Vagrancy and Disorderly Conduct Research Paper

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Vagrancy and disorderly conduct are examples of a category of legal prohibitions commonly referred to as public order offenses. Such offenses share a number of general characteristics. They usually prohibit relatively trivial types of public misconduct such as, for example, aggressive panhandling, public drinking, or loitering in the vicinity of an automated teller machine. In the main, they provide for comparatively low-level punishments. In addition, police commonly exercise a considerable degree of discretion in the enforcement of public order laws. This is partly because such laws are often not formally enforced even when they are clearly violated. Instead, these laws are frequently invoked by police informally, to require offenders to put an end to behaviors seen to threaten the public peace. Public order offenses thus provide police with the legal authority to discharge their ‘‘order maintenance’’ or ‘‘peacekeeping’’ responsibilities, meaning those responsibilities associated with helping to maintain order in public places, as opposed to enforcing the criminal law.

It is impossible to provide a precise definition of either vagrancy or disorderly conduct. These offenses have been described differently at different times and the laws treating them have varied considerably from state to state. Historically, however, state legislatures and municipal authorities in the United States tended to define vagrancy and disorderly conduct very broadly so that these offenses operated, in effect, as catch-all provisions that subjected a wide variety of public behaviors and conditions to police authority. Vagrancy laws were often drafted not to prohibit particular acts of public misconduct, but instead to criminalize statuses—such as being a rogue, a known criminal, a vagabond, a loiterer, a habitual loafer, or a common thief. Thirty categories of vagrancy were identified in 1962 as then existing in laws to be found throughout the United States (Note). Similarly, disorderly conduct at around this time was in some places defined simply as being a vagrant. Even when disorderly conduct laws prohibited behaviors, rather than statuses, moreover, these behaviors were often defined very generally to include any conduct that tended to disturb the safety, health, or morals of others.

During the period from the 1950s into the 1970s, public order laws of this type were increasingly seen to pose significant problems. They imposed criminal sanctions on conditions or behaviors—like poverty or alcohol abuse— that were viewed by many as social or medical problems not properly within the ambit of criminal law. In addition, the breadth and vagueness of such laws conferred considerable discretion on police as to how they should be enforced— discretion that was frequently exercised in ways that discriminated against racial or ethnic minorities, as well as the poor. Because the penalties for public order offenses were often relatively trivial, moreover, the real punishment for such infractions was often simply the inconvenience and embarrassment of an arrest—a punishment that could be meted out solely at the hands of police. The criminal courts charged with handling prosecutions involving these low-level offenses were also poorly run and often failed to afford defendants even the basic essentials of a fair adjudication. Philadelphia magistrates’ courts in the early 1950s, for example, routinely handled fifty or more cases in fifteen minutes or less. Mostly uncounseled defendants were rarely even informed of the charges, nor was there even a pretense of proving these charges by competent evidence.

The concerns of this period produced calls for legislative reform and some movement in this direction. Moreover, a rise in crime in the 1960s coupled with other factors, including a growing emphasis among police on criminal investigation, led many police departments in the 1960s and 1970s to de-emphasize order maintenance and to focus resources on the enforcement of laws against serious crime. Perhaps the most significant change in the area of public order law and its administration during this period, however, came as a result of federal constitutional decisions. Supreme Court cases extended the right to counsel and jury trial in the prosecution of many petty offenses. The Court rejected status as a basis for the imposition of criminal sanctions. Most significantly, many public order laws were invalidated as unconstitutionally vague or overboard.

This research paper briefly describes the history of the broad ‘‘vagrancy-style’’ public order offenses invalidated during the 1960s and 1970s. It also discusses the Supreme Court cases that dramatically changed public order law and its administration during this period. Finally, the paper recounts how a growing emphasis on community policing and the quality of life in public spaces in the 1980s and 1990s sparked renewed interest in order maintenance by police. It describes how state legislatures and municipalities in the 1990s attempted to enact constitutionally acceptable public order laws to address the concerns with this class of offenses while at the same time affording police legitimate authority to be used in the amelioration of problems of crime and disorder.

