Chapter Twelve
Crimes Against Public
Order and Morals
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 understand that the broken windows
theory claims that quality of life crimes are
linked to serious crime.
Learning Objectives
• To appreciate that the widespread consensus among all
classes, races, and communities that “street people’s” and
“street gangs’” bad behavior 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 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
law’s business.
Disorderly conduct crimes
• Crimes against public order and morals
• Minor crimes, minor punishment
• Important
– Represent large portion of criminal justice system
– Affect large number of defendants
– Influence view of public justice by citizenry
Disorderly conduct crimes
(continued)
• Individual:
– Actual disorderly conduct
• Fighting in public, making unreasonable noise
– Constructive disorderly conduct
• Conduct that tends to provoke or excite others to break
the peace
Disorderly conduct crimes
(continued)
• 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
Disorderly conduct crimes
(continued)
• Modern group disorderly conduct
– Riot still exists
– Riot is a felony under modern law
Quality-of-life crimes
• Crimes of bad manners in public
• People across broad social settings 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 individual’s liberty without due
process
• Petty crimes aren’t just bothering law-abiding
citizens (Wilson and Kelling)…
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 and serious crime
• Sampson and Raudenbush:
– disorder and serious crimes have common causes, but they
don’t cause each other—at least not directly
Quality of Life Crimes (continued)
• 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
Quality of life crimes (continued)
• 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
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
Vagrancy and Loitering Laws
(continued)
• Kolender v. Lawson (1983)
– Court imposed constitutional restrictions on loitering laws
– Struck down statute for wandering the streets and failing to
produce credible identification
– 1980s 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
Vagrancy and loitering laws
(continued)
• 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
Vagrancy and loitering laws
(continued)
• 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”
Joyce v. City and County
of San Francisco (1994)
Summary of case 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)
– Aren’t able to show denial of equal protection and
that the intent of the government is to discriminate
and haven’t been able to show that police violated
due process in implementing the law
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
Panhandling (continued)
• 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 (streets, sidewalks and parks)
• 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 other channels of expression
• Commercial speech (panhandling) has less protection
than other types of speech
Gresham v. Peterson (2000)
Summary of case holding
• Court denied Peterson’s petition for injunction
limiting the enforcement of the statute banning
aggressive panhandling.
• Statute was not unconstitutionally vague
• Time, manner, and place restrictions were
content neutral (if statute narrowly construed),
were tied to state’s legitimate interest, and
allowed for adequate alternatives to Peterson to
engage in asking for money.
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
City of Chicago v. Morales (1999)
Summary of case 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…void for vagueness).
• Too much discretion for the police, too little
notice to the citizenry
Gang Activity
• Civil Law Responses to Gang Activity
– Public nuisance injunctions
– E.g., People ex rel. Gallo v. Acuna (1997)
– 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
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
Prostitution and Solicitation
• 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)