Reported below: See 197 A. 2d 154.
Charles W. Wolfram argued the cause for petitioner, pro hac vice, by special leave of Court. With him on the briefs were Lawrence Speiser, Melvin L. Wulf and Monroe Freedman.
Hubert B. Pair argued the cause for respondent. With him on the brief were Chester H. Gray, Milton D. Korman and Ted D. Kuemmerling.
The writ of certiorari is dismissed as improvidently granted.
MR. JUSTICE HARLAN, concurring.
Among the several reasons which support the action of the Court in dismissing the writ in this case as improvidently granted, I rest my decision to join in this disposition on the lack of a record, without which I do not believe the constitutional issues tendered can properly be decided.
MR. JUSTICE DOUGLAS, dissenting.
We granted certiorari in this case to consider what I think is an important question: the constitutionality of petitioner's conviction of "vagrancy." Relying on our determination that this case presented substantial questions [383 U.S. 252, 253] of constitutional law, the parties comprehensively briefed those questions and we heard argument. But now the Court decides that the writ of certiorari must be dismissed as improvidently granted.
With all respect, I must dissent from this disposition of the case.
In the first place, the alleged "untimeliness" of the petition was called to the attention of the Court by respondent in its brief opposing the grant of certiorari. We were thus fully aware of this point when we granted the writ. Moreover, Rule 22 (2) is not jurisdictional or mandatory and may be waived by this Court under proper circumstances, at least where no jurisdictional statute is involved. Heflin v. United States, 358 U.S. 415, 418 , n. 7. Having brought the case here, required the parties to brief the issues, and heard argument, it is most inappropriate to decline to exercise our discretion and waive the time bar of Rule 22 (2). 1
Nor, in my opinion, is the objection to the adequacy of the record well founded. Petitioner argued in this Court that the statute defining "vagrant" is unconstitutionally vague. The challenged statute is 22-3302 (3) of the District of Columbia Code, and it provides that a "vagrant" is:
The Lanzetta case is close kin to the present one because the crime there charged was one of being a "gangster" which was defined as any person "not engaged in any lawful occupation, known to be a member of any gang consisting of two or more persons, who has been convicted at least three times of being a disorderly person, or who has been convicted of any crime in this or in any other State." 306 U.S., at 452 . The Court, without considering the facts of record, looked only at the statute and the charge of the indictment and ruled that the Act was unconstitutional for vagueness.
If one takes my view and approaches this case as an attempt by the Government to regulate the status of [383 U.S. 252, 255] being a vagrant, the absence of a detailed record is - as with the vagueness point - no impediment to proper analysis.
Our vagrancy laws stem from the series of the Statutes of Labourers (23 Edw. 3; 25 Edw. 3, Stat. I) first passed in 1349 and amended and modified from time to time over the next 200 years. 2 They reflected "the criminal aspect of the poor laws." 3 They "confined the labouring population to stated places of abode, and required them to work at specified rates of wages. Wandering or vagrancy thus became a crime." 4 History tells the story from the point of view of the Establishment: that wandering bands of people, who had left their masters, committed all sorts of crimes and hence must be punished for wandering. That philosophy obtains in this country, because [383 U.S. 252, 256] the English statutes provided the seed of our vagrancy laws. Article IV, § 1, of the Articles of Confederation assured the free inhabitants of each State, save "paupers, vagabonds, and fugitives from Justice," the privileges and immunities of citizenship of the several States, and the right of free ingress and egress to and from each State.
But there was incongruity in superimposing the English anti-migratory policy upon the law of America:
I do not see how economic or social status can be made a crime any more than being a drug addict can be. Robinson v. California, 370 U.S. 660, 668 (concurring opinion). 7 No overt act of criminal dimensions is charged [383 U.S. 252, 258] here. Petitioner was either arrested on suspicion 8 or for innocent acts 9 which were used as a cloak for an arrest on grounds the police could not establish. In either event the arrest and conviction were, in my view, unconstitutional.
The American Civil Liberties Union announced it would appeal the Hicks case and attack the constitutionality of his conviction under the vagrancy statute. The [383 U.S. 252, 259] ACLU said the statute was unclear and was being used by police to persecute Hicks and others who were only enjoying themselves innocently in a public park.
The young troubadour was arrested by a Park Policeman Wednesday after being warned not to play his guitar in Dupont Circle. As a result, residents of the area and "regulars" in the park are protesting what they consider an invasion of their right to assemble in peaceful recreation.
Top officials of the Interior Department spoke out in favor of guitar playing and folk singing as a "wholesome activity that should not be disturbed but encouraged" in the Nation's public parks.
