The recent surge in scholarship on the history of modern US policing has produced two very different depictions of the 1960s. One set of histories searches the 1960s for the roots of America's modern “carceral state.” This literature finds that during the 1960s the federal government introduced many of the ideologies and state relationships that in later decades transformed police officers into front-line agents of racialized mass incarceration. These studies highlight how during the late 1960s Congress and the White House established many of the rationales and mechanisms for federal funding to big-city police forces. For instance, President Lyndon B. Johnson and liberals in Congress believed that police professionalization could produce equitable law enforcement, and on those terms they began funneling money to police departments through new agencies like the Law Enforcement Assistance Administration. Federal aid accounted for only a sliver of big-city police budgets through the 1970s, but the new funding mechanisms set the precedents necessary for the explosion in federal support during the 1980s and especially the 1990s (e.g., Thompson Reference Thompson2010; Murakawa Reference Murakawa2014; Hinton Reference Hinton2016).
Another body of scholarship has examined policing during the 1960s on its own terms and from that perspective has characterized the decade as a period in which a century-old policing system collapsed. This literature emphasizes that in a little over a decade a reform campaign swept aside approaches to policing and understandings of crime that had underpinned law enforcement since the nineteenth century. As Risa Goluboff's Vagrant Nation explains, police reformers during the 1960s believed that achieving equitable law enforcement would require a two-pronged effort. Reformers sought to remake local institutions—especially police departments—to rein in individual police who disregarded the law. At the same time, reformers worked to rewrite laws so that legal codes did not license discriminatory policing (71–72).
In my own examination of institutional reform, I have noted that mid-century reformers often framed unjust law enforcement as an issue of police discretion. Because so many constituencies could interpret their conflicts with police as problems of discretion, broad and unlikely coalitions emerged across the North and West to remake urban police departments (Agee Reference Agee2014; Stewart-Winter Reference Stewart-Winter2016; Schneider Reference Schneider2017). These campaigns broke apart the networks of police graft that sustained old political machines, reoriented popular understanding of crime away from questions of morals and toward the concept of “harm,” and introduced militarized police tactics to low-income neighborhoods (Agee Reference Agee2014; Simon Reference Simon, Ben, Beatrice, Ian and Jonny2016).
Vagrant Nation blazes a new trail in the 1960s policing literature by exploring parallel reform efforts along the legal track. Goluboff identifies an expansive “vagrancy law regime” in mid-twentieth-century America. Indeed, she shows how vagrancy laws licensed order-maintenance policing against a vast range of marginalized Americans. Goluboff then goes on to uncover the surprising, sprawling, and ultimately successful legal campaign that arose during the 1960s to eliminate vagrancy law as a catch-all detention rationale (4).
In this essay, I will explain how we can now begin synthesizing these various historiographical strands. I will first illustrate how the legal efforts to undo the vagrancy law regime during the 1960s influenced and opened opportunities for the institutional reform campaigns of the same period. I will then show how scholars can reconsider the relationship between the collapse of the old policing order during the 1960s and the explosion in police power at the end of the twentieth century. The legal terms upon which the courts and legislatures dismantled the “vagrancy law regime,” I will argue, catalyzed the development of the “carceral state.”
The Collapse of the Old Policing Order
Entering the post–World War II period, urban America's police served the same basic functions that law enforcement officers had been following since the mid-nineteenth century. They engaged in order-maintenance policing by enforcing myriad racial, sexual, ethnic, and class hierarchies. At the same time, they served as electioneering agents for their local political machines. In this role, police officers regulated the vote and funneled graft from the so-called underworld to their machine sponsors. Policy makers reinforced the venal relationship between the police and the party machine by assigning most patrol functions to the district stations and making police district lines coterminous to machine ward boundaries (Fogelson Reference Fogelson1977).
Government officials fostered both the order-maintenance and the electioneering functions of the police by granting officers tremendous discretion on the beat. That arrangement produced a law enforcement system that was simultaneously expansive and opaque. Because police practices were determined at the district level (or even on individual beats) and because US cities were spatially segregated, urban residents rarely saw police practices outside their own neighborhoods (Agee Reference Agee2014; Simon Reference Simon, Ben, Beatrice, Ian and Jonny2016).
