Chapter Twelve

1. Chapter Twelve Crimes Against Public Order and Morals Joel Samaha

2. Chapter Twelve Learning Objectives To understand how disorderly conduct crimes (quality of life crimes) are aimed at bad manners in public. To know how efforts to control bad manners in public underscore the tension between order and liberty in constitutional democracies. To know the definition of disorderly conduct and its’ forms (individual and group) To understand that the broken windows theory claims that quality of life crimes are linked to serious crime.

3. Learning Objectives (cont.) To appreciate that the widespread consensus among all classes, races, and communities that bad behavior of “street people’s” and “street gangs’” should be controlled has shaped the content of the criminal law. To understand how most people are more worried about bad public manners than they are about serious crimes To know the difference between vagrancy and loitering and understand the history of laws that address these crimes To know the difference between panhandling and understand the legal arguments that have arisen in it’s restriction due to First Amendment protections.

4. Learning Objectives (cont.) To understand that fear of gangs has led state and city governments to enact criminal laws to obtain civil gang injunctions to regulate gang behavior To appreciate that the empirical evidence on the effectiveness of civil gang injunctions in controlling gang behavior is mixed To know how “victimless” crimes against public decency are a hot-button issue between those who believe that criminal law should enforce morality and those who believe the nonviolent behavior of competent adults is none of the laws’ business.

5. Disorderly conduct crimes • Crimes against public order and morals • Order-”good manners” • Liberty-right to come and go without government interference • Minor crimes, minor punishment • Important • Represent large portion of criminal justice system • Affect large number of defendants • Influence view of public justice by citizenry

6. Disorderly conduct crimes (cont.) • Individual: • Disorderly conduct—fighting in public • Actual disorderly conduct • Fighting in public, making unreasonable noise • Constructive disorderly conduct • Conduct that tends to provoke or excite others to break the peace

7. Disorderly conduct crimes (cont.) • Group disorderly conduct • Common law • Unlawful assembly • Group of at least three persons joined for the purpose of committing an unlawful act • Rout • If individuals in the unlawful assembly took action toward achieving the unlawful purpose • Riot • If group committed an unlawful violent act or performed a lawful act in a violent or tumultuous manner • Modern group disorderly conduct • Riot still exists • No longer just misdemeanors • Riot is felony under modern law

8. Discussion Activity Research disorderly conduct offenses in your state What acts are considered disorderly conduct? What is required to be guilty of disorderly conduct? What is the most common act that is often charged as a disorderly conduct offense? What is the penalty for committing a disorderly conduct offense?

9. Quality-of-life crimes • Crimes of bad manners in public • People across social milieu believe that bad public manners create disorder and threaten the quality of life of ordinary people • Others believe that making bad manners against the law, denies the individuals liberty without due process • Petty crimes aren’t just bothering law-abiding citizens (Wilson and Kelling)

10. Broken Windows Theory Research • Wilson and Kelling: • Bad manner crimes are connected to serious crime • Kelling: • demonstrated a direct link between disorder and crime • Scogan: • neighborhood levels of disorder are closely related to crime, to fear of crime, and belief that serious crime is a neighborhood problem • Harcourt: • weak to no causal link between disorder • Sampson and Raudenbush: • disorder and serious crimes have common causes, but they don’t cause each other—at least not directly

11. Quality of Life Crimes (cont.) In high and low crime cities alike, public drinking and loitering youth top the list of worries among all classes, races, and ethnic groups People are more concerned about quality of life crime than serious crime

12. Quality of life crimes (cont.) • In response to citizen concern about quality of life crimes, legislatures have passed variety of laws (for centuries) • Vagrancy • Roaming about without visible means of support • Loitering • Standing around without no apparent purpose

13. Vagrancy and Loitering Laws • Ancient laws • Trends in these laws follow societal circumstances (Great Depression) • courts striking down laws as unconstitutional starting in the 1940s • Striking down these laws in 1960s and 1970s • Unfairly discriminating against the poor • Papichristou v. City of Jacksonville (1972) • Struck down vagrancy law as unconstitutional

14. Vagrancy and Loitering Laws (cont.) • Kolender v. Lawson (1983) • Court imposed constitutional restrictions on loitering laws • Struck down statute for wandering the streets and failing to produce credible identification • 1980’s gave rise to new concerns about quality of life crimes which led to new codes and ordinances • Many states included provisions which dealt directly with homelessness

15. Vagrancy and loitering laws (cont.) • Discussions of these laws and societal problems highlight the natural tension between order and liberty • Order = acting according to ordinary people’s standards of good manners • Liberty = right of individuals to come and go as they please without interference

16. Vagrancy and loitering laws (cont.) Laws seen as attack on poor and weakest members of society for convenience of wealthy On other hand, as number of vagrants, loiterers, etc “increased arithmetically, the worrisome behaviors increased geometrically” Preliminary Injunction-temporary court order to do or stop doing something

17. Case: Joyce v. City and County of San Fancisco • Facts: Court granted preliminary injunction to stop the Matrix Program, a program designed to address quality of life offenses. • Issue: Did the program violate the rights of the homeless people? • Holding: Preliminary injunctions are extraordinary relief and must be granted sparingly. Injunctions requested (by the homeless to stop enforcement of the Matrix program) can’t be granted because they lack the necessary specificity to be enforceable and the plaintiffs haven’t established the probability of success on the merits (if they were to sue.)

