We know, from hard experience, that the police will not enforce these orders equally. History demonstrates that they will be enforced most harshly — and often without proper cause — against people of color and the poor. Curfew orders that attempt to suppress protests against police violence have superseded the pandemic’s stay-at-home instructions in many cities, but there’s good reason to fear that the two crises will remain intertwined.
To many observers, the covid-19 orders may have first seemed as novel as the new coronavirus itself. In fact, these kinds of orders are as old as the hills. They are the latest in a long line of so-called vagrancy laws, whose purpose is to curtail the movement of people in public. In the United States, vagrancy has a deplorable history. As the legal historian Risa Goluboff shows in her magisterial book, “Vagrant Nation,” our police consistently have used vagrancy as a weapon to harass, intimidate and incarcerate people they consider undesirable. During the 20th century, police used these laws to punish the poor, African Americans, civil rights and war protesters, hippies, gays and lesbians, immigrants, and anyone else whose public presence the police found offensive.
Vagrancy laws originated in England in part as a response to the Black Death. The objective of these laws then was to protect the pockets of landowners. As the plague decimated the labor force, laborers had the opportunity to demand higher wages, but only if they were permitted to move from one place to another. Medieval lawmakers created the crime of vagrancy, which punished people who tried to migrate to avoid work or seek higher pay. By doing so, lawmakers sought to preserve an economy that relied on cheap labor extracted from people who were permanently tied to the land and to the land’s owner.
Vagrancy has proved to be a remarkably resilient tool for population control. Even as economic, social, and political conditions changed dramatically — and as centuries marched by — vagrancy prohibitions remained in force in the United States. Before and after the Civil War, vagrancy was explicitly and aggressively used to curtail the freedom of movement of African Americans — to keep them in their place.
During the Jim Crow era, vagrancy laws were used for purposes similar to those that motivated the medieval regime, to prevent African Americans from moving out of grueling and low-wage agricultural jobs. Then too, our lawmakers consistently have found fresh reasons for wanting to banish some people from the streets altogether and to limit the manner in which people behave there.
The Supreme Court has held that some vagrancy laws violate the constitutional guarantee of due process of law. For example, in 1972, in Papachristou v. City of Jacksonville, the court invalidated a Jacksonville, Fla., vagrancy ordinance that punished people for “loitering, wandering, or strolling around from place to place.”
As the court found, the Jacksonville prohibition was so vague as to give the police a blank check to arrest anybody they wanted. Among those who offended the Jacksonville police were interracial couples out on a date, as well as black men waiting for a ride to a job site. Our constitutional commitments to equal justice cannot allow a scheme in which “poor people, nonconformists, dissenters, idlers” are allowed to appear in public only at the whim of the police, the justices wrote.
Today’s covid-19 orders do not use the demeaning label “vagrant.” Their objective appears to be benign, as lawmakers are heeding medical advice about how best to save lives. Their language may seem to place precise limits on the police. But the orders are still vagrancy rules by another name, and the burden of suspicion, investigation, arrest and punishment will fall most heavily on people of color — as it usually does in the United States.
Early demographic data confirm these fears. In May, the Brooklyn district attorney reported that, of 40 people arrested for social distancing violations, 35 were black, four were Hispanic and one was white. Media reports show that some of these arrests are violent. In one Manhattan case, a police officer knocked an African American bystander to the ground, then put his full weight on the young man’s upper torso and neck. On that same day, police in other parts of New York handed out face masks to white sunbathers who were clustered closely together in parks and on piers.
These public health orders give enormous — and dangerous — discretion to the police. How are you to know exactly what the orders forbid? What happens if you are on the streets because you have no “home” to shelter in? What activities are “essential?” What amounts to a “social distance,” and does the same measure apply to people exercising on the street as to those out on the golf course? What counts as a “face covering?”
The answers to all of these crucial questions will fall to the police. We know from watching video after video of police killing black Americans suspected of committing nonexistent or trivial crimes that any encounter may be the last time that a child, a sibling, a spouse, a parent, a colleague, a neighbor, a friend draws their breath.
Lawmakers know these things, too. It is beyond time for them to begin dismantling the tools that enable and embolden racist policing. A good first step now would be for our lawmakers to remove criminal penalties from laws related to the coronavirus pandemic. Until they do so, they make themselves — and all the people they represent — accomplices to this evil form of violence.