Vagrancy statutes, Vagrant Nation establishes, were the legal cornerstone of this discretionary regime. Police used vagrancy laws to regulate great swaths of the citizenry, and by the 1950s the nation's police were making hundreds of thousands of vagrancy-type arrests every year (86). Vagrancy law's breadth further shrouded police activities, allowing the state to regulate a range of populations and activities without ever having to publicly identify those bodies and behaviors (46). Often, this obfuscation was intentional. For instance, city officials wanted to regulate gay men, but the officials often did not want to alert the nation that their cities maintained large gay populations; doing so might attract even more gay migrants. Similarly, police and city officials wished to regulate sexually explicit materials in ways that did not advertise those works and stimulate consumer demand (Agee Reference Agee2014, 75, 112).
The first major assault on vagrancy law sprang from San Francisco, and the campaign ultimately led to the repeal of California's vagrancy statute in 1961. Goluboff shows that the California campaign presaged both the strengths and the limitations of the later national repeal effort. In San Francisco (and California more generally), police officers subjected a vast range of marginalized groups—including African Americans, Mexican Americans, Beats, political radicals, and gays and lesbians—to the vagrancy law regime. Unexpectedly, the breadth of vagrancy law's application spurred an equally broad police reform campaign. Activists and spokespersons from these various marginalized groups found common cause in the issue of vagrancy law, and collectively they pressured San Francisco's Assemblyman John O'Connell to recognize vagrancy law as a source of police injustice. With this coalition at his back, O'Connell submitted a vagrancy law repeal bill and shepherded it through the state legislature (65–71). A similar dynamic, Goluboff illustrates, later played out on the national level. Lawyers for an array of marginalized peoples—including political radicals, sexual minorities, people of color, bohemians, and the poor—all began to see vagrancy law as a common litigation target, and these attorneys strengthened their vagrancy statute challenges by borrowing from one another's courtroom arguments and judicial precedents. The 1972 Papachristou decision that finally voided vagrancy law, Goluboff concludes, bore “the imprint of the cumulative and overlapping, movements, campaigns, and litigation efforts” (323).
And yet, Goluboff shows, the California campaign was also significant because the state's vagrancy law repeal came with many of the same qualifications that would later appear on the national stage. O'Connell's bill landed on the desk of Governor Edmund “Pat” Brown (the father of California's current governor), and Goluboff notes that procedural concerns likely motivated Brown to sign it. The California State Supreme Court, after all, had recently struck down on vagueness grounds the common drunkard clause of the state's vagrancy code, and Brown could recognize that the entire vagrancy statute was now vulnerable to a similar challenge. Still, Brown was not willing to accept this procedural critique until O'Connell added language replacing the state's status-based vagrancy statute with a new conduct-based “suspicious loitering” law (70–71). The US Supreme Court decided Papachristou on the same conditions. The justices voided vagrancy on a procedural “vagueness” rationale (rather a determination of substantive rights), and the Court only took that step after first legitimizing criminal loitering (i.e., “stop and frisk”) statutes in Terry v. Ohio (1968).
Goluboff finishes her discussion of California's vagrancy law repeal by considering the split reaction of Ernest Besig, the San-Francisco-based director of the Northern California American Civil Liberties Union. Besig hailed the elimination of California's vagrancy statute as “the most important civil liberties legislation adopted by the California legislature in [his] memory” (42). Yet he also worried that the suspicious loitering statute handed back to the police much of their lost authority. Besig understood that the vagrancy-for-loitering exchange would only constrict police discretion if the institutional frameworks surrounding the police forced patrol officers to define suspicious activities narrowly (71–72). By rooting Goluboff's discussion of California's vagrancy law repeal campaign within San Francisco's history of police reform, we can better understand the political motivations behind California's repeal decision and better appreciate why Besig worried about the prospects for justice in California's post-vagrancy-law era.