History

The roots of laws against vagrancy and disorderly conduct in the United States can be traced to England. The breakup of feudal estates in fourteenth-century England, combined with severe regional labor shortages caused by the Black Death, resulted in the enactment of the Statute of Labourers in England (23 Edw. 3, New Statute, c. 1 (1349) (repealed) and 25 Edw. 3, Stat. 1, c. 1 (1350) (repealed)). The Statute of Labourers attempted to control the wandering of former serfs by requiring able-bodied persons without means of support to work for fixed wages and to refrain from traveling about the country to find better wages or to avoid offers of work. Originally aimed at enforcing labor, the English vagrancy laws came to be seen as serving other interests in the sixteenth and seventeenth centuries. Various conditions in England during this period, including the destruction of the monasteries during the reign of Henry VIII and the enactment of the enclosure acts (see Ledwith v. Roberts, (1936) 3 All E.R. 570, 585, 594 (C.A.)), which converted agricultural land into pasture for sheep, gave rise to a mass of people who wandered the country without means of livelihood. The vagrancy laws at this time were seen to protect local residents from the perceived potential criminality of vagrants and to safeguard parishes and municipalities from the financial burden of caring for nonresidents.

These policies underlying the English vagrancy laws were transplanted to colonial America. Under the Articles of Confederation, ‘‘paupers’’ and ‘‘vagabonds’’ were excepted from the guarantee of free movement between the states (art. 4). At the time of the founding, state and local governments customarily criminalized various forms of vagrancy, including loitering in public places. During the nineteenth century, the Supreme Court observed that it is ‘‘as competent and as necessary for a State to provide precautionary measures against the moral pestilence of paupers, vagabonds, and possibly convicts, as it is to guard against the physical pestilence. . . .’’ (Mayor of City of New York v. Miln, 36 U.S. (11 Pet.) 102, 143 (1837)). Until the mid-1960s, most states had broad vagrancy, loitering, and disorderly conduct laws. Vagrancy-style laws were employed at various times and in varying ways throughout American history to control the migration of the unemployed. They were also used after the Civil War to keep former slaves in conditions of servitude. During the Jim Crow era, vagrancy laws criminalizing the status of being unemployed were sometimes invoked to pressure African Americans to enter into unfavorable labor contracts.

Public order laws were rarely challenged in the courts until the 1960s, when attorneys became more widely available to the indigent following the Supreme Court’s decision in Gideon v. Wainwright, 372 U.S. 335 (1963), which held that felony defendants unable to afford an attorney must be provided with one at state expense. A Jacksonville, Florida, ordinance reviewed by the Supreme Court in Papachristou v. Jacksonville, 405 U.S. 156 (1972), was characteristic of the vagrancy laws to be found in many localities during the period leading into the mid-1960s:

Rogues and vagabonds, or dissolute persons who go about begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children shall be deemed vagrants. . . . (156 n.1)

Typical disorderly conduct laws of the period often contained general provisions prohibiting acts likely ‘‘to unreasonably disturb or alarm the public’’ (Garner v. Louisiana, 368 U.S. 157, 165 (1961)), as well as provisions aimed at ‘‘breach[es] of the peace,. . .riotous or disorderly conduct, open obscenity, public drunkenness or any other conduct grossly indecent or dangerous to. . .citizens’’ (Barr v. City of Columbia, 378 U.S. 146, 148 n.2 (1964)).

Such laws were sometimes said to assist in crime prevention by authorizing police to intervene early in suspicious circumstances, before people had the opportunity to engage in serious criminal activity. Because these laws were vague in terminology and often did not predicate arrest on the commission of any specific act, however, they were also said to invite arbitrary and discriminatory enforcement. Critics charged that public order laws were sometimes used for purposes like breaking strikes or ‘‘rounding up’’ ostensible suspects (for whom there was no individualized suspicion) when a crime had been committed. Caleb Foote documented how these laws were employed by Philadelphia police in the 1950s to ‘‘clean up’’ city neighborhoods by summarily removing prostitutes, drunks, and other ‘‘undesirables’’ from public places (Foote). In addition, public order laws were sometimes improperly invoked by police during civil rights struggles in the South. Indeed, the immediate impetus for the Supreme Court’s consideration of cases involving public order laws during the 1960s was often the use of such laws against participants in peaceful sit-ins and civil rights demonstrations.

Constitutional Considerations

A number of Supreme Court cases decided in the 1960s and 1970s have affected the scope and administration of public order laws. Argersinger v. Hamlin, 407 U.S. 25 (1972), for instance, held that absent a waiver, no person may be imprisoned for an offense, even if it is classified as a misdemeanor or petty offense, unless represented by counsel. The Court held in Baldwin v. New York, 399 U.S. 66 (1970), that the right to jury trial applies to any offense for which imprisonment for more than six months is authorized. Though these cases by no means resolved all problems of fairness in the administration of public order laws, they did dramatically transform and improve procedure in the lower criminal courts, where public order offenses are generally prosecuted.

