New Article: Karin Drucker, Creating “Criminals”: Homelessness in the Sunshine State, Harv. Civil Rights-Civil Liberties L. Rev. (2020). Abstract Below:
Criminalizing homelessness and poverty is an American tradition. Socalled “vagrancy laws,” which prohibited “vagrants,” “wander[ers,]” and “habitual loafers” from being in public, found their first big defeat in Papachristouv. City of Jacksonville. In that case, the Supreme Court struck down such laws as unconstitutionally vague. To this day, unhoused plaintiffs continue to challenge vagrancy-type laws on vagueness grounds. However, this case study from Sarasota, Florida—which draws on litigation history, legislative revisions, and enforcement data—reveals that vagueness doctrine has had perverse consequences for defendants charged under modern-day vagrancy laws. This Note begins with vagueness doctrine’s stated aims—reducing “arbitrary” police enforcement, reducing racial discrimination, and improving notice to defendants. Examining one jurisdiction in Florida, this Note shows that successful vagueness challenges have improved notice to possible defendants and constrained police ability to “arbitrarily” enforce the city’s ordinance. However, vagueness challenges have also led to unexpected results related to police power, racial discrimination, and the severe punishment that defendants receive. Vagueness challenges prompted Sarasota’s local leaders to rewrite its statute with increasingly detailed language. This “tailoring” of the law helped to give police enormous power to decide who will be found guilty, fined, and incarcerated. This Note also argues that courts’ use of vagueness doctrine to reduce racial discrimination is misplaced. Finally, the data show that the law was enforced almost entirely against unhoused people, whom it punished via substantial incarceration and fines. This Note reveals the aspirations of a doctrine and theorizes about its actual effects on both statutes and enforcement. It concludes that, in this jurisdiction, vagueness doctrine appears to accomplish some of its stated goals, but it also empowers police within a system that makes “criminals” of the region’s most vulnerable residents.