Controlling chronic misconduct in city spaces: Of panhandlers, Skid Rows, and public-space zoning

Yale Law Journal

Volumn 105, Issue 5, 1996, Pages 1165-1248

  Ellickson, Robert C ^a  

^a YALE UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 0000647949     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797175     Document Type: Article

References (542)

1. See CHRISTOPHER JENCKS, THE HOMELESS at v (1994) [hereinafter JENCKS, HOMELESS] (visible street poverty started to increase in late 1970s and worsened during 1981 recession);
2. WILLIAM H. WHYTE, CITY: REDISCOVERING THE CENTER 49 (1988) (in author's estimate, incidence of begging in midtown Manhattan doubled between 1980 and 1987).
3. On the onset of street homelessness, see generally BRENDAN O'FLAHERTY, MAKING ROOM: THE ECONOMICS OF HOMELESSNESS 32-40 (forthcoming 1996).
4. The Bowery Skid Row dates from 1872-1873, when its first mission and cheap lodging house opened. HOWARD M. BAHR, SKID ROW: AN INTRODUCTION TO DISAFFILIATION 31-32 (1973). In 1949, the Bowery had 47 lodging houses with a total of 11,219 beds. Most of these were gone by 1980. In 1993, 11 lodging houses remained; these houses had some 2400 beds, many of them unrented. O'FLAHERTY, supra note I, at 145, 178. By the mid-1990s, with the dwindling or disappearance of such institutions as gin mills, flophouses, public baths, and cheap restaurants, the Bowery's traditional Skid Row culture was barely detectable at street level.
5. See Michael T. Kaufman, Last Call Sounds for Last Gin Mill on the Bowery, N.Y. TIMES, Dec. 25, 1993, § 1, at 33.
6. More than half of the single-room occupancy (SRO) units in downtown Los Angeles were demolished between 1970 and 1985. PETER H. ROSSI, DOWN AND OUT IN AMERICA: THE ORIGINS OF HOMELESSNESS 182 (1989) (citing 1987 study by Hamilton, Rabinowitz & Alschuler, Inc.). The Los Angeles Skid Row endures partly because the city's Community Redevelopment Agency in the mid-1980s began to encourage the development and concentration of low-rent housing there.
7. See Edward G. Goetz, Land Use and Homeless Policy in Los Angeles, 16 INT'L J. URB. & REGIONAL RES. 540, 544-45 (1992).
8. On the Santa Monica situation before and after the crackdown in 1994, compare Sarah Lubman, Change of Heart: Santa Monica Grows Hostile to the Homeless Who Consider It Home, WALL ST. J., Nov. 9, 1992, at A1
9. (quoting 18-year resident: "I used to have picnics in the park. I don't do that anymore.") with Nancy Hill-Holtzman, Two Arrested for Sleeping in Palisades Park Under New Ban, L.A. TIMES, May 12, 1994, at 4.
10. Although "compassion fatigue" has become the phrase of the moment, "disorder fatigue" might be more descriptive. At the same time that voters were supporting street-control measures, large majorities were telling pollsters that they would support the imposition of higher taxes specifically to increase government spending on aid to the homeless. See NATIONAL LAW CTR. ON HOMELESSNESS AND POVERTY, THE RIGHT TO REMAIN NOWHERE 2 (1993) [hereinafter RIGHT TO REMAIN NOWHERE]
11. (citing results of Business Week/Harris Poll in BUS. WK., Nov. 1, 1993, at 35). A poll respondent could plausibly envisage that increased financial aid to the homeless would reduce levels of street misconduct.
12. See, e.g., Greater Cincinnati Coalition for the Homeless v. City of Cincinnati, 56 F.3d 710, 714 (6th Cir. 1995) (citing evidence that Cincinnati's enforcement of anti-begging ordinance had dramatically reduced panhandling); Robert M. Spector, Vouchers for Panhandlers: Creative Solutions to an Old Problem, 3 HYBRID: J.L. & SOC. CHANGE (forthcoming 1996) (manuscript at 52-56, on file with author) [hereinafter Spector, Vouchers for Panhandlers] (after police in New Haven systematically began to arrest panhandlers soliciting alms near Yale University in summer of 1994, incidence of begging dropped);
13. Alan Finder, Change Found in Subways: Panhandling Is Down, N.Y. TIMES, Mar. 19, 1995, at 37 [hereinafter Finder, Panhandling is Down] (New York City Transit Authority crackdown reduced incidence of aggressive and annoying panhandling).