In 1962, the Court decided a case that had far-reaching implications for the scope of vagrancy-style laws. In Robinson v. California, 370 U.S. 660 (1962), the Court invalidated a state law that made it a crime to be a narcotics addict, stating that it violated the Eighth Amendment’s prohibition against cruel and unusual punishment. In a later case, a plurality of the Court interpreted Robinson to mean that the punishment of ‘‘mere status’’ is unconstitutional: ‘‘[C]riminal penalties may be inflicted only if the accused has committed some act . . . which society has an interest in preventing’’ (Powell v. Texas, 392 U.S. 514, 533 (1968)). Though Robinson did not arise under a vagrancy or disorderly conduct law, its holding cast serious doubt on the constitutional validity of any public order law that provided for punishment of one’s status as a common drunkard, loiterer, or the like, without proof of the commission of some criminal act.

In cases like Gooding v. Wilson, 405 U.S. 518 (1972), the Court next drew into question those public order laws with potential application to protected First Amendment activity. In Gooding, the Court invoked its overbreadth doctrine to invalidate a statute providing for the punishment of anyone ‘‘who shall, without provocation, use to or of another, and in his presence . . . opprobrious words or abusive language, tending to cause a breach of the peace’’ (405 U.S. at 519). In its traditional and most common form, the overbreadth doctrine permits individuals in certain circumstances to challenge a law, even when their own conduct might validly be prohibited under it, when the law could potentially reach activity that falls within the protections afforded to freedom of speech. The theory underlying this doctrine is that ‘‘overbroad’’ laws—laws reaching conduct legitimately prohibited by legislatures, but also constitutionally protected activity— should not be permitted to stand, lest they chill conduct that is deserving of constitutional protection. This doctrine led to the invalidation of a number of broadly worded laws prohibiting breaches of the peace in the 1960s and 1970s.

The Court did not directly address the constitutional status of a vagrancy law until 1972. In Papachristou, the Court invalidated Jacksonville’s vagrancy ordinance as ‘‘void for vagueness.’’ The Court held that the law violated the Constitution’s due process guarantee by failing to give ordinary persons fair notice that contemplated conduct was forbidden and by encouraging arbitrary and erratic arrests and convictions. Writing for a unanimous Court, Justice William O. Douglas placed particular stress on the argument that an ‘‘all-inclusive and generalized’’ list of crimes that included such things as wandering or strolling about from place to place without lawful purpose encouraged discriminatory law enforcement (405 U.S. 166). In the Court’s words:

The implicit presumption in these generalized vagrancy standards—that crime is being nipped in the bud— is too extravagant to deserve extended treatment. Of course, vagrancy statutes are useful to the police. Of course, they are nets making easy the roundup of socalled undesirables. But the rule of law implies equality and justice in its application. Vagrancy laws of the Jacksonville type teach that the scales of justice are so tipped that even-handed administration of the law is not possible. (405 U.S. 171)

Though it was not a basis for the Court’s holding, the Papachristou opinion also observed that the Florida ordinance’s classifications, which originated in the early English poor laws, were archaic: ‘‘The Jacksonville ordinance makes criminal activities which by modern standards are normally innocent’’ (405 U.S. 163).

The void-for-vagueness doctrine invoked by the Court in Papachristou was the basis for many lower federal and state court decisions invalidating vagrancy and disorderly conduct laws, both immediately before and after the Court’s decision in that case. After the ruling in Papachristou, many states repealed their vagrancy laws, often replacing such elements of vagrancy as being a common prostitute or a habitual drunkard with separate, conduct-based offenses dealing with prostitution, public intoxication, and the like. Disorderly conduct laws remained common, but in many places were substantially revised, often along the lines suggested in the American Law Institute’s Model Penal Code. The revisions aimed to make disorderly conduct laws more precise and to hinge punishment on the commission of specific acts, rather than on statuses.

Papachristou and related cases were extremely important to the legal authority of police to maintain order in public places. Collectively, these cases established that police could no longer enforce public order laws so vague that they in effect empowered police to devise their own standards of public decorum. Public order laws were required not only to deal with prohibited acts, rather than statuses, but to do so in language of adequate definiteness—in language clear enough to constrain the opportunity for arbitrariness on the part of local law enforcement.