During the 1950s and 1960s, three new police reform constituencies were emerging in San Francisco and cities elsewhere in the United States. First, downtown business spokespersons in cities as varied as Boston, Los Angeles, Denver, Atlanta, Oakland, and Chicago began demanding police professionalization. These big-business leaders sought to rebuild their downtowns with federal redevelopment grants, and they regarded the existing graft-fed political machines as obstacles to that agenda. Downtown interests initiated professionalization campaigns against the police graft that the old machines depended on, seeking to constrict the discretion that police officers used to collect extortion payments. For instance, when professionalizers took power in San Francisco, one of their first reforms was to eliminate the San Francisco Police Department's “$1,000 vag” arrests. An informal practice without basis in the law, a “$1,000 vag” arrest attached a $1,000 bail minimum to a standard vagrancy charge; $1,000 vag arrests were a feature of San Francisco's traditional venal police system because they funneled money into the local bail bond industry, a key player in San Francisco's graft network (Agee Reference Agee2014, 32, 20). But these downtown police professionalizers were often quick to defend the vagrancy statute itself; their goal was to eliminate the discretion sustaining the machine, not to upset the discretion police used to maintain order.
Although the downtown-led professionalization campaigns did not seek to expand pluralism, their efforts allowed a range of marginalized groups to open a second front in the police reform campaign. Prior to the late 1950s, African Americans, Latinos, gays and lesbians, bohemians, and the poor had often struggled to receive mainstream recognition for their protests against police abuse. Government officials repeatedly denied these groups a voice in political debate on the rationale that they possessed racial, cultural, and sexual perspectives that threatened the civic order. But the police professionalization discussions enabled these groups to characterize their problems with police as administrative problems of police discretion rather than issues of expanded rights. In San Francisco, for instance, Beat bohemians and their supporters initially downplayed the police's regulation of gender-role experimentation, and instead criticized police for using their discretion to mistakenly harass and detain non-bohemians (Agee Reference Agee2014, 57; California State Assembly 1958, 108).Footnote 1
Young, white-collar, urban liberals then emerged as a third police reform constituency. Advancing a new cosmopolitan liberal politics, these young professionals threw qualified support behind both the downtown police professionalization campaigns and the marginalized groups' protests against police repression. Downtown redevelopment programs of the 1950s were drawing young professionals back into America's cities (Osman Reference Osman2011). These white-collar workers frequently arrived without families and expressed a cosmopolitan liberal interest in creating cities that were physically safe but culturally exciting. The marginalized groups' rights campaigns often sought to expand pluralism in ways that challenged the prerogatives of white, middle-class heterosexuals, but in cities including Philadelphia, Seattle, St. Louis, Denver, Los Angeles, Chicago, San Francisco, and New York City, cosmopolitan liberals recognized that pluralism with limits could serve their own interests (Agee Reference Agee, Ben, Beatrice, Ian and Jonny2016). On these terms, cosmopolitan liberals engaged with the question that Goluboff finds at the core of the vagrancy repeal movement: “Where did the need for security against danger end and the need for tolerance of pluralism begin?” (336).
Cosmopolitan liberals answered that question with a racialized harm principle. They insisted that police should not supervise activities that did not materially or physically harm others, and they increasingly characterized cultural and sexual pluralism among whites as “harmless.”Footnote 2 At the same time, white cosmopolitan liberals pathologized black culture as violent and therefore did not view black transgressions of gender and sexual norms as innocuous. Instead, they drew a cultural connection between the supposed “easy virtue” and “easy violence” of black citizens (Agee Reference Agee2014, 157). Cosmopolitan liberals thus tended toward the view that the state should curb police discretion over the cultural and sexual expression of whites while maintaining broadly sanctioned police supervision over black life.
These three police reform constituencies—downtown spokespersons, rights activists, and cosmopolitan liberals—played instrumental roles in California's decision to trade common vagrancy for criminal loitering. The police reforms leading to that legal event began in 1958 when San Francisco business interests backed the nation's first iteration of preventive patrol policing. Named Operation S, the new program removed San Francisco patrol officers from the venal district stations, assigned them to a squad commanded out of the hall of justice, and then deployed the officers into predominantly African American neighborhoods. The police department encouraged participating police to use broad codes like vagrancy to detain black citizens who were engaged in “victimless” activities (including wearing articles of clothing—“windbreakers and dungarees”—that police officers claimed to associate with crime). When O. W. Wilson, a leading proponent of police professionalization, moved from UC Berkeley to the Chicago Police Department, he took San Francisco's preventive patrol model with him and popularized it as “stop-and-frisk” policing. During the late 1950s, San Francisco's rates of homicide and robbery were low and stable. So while crime rates may have facilitated the spread of stop-and-frisk policing, San Francisco's history illustrates that police professionalizers were willing to embrace this strategy in periods of relative tranquility (Agee Reference Agee2014, 37, 39, 154.).