14. On anti-panhandling and related measures in these three cities in 1994, see NATIONAL LAW CTR. ON HOMELESSNESS AND POVERTY, NO HOMELESS PEOPLE ALLOWED 10-12, 16-21, 36-39 (1994) [hereinafter NO HOMELESS PEOPLE ALLOWED].
15. On the ACLU's involvement, see Charlotte Allen, The ACLU Against the Cities: Challenges to Urban Civility, CITY J., Spring 1994, at 40, 40-47.
16. Garrett Hardin, The Tragedy of the Commons, 162 SCI. 1243, 1244 (1968).
17. But cf. CAL. BUS. & PROF. CODE § 22435.2 (West 1987) (criminalizing possession of shopping cart away from premises of retail establishment that provided it).
18. But cf. infra text accompanying notes 96-97 (on shortcomings of focus on headcounts).
19. See infra note 71 and accompanying text.
20. See infra notes 82-85 and accompanying text.
21. See, e.g., City of Seattle v. Webster, 802 P.2d 1333 (Wash. 1990) (rejecting battery of constitutional attacks on ordinance intended to limit aggressive begging and obstruction of sidewalks), cert. denied, 500 U.S. 908 (1991). Panhandling is seldom aggressive. See RIGHT TO REMAIN NOWHERE, supra note 4, at 41 (San Francisco sting operation targeted at aggressive panhandlers resulted in few arrests because most panhandlers were polite); Brandt J. Goldstein, Panhandlers at Yale: A Case Study in the Limits of Law, 27 IND. L. REV. 295, 319-21 (1993) [hereinafter Goldstein, Panhandlers at Yale] (lucid panhandlers consciously and strategically-adept respectful attitudes toward pedestrians).
22. See, e.g., Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) (rejecting argument that First Amendment entitled protesters to sleep overnight in tents in Lafayette Park across street from White House); United States v. Musser, 873 F.2d 1513 (D.C. Cir.) (affirming conviction for one night's bedding down on pallet in Lafayette Park), cert. denied, 493 U.S. 983 (1989); People v. Davenport, 222 Cal. Rptr. 736 (App. Dep't Super. Ct. 1985) (rejecting constitutional attack on Santa Barbara ordinance that prohibited nighttime sleeping in public parks and on public beaches), cert. denied, 475 U.S. 1141 (1986); cf. Boggs v. New York City Health & Hosp. Corp., 523 N.Y.S.2d 71 (App. Div. 1987) (sustaining involuntary hospital commitment of mentally ill woman who lived on public sidewalk in front of Manhattan restaurant), appeal dismissed, 520 N.E.2d 515 (N.Y. 1988). A government, of course, may decline to exercise this power. See Maureen Dowd, America's Front Lawn, N.Y. TIMES, Jan. 15, 1995, § 6 (Magazine), at 18 (describing chronic residents of Lafayette Park).
23. See. e.g., Allan C. Hutchinson, Les Misérables Redux: Law and the Poor, 2 S. CAL. INTERDISCIPLINARY L.J. 199 (1993) (asserting law's incompetence in dealing with needs of poor). The authors of two articles published in the early 1990s in the Harvard Law Review, then one of the most politically correct of student-managed law journals, appear to have shared this perspective. In the first. ACLU attorneys staunchly defend the First Amendment rights of panhandlers.
24. See Helen Hershkoff & Adam S. Cohen, Begging to Differ: The First Amendment and the Right To Beg, 104 HARV. L. REV. 896 (1991). Hershkoff and Cohen pay no serious attention to the interests of other street users, including the poor, women, and the elderly. See, e.g., id. at 903-04 (discussion of "self-realization" that considers only rights of beggars, with no regard to self-realization prospects of, say, elderly people whom beggars might scare off streets). Two years later, the Harvard editors published a second article (which does not cite Hershkoff and Cohen's article), which calls for vigorous legal regulation of wolf whistles and other sexual harassment of women by strange men in public spaces.
25. See Cynthia Grant Bowman, Street Harassment and the Informal Ghettoization of Women, 106 HARV. L. REV. 517 (1993). Bowman argues that the state has a compelling interest in policing the streets to protect the liberty interests of female pedestrians. As it happens, there is evidence that panhandlers disproportionately target women.