18. Panhandling Stopping people on the street to ask them for food or money Laws against panhandling are not applied equally to individuals as to charities Involves free speech protections

19. Panhandling (cont.) • Court has created tests to determine whether free speech is being violated • Where speech takes place • Traditional public forums, non public forums, designated public forums • Reasonable time, place, and manner restrictions • Can’t be based on content of the speech • Must serve a governmental interest (such as maintaining flow of traffic) • Must leave open another channel of expression • Commercial speech (panhandling) has less protection than other types of speech

20. Gang Activities • Criminal Law Responses to Gang Activity • Statutes criminalizing participation in gangs • Statutes imposing stiffer penalties for crimes committed by gang members • Criminalizing behavior encouraging minors to join gangs • Applying organized crime statutes to gangs. • Statutes punishing parents for their children’s gang activities • Ordinances banning gang members from certain places

21. Discussion Activity Watch the video below What are your thoughts of this program? Do you feel these are appropriate measures to combat gang activity? What impact may this have on deterring kids from engaging in gang activity? http://www.cbsnews.com/8301-18563_162-57469055/ex-los-angeles-gang-members-work-to-stop-violence/

22. Case: City of Chicago v. Morales • Facts: City ordinance prohibits criminal street gang members from loitering with one another or others in a public place. • Issue: Was the ordinance void for vagueness? • Holding: Court struck down the law as too broad and too vague. It indicated that statutes could address the gang behavior it wanted to address, but that this statute was not drafted in such a way that it met constitutional muster (due process issues).

23. Gang Activity • Civil Law Responses to Gang Activity • Public nuisance injunctions • E.g., People ex rel. Gallo v. Acuna • Civil Gang injunctions • Noncriminal lawsuits brought by cities seeking restraining orders to bar gang members from gang activities which can include, interacting with one another, entering specific sections of the city and wearing gang colors • Research • Maxson, Hennigan and Sloan: positive evidence of short term effects in the targeted area but no significant changes in intermediate or long term outcomes • Grogger: in the first year after the injunctions, violent crime decreased

24. Case: City of St. Paul v. East Side Boys and Selby Sliders • Facts: City injunction bans gang members from attending the City’s public event • Issue: Should members of the gang be banned from attending Rondo Days celebration? • Holding: The Civil Gang Injunction Statute authorizes a city attorney, county attorney or the attorney general to commence a civil action against criminal gangs to enjoin criminal gang activity.

25. Violent Video Games April 20, 1999, students Eric Harris and Dylan Klebold, two students at Columbine High School near Littleton, Colorado, murdered twelve students and one teacher, wounded twenty-four others, and then committed suicide. A number of municipal ordinances banning violent video games from arcades followed, because, it was contended, playing the games can cause violent behavior in youths who watch them.

26. Case: Interactive Digital Case: Software Co. v. St. Louis County • Facts: Ordinance requires owners of arcades to place video games known to be harmful to minors apart from others. Also unlawful to rent a sell a video game known to be harmful to minors to a minor without parental consent. • Issue: Can counties ban juveniles from playing violent video games? • Holding: The Court finds, based on the evidence in the record, that plaintiffs failed to show that St. Louis County Ordinance is unconstitutional and that they are entitled to judgment as a matter of law.

27. Victimless Crimes • Definition for this text • Crimes committed by consenting adults (minors are not included in definition) who do not see themselves as victims of their behavior • Controversy • Public Policy v. Individual Privacy • Rift between those who believe criminal law should enforce morals and those who believe these behaviors are none of criminal law’s business • Highlighted in debate between Mill and Stephan

28. Prostitution and Solicitation Programs Targeting Johns: -Car forfeiture -Driver’s license revocation -Publish name in various media • Prostitution • Historically reserved for the act of selling sexual intercourse for money (not buying) • Modern • Buyers and sellers • Men and women • Soliciting prostitution treated as and defined as prostitution • Pimping, pandering, providing place for prostitution included • Misdemeanor offenses generally (unless violence involved)

29. Case: Commonwealth v. An Unnamed Defendant • Facts: Prostitute was charged and convicted. John was not arrested or charged. • Issue: Is it constitutional to arrest only prostitutes and not Johns? • Holding: Court held that once a defendant has raised a reasonable inference of selective prosecution, the Commonwealth must rebut that inference or suffer dismissal of the underlying complaint.

30. Discussion Activity Review the link below and then discuss whether or not you believe prostitution is a victimless crime? What other criminal behaviors does engaging in prostitution enhance the risk for? http://crime.about.com/od/prostitution/a/prostitution.htm

31. Discussion Activity Review the prostitution laws in your state. What does your state do to target Johns? Do you think this deters people from engaging in prostitution? What is the punishment for the prostitute or the John in your state?