Cosmopolitan liberals did not challenge Operation S's discretionary policing in black neighborhoods, but their attention was piqued when local police began issuing vagrancy arrests against Beats in San Francisco's North Beach neighborhood. Much of the new police attention in North Beach revolved around the presence of African Americans in San Francisco's Beat bar and cafe scene, but pro-police advocates elided those racial motivations and instead warned that the Beats' gender transgressions—for instance, the fact that some Beat drinking establishments maintained only a single, unisex bathroom—threatened the moral fiber of the city's families (De Martini 1959). Young cosmopolitan liberals, meanwhile, often patronized the Beat bars now under police surveillance. They, too, avoided discussions of anti-black harassment and brutality and concentrated on the policing of white gender expression. But unlike the conservatives, liberals used this focus on white Beats to insist that police were needlessly interfering with a physically unthreatening counterculture. Indeed, cosmopolitan liberals across urban America asserted that by curbing police discretion over the morals of white bohemians, cities could redirect police toward a more effective attack on “real crime … in the streets” (Agee Reference Agee2014, 142).
The development of Operation S, the subsequent police campaign in North Beach's bohemia, and the resulting protests from both the Beats and the cosmopolitan liberals set the stage for the vagrancy-law-for-criminal-loitering trade identified in Vagrant Nation. Assemblyman O'Connell launched his investigation into vagrancy law at the behest of his black constituents, but he attracted the interest of cosmopolitan liberals (a key demographic in O'Connell's district) when he highlighted the San Francisco Police Department's use of the statute against the Beats. By the time O'Connell introduced a vagrancy law repeal bill in the state legislature, so much of the political establishment associated vagrancy law with the Beats that one opponent characterized the repeal measure as the “Beatnik bill of rights” (Agee Reference Agee2014, 58).
Governor Brown, meanwhile, had cultivated support among San Francisco's downtown interests through police professionalization politics. As San Francisco's district attorney during the 1940s, Brown became a banner holder for professionalization through his pursuit of police corruption (Agee Reference Agee2014, 31). When Brown accepted the elimination of the vagrancy statutes that were used in North Beach but demanded the criminal loitering statute needed to perpetuate Operation S, he was threading a political needle that offered something to the downtown business interests, the civil rights activists, and the cosmopolitan liberals.
After California's 1961 repeal of vagrancy law, San Francisco's order-maintenance policing would thus be influenced both by the new legal emphases on statute specificity and conduct and by the political demands for professionalization and the racialized harm principle. As Besig could understand, this combination provided few new brakes over police supervision of black residents. That local implementation problem eventually had national implications when the Supreme Court made its Terry-Papachristou trade. The politics of police professionalism and the racialized harm principle both became dominant among policy makers in America's other major cities. Liberals were the first to champion professionalism and the harm principle, but conservatives increasingly saw how they, too, could use those standards to pursue their own “law-and-order” objectives (Harcourt Reference Harcourt2001; Murakawa Reference Murakawa2014, 16).
Papachristou and the Emergence of the Carceral State
Goluboff concludes her book by considering how the elimination of vagrancy law left a “gaping hole” in the legal authorization undergirding order-maintenance policing (341). After Papachristou outlawed status-based stops, legislatures passed a raft of conduct-based laws to recapture the breadth of functions police had lost (339, 341–42). Goluboff thus argues that the “loss of vagrancy authority made it harder to regulate all kinds of people” (342). The final pages of Vagrant Nation grapple with the significance of that legal story at the street level. Did it matter that regulation was “harder,” Goluboff asks, if the government simply reconstituted order-maintenance policing with “neo-vagrancy-type” laws (341)?
On its final page, Vagrant Nation notes that the reconstruction of order-maintenance policing in the post-vagrancy era forced localities to pump “massive outlays of governmental, intellectual, political, and policing capital” into law enforcement's “institutional and administrative” arms (344). Here, Vagrant Nation returns to the theme that police power depended on both the laws that authorized the police and the institutional frameworks within which police officers operated. After Papachristou, a constriction of power on one track drove officials to expand power along the other track.