26. George Wilson, Exposure to Panhandling and Beliefs About Poverty Causation, 76 SOC. & SOC. RES. 14, 16 (1991) [hereinafter Wilson, Exposure to Panhandling]. A hyper-egalitarian would agree with the conclusions of both of these Harvard Law Review articles because both favor the most "subordinated" party at hand-destitute panhandlers, not ordinary pedestrians; women, not men.
27. See. e.g., Hutchinson, supra note 15, at 215. Apparently, a street person is perceived as living under circumstances disabling enough to excuse what otherwise would be culpable. For criticism of recognition of a duress defense against prosecution for street misconduct, see infra text accompanying notes 98-106.
28. See infra notes 118-19 and accompanying text.
29. See, e.g., Hershkoff & Cohen, supra note 15; sources cited infra notes 21, 346, 350, 369.
30. Caleb Foote, Vagrancy-Type Law and Its Administration, 104 U. PA. L. REV. 603 (1956);
31. see also William O. Douglas, Vagrancy and Arrest on Suspicion, 70 YALE L.J. 1 (1960) (on use and misuse of vagrancy statutes); Foote, supra, at 643-47 (describing procedural travesties).
32. But cf. Rollin M. Perkins, The Vagrancy Concept, 9 HASTINGS L.J. 237, 250-61 (1958) (laudatory assessment of vagrancy law).
33. See infra text accompanying notes 141-80.
34. To date, the most conspicuous outlier among law review articles has been Robert Teir, Maintaining Safety and Civility in Public Spaces: A Constitutional Approach to Aggressive Begging, 54 LA. L. REV. 285 (1993). Teir is associated with the American Alliance for Rights and Responsibilities.
35. JANE JACOBS, THE DEATH AND LIFE OF GREAT AMERICAN CITIES (1961) [hereinafter JACOBS, DEATH AND LIFE]. Jacobs begins what is perhaps the most influential book ever written on cities with three chapters on the functions of sidewalks, stating: The bedrock attribute of a successful city district is that a person must feel personally safe and secure on the street among all these strangers. He must not feel automatically menaced by them. A city district that fails in this respect also does badly in other ways and lays up for itself, and for its city at large, mountain on mountain of trouble. Id. at 30.
36. Skogan sets out his views in WESLEY G. SKOGAN, DISORDER AND DECLINE: CRIME AND THE SPIRAL OF DECAY IN AMERICAN NEIGHBORHOODS (1990), and similarly notes that "[v]isible physical and social disruption is a signal that the mechanisms by which healthy neighborhoods maintain themselves have broken down. If an area loses its capacity to solve even seemingly minor problems, its character becomes suspect." Id. at 48.
37. James Q. Wilson & George L. Kelling, Broken Windows: The Police and Neighborhood Safety, ATLANTIC MONTHLY, Mar. 1982, at 29, 31-32. Mayor Giuliani's police commissioner is an unabashed proponent of the thesis.
38. See William J. Bratton, The New York City Police Department's Civil Enforcement of Quality-of-Life Crimes, 3 J.L. & POL'Y 447, 448-50 (1995).
39. In the case of both private and public lands, this zoning need not necessarily be carried out by municipal officials. See infra text accompanying notes 311-28.
40. On December 8, 1994, the Berkeley City Council passed an ordinance identical to Measure O, an advisory measure that voters had approved on November 8, 1994. Elaine Herscher, Berkeley Council Oks Curbs on Panhandling, S.F. CHRON., Dec. 9, 1994, at A23. In the teeth of Ronald Reagan's presidential landslide in 1984, Walter Mondale garnered 83% of the vote in Berkeley.
41. Gerard De Groot, People's Park, Berkeley. California, HIST. TODAY, July 1993, at 62.
42. See generally AMITAI ETZIONI, THE SPIRIT OF COMMUNITY: RIGHTS, RESPONSIBILITIES, AND THE COMMUNITARIAN AGENDA (1993) (criticizing increase in rights and decrease in responsibilities rhetoric in contemporary society);
43. MARY ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE 76-108 (1991) (urging greater legal stress on responsibilities);
44. Linda C. McClain, Rights and Irresponsibility, 43 DUKE L.J. 989 (1994) (evaluating irresponsibility critique of increase in rights rhetoric).
45. See ALLAN B. JACOBS, GREAT STREETS 4, 8-9 (1993) [hereinafter JACOBS, GREAT STREETS] (suggesting that, while street should be safe, it should also function as space for social encounters that are not always pleasant).