At the trial Wednesday, Park Policeman James E. Thomas told Judge Thomas C. Scalley that Hicks was unemployed. Hicks testified that he was only visiting Washington for a few weeks and that he had shown Thomas a $20 bill when the policeman had threatened to arrest him for vagrancy if he ever came back to Dupont Circle.
When he was arrested Wednesday, Hicks was sitting on a bench with a friend, his guitar in a case and money in his pocket, testimony showed.
At the sentencing yesterday, Judge Scalley told the minstrel that he was suspending sentence and that Hicks was free on "personal bond." The conviction went down on his record, however.
Reaction came swiftly. At Dupont Circle, angry sympathizers plotted a demonstration.
The students were priced out of Georgetown, moved to Foggy Bottom, then relocated to the Dupont Circle area when urban renewal closed Foggy Bottom to them.
They live for blocks around the Circle in low-rent rooming houses, studios and shared apartments. Most are poor, some are out of school temporarily to work evenings and part-time wherever they can find jobs.
Generally, they are clean-cut, neatly dressed in sports clothes, articulate, quiet and yet quick to take offense when they think civil authorities are breathing too closely on their necks.
When they can, they play chess in the Circle, around the fountain, argue age-old questions, or gather around the talented and untalented guitarists among them for spontaneous folk music sessions that quickly draw the interest and amusement of passers-by.
On recent Sundays, spontaneous "hootenannys" have started out of nothing, drawing small crowds which sat listening on the grass.
On May 19, Park Policemen routed the last hootenanny, sending everyone scurrying for cover. Attorney Arthur Neuman was passing by and snapped pictures.
Walter Pozen, assistant to Secretary of the Interior Stewart Udall, said, "Not only do I think they shouldn't be singled out - they should be encouraged. The parks are there for recreation and general use." [383 U.S. 252, 261]
The statute describes a vagrant as "immoral, profligate and dissolute (with) no lawful means of employment or support, without any settled home."
[ Footnote 2 ] III Stephen, History of the Criminal Law of England 203 et seq. (1883).
[ Footnote 3 ] Id., at 266; see II Holdsworth, History of English Law 459-462 (1927). The purpose of these statutes was to offset the loss of workers and to check the rise in wages which resulted from the Black Death. Those able to work, and lacking other means of support were compelled to work, and at regulated wages. Workers were confined to their existing place of residence. Stephen suggests that the "object of this legislation was to provide a kind of substitute for the system of villainage and serfdom, which was then breaking down . . . ." Stephen, op. cit. supra, at 204. See also Kenny's Outlines of Criminal Law 411 (Turner ed. 1958). Early laws forbidding begging distinguished between beggars "able to serve or labor" and "beggars impotent to serve." See, e. g., 12 Rich. 2, c. 7. Economic conditions changed; when work became scarce, laborers were forced to look elsewhere. The focus of the laws dealing with laborers shifted; the ban on migration became a preventive to keep a parish from being saddled with the needs of foreign paupers and idlers. "The vagrant came to be regarded rather as a probable criminal than as a runaway slave. He must be made to work or else be treated as a criminal." Stephen, op. cit. supra, at 274.
[ Footnote 4 ] Stephen, op. cit. supra, at 267.
[ Footnote 5 ] Foote, Vagrancy-Type Law and Its Administration, 104 U. Pa. L. Rev. 603, 617 (1956). And see Scott, Criminal Law in Colonial Virginia 272-275 (1930).
[ Footnote 6 ] Foote, op. cit. supra, n. 5, at 625 et seq.
[ Footnote 7 ] The volume of vagrancy cases in the courts each year is large. The most recent FBI Crime Reports show that in 1964, in 3,012 cities with populations exceeding 2,500, 125,763 vagrancy arrests were made (out of a total of 4,155,924 arrests for that same period). Uniform Crime Reports - 1964, p. 120.
[ Footnote 8 ] For the prevalency of arrests "on suspicion" or "for investigation" in the District of Columbia, see Report and Recommendations of the Commissioners' Committee On Police Arrests for Investigation (the Horsky Report), July 1962.
[ Footnote 9 ] He was either arrested for playing a guitar in a park (see Appendix) or for sleeping in a men's room (cf. Jean Valjean in Victor Hugo's Les Miserables), for the information reads as follows: "Eddie J. Hicks late of the District of Columbia aforesaid, on or about the 19th day of May in the year A. D. nineteen hundred and sixty three, in the District of Columbia aforesaid, and on Dupont Circle north, west, was then and there, and has been since that day and still is a vagrant, to wit; a person leading an immoral and profligate life who has no lawful employment and who has no lawful means of support realized from a lawful occupation and source and who wanders abroad and lodges in a public park and public comfort stations, living upon the charity of others, and who lives idly and without any settled home, and otherwise leading a profligate life." [383 U.S. 252, 262]