Moving forward, scholars can further interrogate this relationship between legal reform and institutional reform. The vagrancy law repeal campaign not only spurred but also channeled the capitalization of policing. After the vagrancy law repeal campaign, officials would have to re-implement police authority in ways that abided by the new legal focus on harmful conduct (rather than status) and the political demands for professionalism. Whether this “harder” path to order maintenance provided citizens with substantial new liberties is debatable. However, that does not take away from Papachristou's significance. The “harder” approach to order maintenance, ironically, produced a more intractable police power.
After the vagrancy law repeal campaign, government officials began reauthorizing police surveillance by integrating police into the professional, harm-prevention processes of other social service institutions. In California, for instance, the Los Angeles Unified School District recovered police officer discretion by involving law enforcement in its newly bureaucratized disciplinary procedures. The school district spent millions of dollars to pay police to sort “at-risk” youth who were still harmless from “hardcore” students who posed an imminent threat. “At-risk” youth would be directed into diversion programs, while “hardcore” youth would fall under punitive supervision. Los Angeles police used their discretion within this new system to categorize white students as “at-risk” and black and Latino students as “hardcore,” and the police thereby reclaimed broad authority over Los Angeles's youth of color (Felker-Kantor Reference Felker-Kantor2016). Then, in the immediate wake of the Papachristou decision, the federal government nationalized Los Angeles's model through the Juvenile Justice and Delinquency Prevention Act and the renewal of the Elementary and Secondary Education Act. Together, these measures offered grants to school systems that increased police surveillance and used law enforcement to sort harmful “chronic offenders” from still-harmless “youth in trouble” (Hinton Reference Hinton2016).
Welfare institutions also integrated police into their functions. During the 1960s, courts ruled that simple poverty could no longer serve as a rationale for an arrest; they found this type of policing inimical to the modern welfare state (Goluboff 184). But on an informal basis, officers were also monitoring welfare recipients for fraud (179). After Papachristou, conservatives reconceived the poor as potential welfare fraudsters (i.e., harm threats), and government officials reclaimed police oversight over the poor by formalizing and expanding the police's fraud investigation function (Kohler-Hausman Reference Kohler-Hausman2017, 167–207, 295). Under President Jimmy Carter, the federal government promoted additional partnerships between police and urban social welfare groups. The president and Congress mandated that community recipients (e.g., tenants' councils and community centers) of federal anti-crime funds integrate law enforcement into their programs, and the federal government offered grants to public housing agencies with plans to increase police surveillance within public housing developments (Hinton Reference Hinton2016).
The new legal standards produced by the vagrancy law repeal campaign also reshaped police patrol work in ways that fostered the expansion of the carceral state. After Papachristou, cities worked to reclaim police discretion on the street by rapidly expanding professionalized, harm-oriented, preventive patrols. Philadelphia was typical in this respect. In 1973, Frank Rizzo, the Philadelphia mayor who had cultivated a national reputation as a champion for “street policing” and “street cops,” began promoting the police department's decoy unit. The city and the media characterized decoy policing as a strategy appropriate for the post-Papachristou era. Philadelphia's ten decoy teams did not police the streets for vagrants, one newspaper explained, but instead sent “officers onto the street disguised as vagrants” so that they could lure would-be muggers into assaulting them (Leary and Marimow Reference Leary and William1981a). Decoy unit supporters readily admitted that “the policemen involved must have a great deal of discretion,” but they rationalized that the unit's professionalism and focus on harm legitimated this power (Philadelphia Inquirer 1981). The decoy unit reported to the hall of justice rather than the district stations, and one article explained that the unit's commanding captain deployed the unit based on daily “computer print-outs … of reported crimes” (Bachrach Reference Bachrach1974). Meanwhile, decoy officers claimed they ignored the “dipper” who picked pockets and “d[id]n't like violence.” Instead, they sought out the “shark” who was out to “rob you, hurt you, rape you, kill you” (Roberts Reference Roberts1980).