46. In general, the private owner of a regional shopping mall has greater authority over the use of its common areas than a city has over the use of open-access public lands. Private owners, however, are also constrained to some degree. See Curtis J. Berger, Pruneyard Revisited: Political Activity on Private Lands, 66 N.Y.U. L. REV. 633, 633-37, 678-90 (1991).
47. See Edward J. Blakely & Mary Gail Snyder, Fortress Communities: The Walling and Gating of American Suburbs, LANDLINES (Cambridge, Mass.), Sept. 1995, at 1, 3.
48. John H. Niedercorn & Edward F.R. Hearle, Recent Land-Use Trends in Forty-Eight Large American Cities, 40 LAND. ECON., at 105, 106 (1964); see also JACOBS, GREAT STREETS, supra note 27, at 6 (in U.S. cities, public rights-of-way constitute 25% to 35% of developed land). Some government lands, such as sewage treatment plants and school facilities, are limited-access.
49. For a fuller discussion, see Robert C. Ellickson, Property in Land, 102 YALE L.J. 1315, 1381-87 (1993).
50. See Carol Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. CHI. L. REV. 711, 768-71, 774-81 (1986).
51. There inevitably are disputes over what spaces must be open to all. See, e.g., Evans v. Newton, 382 U.S. 296, 301-02 (1966) (Equal Protection Clause forbids racial discrimination by private trustees whom Georgia court had appointed to operate park that served public functions).
52. On the sociology of sidewalks, see, e.g., Ralph B. Taylor et al., Block Crime and Fear: Defensible Space, Local Social Ties, and Territorial Functioning, 21 J. RES. IN CRIME & DELINQ. 303 (1984).
53. Cox v. New Hampshire, 312 U.S. 569, 574 (1941).
54. See ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM 24-28 (1960);
55. Harry Kalven, Jr., The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup. CT. REV. 1, 23-25 ("Speech has always been dependent on some commitment to order and etiquette."). But see Hershkoff & Cohen, supra note 15, at 901-02 (arguing that presence of beggars on streets contributes to "town meeting" functions of public spaces).
56. The importance of participation in civic discourse is stressed in Frank Michelman, Law's Republic, 97 YALE L.J. 1493, 1495-96, 1505-06 (1988),
57. and Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539, 1555-56 (1988). For more venerable sources, including Aristotle and Hannah Arendt, see Bowman, supra note 15, at 520-21 n.14. N.J. CONST. art. I, para. 18, reflects the same classical vision of the polis: "The people have the right freely to assemble together, to consult for the common good, to make known their opinions to their representatives, and to petition for redress of grievances." Remarkably, one judge construed this vision of collective deliberation as a bar on a library's efforts to control a patron whose behavior and body odor were driving away other users. See Kreimer v. Bureau of Police, 765 F. Supp. 181, 196-97 (D.N.J. 1991) (Sarokin, J.), rev'd, 958 F.2d 1242 (3d Cir. 1992). For more on this litigation, see infra notes 367, 460.
58. WHYTE, supra note 1, at 6.
59. See id at 25, 55, 156-64.
60. Id. at 156.
61. Whyte is mystified that downtown civic leaders, businessmen, and retailers are preoccupied with street misbehavior, and regards them as uninformed. See id. at 156-58. Because those individuals all have a stake in revitalizing central cities, a more plausible interpretation is that they concur with more clear-eyed observers, such as Jane Jacobs and Wesley Skogan, who recognize that disorder itself can cause a streetscape to lose pedestrians. See supra text accompanying notes 21-23. Allan Jacobs, another respected urbanologist, generally shares Whyte's obliviousness to the need for social controls in public spaces. Jacobs's discussion of the decline of Market Street in San Francisco makes no mention of the spiraling misbehavior along that street in the 1980s. See JACOBS, GREAT STREETS, supra note 27, at 88-92.
62. For this reason, even if the residents of a city were mainly concerned about chronic street nuisances, a city attorney might advise a city council only to target particular incidents.