Significantly, however, Papachristou did not articulate how far courts should go in demanding specificity in public order laws. Within months of the Papachristou decision, the Court noted in Grayned v. City of Rockford, 408 U.S. 104, 108 (1972), that courts could not require mathematical certainty in the language of such laws and that the exercise of some degree of police judgment in the employment of public order laws is necessary. Defining limits on the circumstances in which courts would entertain wholesale challenges to laws regulating trivial forms of public misconduct, however, was not of pressing concern by the time Papachristou was decided. Police had already shifted their attention away from order maintenance to focus on serious crime. Patrol by automobile, rapid response to calls for service, and the retrospective investigation of serious offenses—none of which involves police in the routine employment of public order laws— had become the principal operating strategies of police departments. It was not until the 1980s and 1990s that changes in policing philosophy caused many police departments to afford order maintenance a higher priority. Accordingly, it was at this time that the Papachristou reforms came up for closer reexamination.

Community Policing and Public Order Law

The emergence of community policing in the 1980s produced renewed interest in order maintenance by police. Community policing is a policing philosophy that grew out of perceived inadequacies in earlier approaches to local law enforcement. Broadly, community policing holds that police can more effectively address crime and disorder when they develop working relationships with people in the communities they police. It draws upon the idea of community-police reciprocity ‘‘to redefine the overall purposes of policing, to alter the principal operating programs and technologies on which the police have relied, and to found the legitimacy and popularity of policing on new grounds’’ (Moore). Among other characteristics, police in a community policing regime focus more attention on crime prevention and the quality of life in local neighborhoods. They may place emphasis on foot patrols and community organizing. They are more open to community-nominated problems and priorities.

Hundreds of police departments across the country began experimenting with community policing in the 1980s and 1990s. This provoked new interest in order maintenance in part because police learned from consultation with community members that people were extremely concerned with ‘‘low-level’’ matters like chronic vandalism, loitering gang members, and unsafe parks. Perhaps the most important ingredient in the revival of interest in order maintenance, however, was a 1982 essay by James Q. Wilson and George Kelling entitled ‘‘Broken Windows.’’ ‘‘Broken Windows’’ argued that the narrow focus of many police departments on the investigation of serious crime had resulted in the atrophy of a vital police role in promoting the quality of life in local neighborhoods. The fear endemic in many big-city neighborhoods in the early 1980s, Wilson and Kelling argued, stemmed as much from fear of disorderly conditions as from a realistic appraisal of residents’ likelihood of being victimized by serious crime. Residents’ fear of disorder should nevertheless be addressed, they contended, because such fear weakens a neighborhood’s informal social control mechanisms by causing fearful residents to retreat from public places and from intervention in the matters occurring there. This abandonment of public spaces, Wilson and Kelling argued, damages residents’ quality of life and even renders neighborhoods more vulnerable to criminal invasion. Wilson and Kelling urged that patrol officers should be deployed on foot, at least in those neighborhoods where they might help strengthen informal social ties, that they should be significantly neighborhood-oriented, and, in particular, that patrol officers should attend to matters like abandoned property, accumulating litter, inebriates slumped on neighborhood sidewalks, and teenagers loitering or fighting in front of stores.

‘‘Broken Windows’’ ’s critique of dominant trends in American policing that had deemphasized the order maintenance function was extraordinarily influential. It helped to stimulate the community policing movement and to revive interest in many localities in addressing minor disorder. Beginning in the early 1990s, municipalities across the country began to enact ordinances or take other legal steps to ameliorate public order problems. Juvenile curfews, for instance, became the norm in major American cities (Ruefle and Reynolds). Anti-drug and prostitution loitering ordinances were enacted in many places, as were laws directed at aggressive panhandling, loitering in the vicinity of automatic teller machines, automobile cruising, and the like. These new laws were generally much more specific than the broad public order laws invalidated during the 1960s and 1970s. Significantly, they also received critical support in several places from African Americans who historically had been principal targets of repressive order maintenance policing but who now supported the measured use of public order laws by politically accountable police to address serious problems of crime and disorder (Kahan and Meares). These developments raised the question of how courts would treat this new generation of public order laws. Several federal appellate courts rejected vagueness and other constitutional challenges to juvenile curfews in the 1990s, though in some places courts did invalidate such laws. Ordinances prohibiting automobile cruising and aggressive panhandling were generally upheld in the face of constitutional attack. Courts split, however, on the constitutionality of drug and prostitution loitering ordinances, with a number of judges viewing such laws as overly vague or overbroad.

