nation says otherwise. Moreover, Goluboff makes clear that racial justice is a golden thread that weaved through and connected the different components of the litigation challenging vagrancy laws. But the book’s primary achievement is its delineation of several movements in addition to the well-known civil rights movement of the sixties, notably movements around sexual freedom and nonconformist hippies, and, preceding both of these, cultural shifts featuring the Beats14 and the Wobblies,15 all of which were represented in litigation around vagrancy law — some 250 cases in all16 — that played a role in reshaping our understanding of the relationship between constitutional law and our own lifestyle pursuits.
Goluboff attempts a unifying history in Vagrant Nation. She introduces the topic by noting that, “[t]elling the history of vagrancy laws’ demise thus means telling a legal history of the 1960s writ large” (p. 5). More typical legal histories of the sixties, she claims, tend to focus on the particularized legal changes pertaining to racial equality, sexual freedom, and the like. Her worry is that a focus on particularities necessarily produces “narrative and analytical isolation” (p. 335). Thus, in Vagrant Nation, Goluboff takes a different approach. She argues and then backs up the claim that:
Vagrancy law made an enormous legal bulls-eye in the center of the sixties dartboard. It provided a unifying target, forum, language, and set of institutional arrangements and personnel against which the movement of movements fought . . . . What the vagrancy law challenge shows is that the law’s role in the hierarchies and inequalities of pre-1960s America was neither episodic nor limited to particular arenas of repression. Law — not just any law, but the coercive and always implicitly violent power of the criminal law — was ubiquitous. (pp. 335–36)
Vagrant Nation is a meticulous accounting of the various strands of litigation around vagrancy, including, representing each strand, the recovered histories of the many folks who were subject to these laws and the passionate advocates who represented them. Perhaps the most compelling aspect of the story for lawyers is the revelation that the mechanisms the Court considered in multiple attempts over two decades to dismantle vagrancy and loitering laws intriguingly included substantive constitutional limitations as well as procedural ones. It is difficult to see this simply from reading the cases even if one reads them all together. A backstory to the litigation is required. And so, to make sense of the complex interactions among the cases, litigants, and the Court, Goluboff walks us through two decades of vagrancy litigation and shows us how these cases, brick by brick, built a bulwark upon which the big gun — Papachristou — could be mounted to finally blow these ordinances and statutes away.
In this Book Review, I will provide an overview of this dense book. It is difficult to understand its upshot without some understanding of the sprawling and oftentimes amazing tale Goluboff tells here. Along the way, I will highlight some key points. For example, I found particularly interesting the parts of the history that presage the civil rights strand of vagrancy challenges. Perhaps the most important highlight of this book, though, at least to criminal procedure scholars, is the relationship Goluboff traces between the challenge to — and subsequent demise of — vagrancy law enforcement on the one hand, and the rise and legitimation of the practice of stop and frisk on the other. Goluboff makes a very strong case that there was a tradeoff between these two law enforcement tactics when the Court considered two important cases during the 1967 Term. That tradeoff had important consequences with which we continue to live today.
In the back end of this Review, I will provide some thoughts about a possible disagreement with Goluboff. My reading of Vagrant Nation is that Goluboff appears to lament the Court’s inability to strike down vagrancy laws on the basis of substantive due process or something like it as opposed to the procedural path the Court took, focusing on provision of notice and restraints on discretion. I want to emphasize here that my assessment of this takeaway message may not be Goluboff’s intention, as she does not ever explicitly say she is telling a “what-if” story. To the extent that my reading is correct, however, I am less sanguine than Goluboff seems to be about the notion that policing policy today would be in a better place had the Court struck down vagrancy laws on the basis of protecting some kind of substantive right to nonconformity. It seems to me that nothing about prohibiting vagrancy laws on this basis would prevent or divert us from the world we find ourselves in today. That world is one in which many, many people of color are policed on the basis of suspicion of criminal involvement pursuant to a tactic sanctioned by the Supreme Court around the same time that use of generalized vagrancy laws was becoming less popular, or are arrested under very specific public order or traffic offenses that clearly do not run afoul of constitutional prohibitions on vagueness.17 Thus, while it is possible to characterize today’s policing as regulation of people who are “out of place,” to use Goluboff’s term, the goal of policing “out of place” people today, at least as a formal matter, is crime reduction and not norm conformity per se. Policing agencies across the country engage in proactive policing that resembles, at least in terms of the experiences that private actors have with law enforcers, the policing of the past under vagrancy and loitering regimes. But it is fundamentally different in that whatever contestation there was in the past over norms-management aspects of vagrancy policing, the notion that police should be involved in crime control never was contested. The extent to which there is acceptance of crime control as a legitimate goal for policing — often by any means necessary — complicates Goluboff’s Vagrant Nation and illustrates, I think, the limitations of a fundamental rights approach to constraining police power.
* Walton Hale Hamilton Professor of Law and Faculty Director of the Justice Collaboratory at Yale Law School. I thank John Witt for helpful conversations regarding this review and Ben-jamin Justice for his comments. I am also grateful to the editors of the Harvard Law Review for helpful suggestions.