63. One difficulty is providing a satisfactory legal definition of "chronic." This basically involves choosing between a rule and a standard, a pervasive legal dilemma discussed infra text accompanying notes 460-61. Some pertinent statutes employ a vague but flexible adjectival standard, such as "chronic," "repeated," or "inveterate." Cf. CAL. PENAL CODE § 647(2) (West 1872) (repealed 1961) (punishing as vagrant "every beggar who solicits alms as a business"); id. § 647(11) (repealed 1961) (punishing as vagrant "every common drunkard"). Judges might hold that due process requires that legal norms against chronic misconduct be articulated more precisely as "rules," on the theory that a rule limits police discretion and provides better notice to potential defendants. Such decisions might lead local legislators to approve ordinances that contain rather arbitrary numerical breakpoints such as "three days in a row," or "an average of over ten hours a week for a four-week period."
64. See Goldstein, Panhandlers at Yale, supra note 13, at 299, 314, 317 (in New Haven's York district in 1991-1992, the dozen chronic panhandlers typically outnumbered transients by about four-to-one at any point in time; nine of these regulars had worked that area for more than one year, and averaged four days a week, five hours per day); Melinda Henneberger, On Patrol Against Subway's Panhandlers. N.Y. TIMES, Jan. 16, 1994, at 23 (N.Y.C. transit police estimate that about 50 panhandlers regularly work subway trains; while with journalist, patrol officers recognized all panhandlers they encountered). Because the police tend to regard dealing with violent crime as their top priority, patrol officers commonly are tougher on unfamiliar transients than on chronic street people whom they know to be peaceable.
65. See LEONARD BLUMBERG ET AL., SKID Row AND ITS ALTERNATIVES 64 (1973) (discussing Philadelphia); Goldstein, Panhandlers at Yale, supra note 13, at 345-46 (in New Haven, regular panhandlers ally with police against transients).
66. In 1986, workers for an outreach program for the mentally ill in Central Park and the Upper West Side tallied their monthly contacts with people who (as a journalist put it) "day after day, unless they wander elsewhere for a time, are on a bench or sidewalk, or perched on a rock in the park." In an average month, the staff was in contact with 479 regulars, but only 120 persons whom they saw just once. Daniel Goleman, To Expert Eyes, City Streets Are Open Mental Wards, N.Y. TIMES, Nov. 4, 1986, at C1.
67. The positive relationship between duration and severity of offensiveness is noted in RESTATEMENT (SECOND) OF TORTS § 821B(2)(c) (1979) (on identification of public nuisance). See also 2 JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: OFFENSE TO OTHERS 35 (1985) (severity of offense to others turns in part on its duration).
68. There have been few academic studies about the sorts of street conduct that disturb, how much they disturb, and how the level of harm varies with the passage of time. An exception is SKOGAN, supra note 22, at 20-50 (report of results of field research in total of 10 neighborhoods in Chicago, Philadelphia, and San Francisco).
69. This issue appears only to have been discussed in cases involving views of inanimate objects, as opposed to persons. The Supreme Court has held that a city's interest in aesthetics may entitle it to control the placement of billboards on private lands and of posters on public lands. See sources cited infra notes 385-86. These decisions recognize that it is often impossible for a pedestrian to turn away from a sight either because he must maintain a particular line of vision to navigate, or because (as in the case of film violence) the sight registers before he can avoid it. See Packer Corp. v. Utah, 285 U.S. 105, 110 (1932) (Brandeis, J.) ("'The radio can be turned off, but not so the billboard or street car placard.'" (quoting State v. Packer Corp., 297 P. 1013, 1019 (Utah 1931))). In the language of First Amendment doctrine, street sights pose a mild form of the "captive viewer" problem. See Lehman v. City of Shaker Heights, 418 U.S. 298, 306-07 (1974) (Douglas, J., concurring). Justice Brennan had less sympathy for those seeking to prevent expression offensive to passersby in public spaces; he believed viewers could simply look away. Id. at 320 (Brennan, J., dissenting); see also Cohen v. California, 403 U.S. 15, 21 (1971) (Harlan, J.) ("Those in the Los Angeles courthouse could effectively avoid further bombardment of their sensibilities simply by averting their eyes."). Regulation of views of persons is more legally complex than regulation of views of objects such as billboards. On the one hand, persons tend to be more intrusive presences because they can speak and move. On the other hand, the regulation of personal appearance is potentially deeply threatening to individual liberty, and may be a pretext for discrimination based on unalterable status. See infra text accompanying notes 98-106, 329-451.
70. See supra text accompanying note 23. For evidence consistent with the broken-window theory, see SKOGAN, supra note 22, at 65-75. Skogan contrasts that theory with Emil Durkheim's view that deviancy enhances the solidarity of nondeviants. Id. at 66.