The Supreme Court addressed the constitutionality of one of these new public order laws in Chicago v. Morales, 527 U.S. 41 (1999). The case involved a Chicago, Illinois, ordinance that authorized police to order any group of two or more people found loitering in public places to move along on pain of arrest, so long as at least one of the group was reasonably believed to be a member of a criminal street gang. The ordinance was enacted in 1992, during a period of extraordinary gang violence in Chicago. The Chicago City Council issued findings that were included in the text of the law to explain the reasons for its enactment. These findings asserted, among other things, that street gangs had ‘‘taken over’’ entire neighborhoods in Chicago by intimidating residents from using public places. The gang loitering law was directed at regaining control of these public areas.

Morales produced six different opinions. The lead opinion, by Justice John Paul Stevens, was joined in full by only two Justices and in part by three others. The Morales majority concluded, in an extremely narrow holding, that the Chicago ordinance’s definition of loitering (‘‘to remain in any one place with no apparent purpose’’) was unconstitutionally vague in that it failed to set sufficiently specific limitations on the enforcement discretion of Chicago police (527 U.S. at 60–65). A plurality composed of Justices Stevens, Ruth Bader Ginsburg, and David Souter went further to opine that the freedom to loiter for innocent purposes is an attribute of personal liberty protected by the Constitution’s due process clause. These three Justices in effect concluded that loitering is a constitutionally protected activity and that there are thus limits on the ability of localities to regulate it.

On the whole, however, the Morales opinions suggested a willingness on the part of the Court to uphold many laws regulating the use of public spaces, including laws directed at activities like loitering. Three Justices dissented in Morales and concluded that Chicago’s gang loitering law was plainly constitutional. Significantly, even the majority opinion concluded that loitering by gang members could be regulated. Indeed, this opinion asserted that an ordinance limited to loitering by gang members that had an apparently harmful purpose would satisfy the vagueness doctrine. In an opinion concurring in part and concurring in the judgment, Justice Sandra Day O’Connor, joined by Justice Stephen Breyer, suggested several additional ways in which Chicago might constitutionally prohibit gang members from loitering in public places so as to intimidate others from using them.

Morales thus offered municipalities room in which to continue to experiment with affording police new authority to address public order concerns. Indeed, in the wake of the Morales decision, the Chicago City Council enacted a new gang loitering ordinance on the lines suggested by the majority opinion.

This is not to conclude, however, that all problems in the administration of public order laws evaporated once state and local legislatures narrowed the scope of such laws. In fact, the new public order laws of the 1990s raised many of the same concerns associated with earlier vagrancy and disorderly conduct laws. These concerns sometimes centered on whether the criminal law was the most effective mechanism for dealing with specific public order problems. Many communities during this period successfully addressed some such problems with programs that involved noncriminal sanctions or that combined law enforcement with various forms of social service.

Perhaps the most consistent area of concern, however, involved the ways in which police exercise discretion in order maintenance. In many places, a new emphasis on public order in the 1990s did help renew public confidence in the ability of police to contribute to the well-being of the neighborhoods they serve. Elsewhere, however, police initiatives directed at crime and disorder provoked legitimate anxiety about police intrusiveness, particularly as directed at minorities and the homeless.

At the same time, it became increasingly evident during this decade that the judicial invalidation of reasonably specific public order laws was not the answer to police misuse of such laws. Because police decide when, where, and whether to enforce public order laws, they exercise considerable discretion in this area even when public order laws prohibit narrowly defined behaviors, and even when such laws are very precise. The proper exercise of this discretion, however, can be very beneficial to communities and need not lead to police abuse.

In the late 1990s, increased attention came to be paid to ways in which communities might exercise better political and administrative control over the performance of police order maintenance responsibilities. There was experimentation with civilian complaint review boards and early warning systems, both designed in part to alert police administrators to problem officers who might be misusing their authority. Attention was paid to guidelines that might inform police in the exercise of their discretion, as well as to the role elected officials might play in overseeing police departments. Mechanisms for the political and administrative constraint of police were still developing at the end of the decade. Commentators argued, however, that changes in political conditions since the 1960s related to the growing political power of minority communities rendered such mechanisms viable and, further, that such mechanisms constituted more reliable controls on police discretion than the search by judges for textural precision in public order laws (Kahan and Meares).

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