Although the disguised decoys now made “the vagrant” an avatar for a city of potential crime victims, decoy teams did not abandon the order-maintenance imperatives of the vagrancy law regime. Decoy teams continued to police lines of class, sexuality, and, especially, race. Philadelphia's decoy officers concentrated their patrols in predominantly black neighborhoods and used their discretion to frame innocent citizens who were disabled or young or gay or black (Leary and Marimow Reference Leary and William1981c; Marimow and Leary Reference Marimow and Mike1981). In 1981, a federal grand jury indicted one decoy team for framing and assaulting (with fists, batons, and dogs) eight residents in less than a year.Footnote 3
Preventive policing units thus reclaimed the broad street-level authority police departments had lost in Papachristou, but these units were not simply dressing up old power arrangements in new clothes. Preventive policing units scrambled power relations within police departments, and in so doing created powerful new advocates for carceral state expansion. The old vagrancy law regime had relied on beat patrol officers who were isolated from other officers on separate beats, invisible to the public, and subservient to long-established district station hierarchies and city-hall-run payola networks. The post-Papachristou preventive patrol squads, by contrast, drew together ambitious low-ranking patrol officers, shined a public light on their activities, and released them from district station and machine ward influence. These new conditions allowed preventive patrol officers to garner media attention and cultivate followings among rank-and-file police. As a result, preventive patrol units gave rise to independent rank-and-file subcultures and soon those subcultures sought to transform big-city police unions (Agee Reference Agee2014). In the past, police unions had served as social clubs and relied on elites to advocate for the rank and file. These unions had often been dominated by detectives and inspectors who owed their posts to sponsors in city hall. Preventive patrols, however, catalyzed campaigns in which rank-and-file patrol officers now demanded their own authentic voice and a more aggressive breed of police union.
In Philadelphia, decoy officer Bob Hurst launched a representative rank-and-file campaign. As a costumed decoy officer through the 1970s, Hurst induced assaults from suspects and meted out violence during his arrests. His record earned him followings among the rank and file, the local and national media, and large swaths of the city's white voters.Footnote 4 In 1982, Hurst translated this popular support into political capital when he ran for the presidency of Philadelphia's Fraternal Order of Policemen. Hurst's opponent was a three-time president who had consistently deferred to Rizzo and had Rizzo's strong endorsement. Hurst campaigned as a “street cop” and argued it was time for the rank and file to speak for themselves. That message carried Hurst to victory (Fleeson Reference Fleeson1982).
Under Hurst, the Fraternal Order immediately challenged the city's efforts to cut the police budget. Philadelphia was hurtling toward bankruptcy, but Hurst's Fraternal Order initiated successful campaigns for increased salaries (Hepp Reference Hepp1985; Hepp, Sutton, and Infield Reference Hepp, William and Tom1987; Williams Reference Williams1988) and increased hires (Gibbons Reference Gibbons1988; Meyers Reference Meyers1989). This pattern played out in cities across the country. While cash-strapped city officials and their hand-picked police chiefs tried to rein in police spending, newly energized police unions demanded increases in police funds (Sklansky Reference Sklansky2007). The post-Papachristou preventive patrols of the 1970s had helped produce politicized unions, and during the 1980s, those unions emerged as important champions of spending for the carceral state.
After Papachristou, policy makers were able to reclaim police supervision over black and Latino citizens, but the new legal and political standards produced by the vagrancy law repeal campaign forced the government to do so on far more costly terms. During the vagrancy law era of order-maintenance policing, cities across the United States had been able to rely on interchangeable, politically voiceless police officers to use their broad discretion to march into spaces with marginalized citizens and maintain order using nearly any rationale. That old system had been cheap and straightforward. The post-Papachristou conduct-oriented, professionalized police regime, by contrast, pushed the government to integrate officers into other arms of the government and to expand high-profile preventive patrol units. The post-1973 law enforcement regime not only demanded an intense capitalization of urban police, but it increased the number of institutions and constituencies with the motivation and power to promote even greater levels of police spending.
When thinking about Papachristou's legacy it is right to consider whether the elimination of vagrancy law increased the citizenry's abilities to avoid or resist unjust law enforcement, but scholars can also consider whether the elimination of vagrancy law spurred the state to create a more sprawling, intractable policing regime. We can now draw together the policing histories that see the 1960s as a period of collapse and those that find in the 1960s origins of the carceral state by recognizing how the campaign to eliminate vagrancy law helped shape post-1973 expansion of police power.