71. See WHYTE, supra note 1, at 156. A proliferation of bench squatters similarly tends to lead to the elimination of amply sized benches. See id. at 117; Alan Finder, Benches Removed from Subway Stations, N.Y. TIMES, Feb. 28, 1990, at B1; Goetz, supra note 3, at 545 (L.A. bus benches redesigned to prevent them from being used for sleeping). The breakdown in social control is also causing developers to eliminate ground-level public atriums and plazas from their designs.
72. Joan Lebow, U.S. Cities' Physical Structure May Wane in Bid to Bar Vagrancy, Architect Warns, WALL ST. J., May 26, 1989, at B3A. Zoning provisions governing the Upper East Side of Manhattan used to encourage developers to provide open plazas; these bonus provisions were then eliminated: "Planners want an uninterrupted wall of buildings because they say public plazas have attracted drug users and crime."
73. James C. McKinley, Jr., Zoning Changes Reduce Size of East Side Projects, N.Y. TIMES, Feb. 10, 1994, at B3.
74. Academic norms similarly constrain a student from talking at excessive length in class or remaining for too many years in graduate study.
75. Cf. JACOBS, GREAT STREETS, supra note 27, at 300 (implying that police should enforce time limits on bench squatters).
76. Cf. infra note 62 (Rousseau's loss of patience with boy beggar).
77. Ellen Goodman, Swarms of Beggars Cause "Compassion Fatigue," NEW HAVEN REG., Aug. 4, 1989, at A9.
78. Although cost-benefit analysis provides a fruitful perspective on issues of street disorder, it fails to account for nonutilitarian considerations such as liberty, privacy, equality, and distributive justice. These and other additional normative considerations are discussed infra text accompanying notes 96-127, 329-451.
79. Like any person who appears in public, an ordinary panhandler also conveys a number of unintended political messages. Because these messages are unintended, First Amendment law rightly accords them little weight. See infra text accompanying notes 354-60.
80. See WHYTE, supra note 1, at 49 (estimating that "professional blind beggars" on Fifth Avenue take in at least an average of S100-S150 per day); Nicholas Dawidoff, The Business of Begging, N.Y. TIMES, Apr. 24, 1994, § 6 (Magazine), at 34, 40, 41 (describing two panhandlers who daily take in $200 each on New York City subway and spend most of it on narcotics).
81. The fragmentary sources on panhandlers' receipts suggest that, in the early 1990s, most were obtaining donations at roughly this rate. See O'FLAHERTY, supra note 1, at 82, 85-86 (stating that earnings of most daytime street people, such as panhandlers and can collectors in Manhattan, amount to less than minimum wage, and median panhandler in survey had reported income during prior week of $32.50 on best day, and $2.50 on worst day); Goldstein, Panhandlers at Yale, supra note 13, at 314, 317 (estimating that at Yale, middle range was $20 to $50 per five-hour day); Philip Hager, Weighing the Costs of Accosting, CAL. LAW., Feb. 1994, at 35, 36 (citing 1992 Berkeley study finding that median panhandler took in $16 in eight-hour day). The panhandlers at Yale regarded their activity as far more remunerative than gathering and returning cans, and also were generally "uninterested in working at the minimum wage." Goldstein, Panhandlers at Yale, supra note 13, at 303; see also id. at 323 n.92. On the apparent decline in beggars' receipts over the course of the first half of the 1990s, see infra note 300.
82. If a beggar were permanently disabled, his best use of time might be the pursuit of Supplemental Security Income benefits. See infra note 122 and accompanying text.
83. In 1991-1992, panhandlers in the York district adjacent to Yale reported that 10%-20% of pedestrians were inclined to give to them. Goldstein, Panhandlers at Yale, supra note 13, at 324. Yale students were far more likely than others to give. Id. A 1994 survey of Yale Law students, with a response rate of 31%, indicated that 57% sometimes gave either cash or vouchers to panhandlers. Robert M. Spector, New Haven Cares: The Voucher Concept 84 & n.258, 108 (Dec. 31, 1994) (unpublished manuscript, on file with author).
84. See NO HOMELESS PEOPLE ALLOWED, supra note 6, at 100, 103 (on placement of "parking meters" in downtown areas of Memphis and Nashville into which pedestrians can place coins as donations to homeless-aid organizations); infra notes 168-69 and accompanying text. To provide a more satisfying outlet for altruistic pedestrians, O'Flaherty suggests that the government officials should consider encouraging the Salvation Army to augment its street solicitations. See O'FLAHERTY, supra note 1, at 293-94 (arguing that result would be fewer street nuisances and perhaps more money for service programs).
