Panhandling in New York has been elevated to the status of a hallowed constitutional right. Last September, U.S. District Court Judge Robert Sweet struck down New York State Penal Law 240.35, which made it a misdemeanor to loiter, remain, or wander about in a public place for the purpose of begging.
Sweets ruling, which the city is appealing, came in a class-action suit filed by Jennifer Loper and William Kaye, two white youths who had been traveling through New York and have since left. (I served as an expert witness on behalf of the New York Police Department.) By their own statements, Loper and Kaye had never been harassed, intimidated, or arrested by police, though officers had on occasion asked them to move along.
Their experience was typical: Police seldom arrest people for panhandling or similar behavior, except when a disorderly person repeatedly ignores an officers directives. While such mild measures do not stop panhandlers from begging or pestering people in the future, they do reassure citizens and put pressure on beggars to be less aggressive in the pursuit of money.
Sweet specifically enjoined police from ordering beggars to move on, holding that even such a gentle approach violates the First Amendments guarantee of free speech. In the judges view, a beggar soliciting money for himself is little different from someone soliciting money on behalf of a charitable organization: The beggar just saves on administrative expenses. Moreover, according to Sweet, a panhandler is implicitly conveying a broader social message: that social and economic conditions and opportunities and governmental services are such that many people are unable to support themselves.
Sweets argument conjures up images of a society seeking to sweep its problems under the rug by empowering cops to harass the desperately poor. The judges fear has some basis in history: Until recently, public order was preserved largely through laws that criminalized dangerous classes of people. Going back to medieval England, people who belonged to such categories as vagrants, rogues, gamblers, idlers, and drunkards were considered criminals, simply on the basis of their social class. Such classes of people, it was believed, threatened society in three ways: They did not work, they consumed scarce resources in the form of aid, and their idleness predisposed them to lawlessness. Many of these English legal traditions were carried over into U.S. state laws, including a 1788 New York statute that classified as disorderly all persons who go about from door to door or place themselves in the streets, highways, or passages, to beg in the cities or towns.
The medieval, Elizabethan, and Victorian world views that shaped such vagrancy laws are no longer with us. Consequently, criminalizing people on the basis of status or class has become legally and socially unacceptable. Since the middle of this century, courts have properly rejected such laws in the name of free speech and due process. While many remain on the books, they are not enforced.
Efforts at preserving public order have therefore had to turn in a new direction. Rather than criminalize disorderly people, laws must now target disorderly conduct, a crucial distinction that was lost on Judge Sweet, who wrote:
A peaceful beggar poses no threat to society. The beggar has arguably only committed the offense of being needy. The message one or one hundred beggars sends [sic] society can be disturbing. If some portion of society is offended, the answer is not in criminalizing these people ... but addressing the root cause of their existence. The root cause is not served by removing them from sight, however; society is then just able to pretend they do not exist a little longer. [emphasis added]
The statute Sweet struck down, however, did not entail removing anyone from sight. The poor, the homeless, and the disheveled were perfectly free to use public spaces just like anyone else. The law simply imposed a rule of conduct: no begging.
Such rules are vitally important. Researchers such as Wesley Skogan of Northwestern University have shown that signs of disorder—panhandling, street prostitution, graffiti—help create the spiral of urban decline, as fearful citizens retreat into their homes, ceding the streets to criminals. Halting this spiral requires a strong set of laws against disorderly behavior, formulated with four basic principles in mind.
First, as Skogans research has shown, a broad consensus exists about what constitutes disorder. People of all social classes and ethnic groups know what disorder is, fear it, and want something done about it.
Second, police must have a clear legal mandate to do the things society expects of them. Absent such a charge, either they are unable to fulfill citizens reasonable expectations, or they can do so only by working around the law. Everyone in policing knows a story like this: The mayor tells the chief of police, Bums are bothering women in the park during lunch. Dont do anything illegal, but get them out of there. The message gets passed along through the ranks and to the officers who patrol the park. They understand what is really meant: Get them out of there. Do what you have to do and cover yourself. Officers become dirty workers, doing what has to be done irrespective of civil rights, legality, morality, or public debate and policy.
Third, police must have broad discretion to enforce the law in accordance with commonsense standards of order. Behavior appropriate at 4 P.M. can be outrageous at 4 A.M. Behavior appropriate at the Chinese New Year is improper at other times. Behavior appropriate at 11 P.M. in Times Square is unsuitable in a residential Brooklyn neighborhood at 9 P.M. on a weeknight. Judge Sweet, who does allow that time, place, and manner restrictions on begging might be permissible, would do away with such discretion. No one could devise laws specific enough to cover every situation, especially given the amazing inventiveness of con artists, minor criminals, and opportunists.
Finally, police officers must be trained—as nearly all are today—to understand that part of their job is protecting the civil rights of citizens, even those who once would have been condemned as members of dangerous classes.
Society has properly recognized that the poor, minorities, and outcasts deserve the same constitutional protections enjoyed by middle-class citizens. But citizens also deserve to be protected from the dangers posed by public disorder. By overturning a rule of conduct as if it were a ban on a group of people, Judge Sweet has upset the delicate balance of rights and responsibilities so essential to urban civility.