85. Several law students who are consistently generous to panhandlers have informed me that they occasionally cross a street to escape the moral dilemma that an encounter would pose for them. For a poignant description of this feeling, see JEAN-JACQUES ROUSSEAU, REVERIES OF THE SOLITARY WALKER 93-94 (Peter France trans., Penguin Books 1979) (1782). After first taking pleasure in regularly giving to a crippled boy who begged, Rousseau found these transfers "somehow transformed into a sort of duty which [he] soon began to find irksome . . . . [I]n the end [he] unthinkingly adopted the habit of making a detour when [he] approached this obstacle." Id.
86. See, e.g., Hershkoff & Cohen, supra note 15, at 899 n.17.
87. See, e.g., 3 Qur'an 17:27 (Surah Al-Fatihah & Surah Al-Baqara trans., 1988).
88. See, e.g., 1 id. 2:274. But cf. 1 id. 2:178. "The Holy Prophet [Muhammad] greatly disapproved of begging and there are diverse sayings of his to that effect." 1 id. at 342 (commentary). See also the commentary in 3 id. at 1428 ("Help may sometimes be denied to a seemingly needy person when it is feared that the giving of it would have an adverse effect upon him; for instance, he may be a professional beggar or may be addicted to some bad habit.").
89. See, e.g., Leviticus 19:9-10. For discussion, see Robert C. Ellickson & Charles DiA. Thorland, Ancient Land Law: Mesopotamia. Egypt, Israel, 71 CHI.-KENT L. REV. (forthcoming 1995) (manuscript at 37-38, on file with author). While me Hebrew Bible contains many passages expressly sympathetic to the poor, it makes no mention of street beggars.
90. The Synoptic Gospels of the New Testament strongly urge donors to initiate transfers of gifts and services to the poor. See, e.g., Matthew 19:21, 25:35-43; Mark 10:21; Luke 14:13 (New Rev. Standard Version). These passages support the operation of soup kitchens and shelters. See generally HARRY MURRAY, Do NOT NEGLECT HOSPITALITY: THE CATHOLIC WORKER AND THE HOMELESS (1990) (asserting that giving shelter and food to homeless is ancient tradition that has recently been neglected). Several New Testament passages also indicate the propriety of satisfying a request for a medical cure. The Book of Mark and The Book of Luke report that when the blind beggar Bartimaeus, sitting by a roadside, cried out to Jesus for mercy, Jesus asked, "What do you want me to do for you?" When Bartimaeus answered, "let me see again," Jesus restored his sight. Mark 10:46-52; Luke 18:35-43; see also John 9:1-11. It is not obvious what Jesus would have done had Bartimaeus asked for shekels. See Acts 3:1-10 (reporting how Peter cured beggar of lameness). The account of Lazarus, the poor man "carried away by the angels" after death, conceivably supports the legitimacy of begging. But while the King James translation identifies Lazarus as a "beggar," the most widely accepted modem translation, the New Revised Standard Version, does not. Compare Luke 16:19-23 (King James) with Luke 16:19-23 (New Rev. Standard Version).
91. 1 Thessalonians 5:14 (New Rev. Standard Version) ("[A]dmonish the idlers . . . ."); 2 id. 3:10-12 (New Rev. Standard Version) ("Anyone unwilling to work should not eat.").
92. The leading scholars of street disorder include panhandling among urban nuisances. See SKOGAN, supra note 22, at 21 (panhandling is seen as "minor annoyance[]"); Wilson & Kelling, supra note 23, at 29-30 ("[W]e tend to overlook or forget another source of fear-the fear of being bothered by disorderly people. Not violent people, nor, necessarily, criminals, but disreputable . . . people: panhandlers, drunks, addicts, rowdy teenagers, prostitutes, loiterers, the mentally disturbed."). For an evocative discussion of the psychological discomfort a panhandler may trigger in pedestrians, see Michael M. Burns, Fearing the Mirror: Responding to Beggars in a 'Kinder and Gentler' America, 19 HASTINGS CONST. L.Q. 783, 797-802 (1992).
93. Young v. New York City Transit Auth., 903 F.2d 146, 149-50 (2d Cir.) (citing George Kelling study of adverse reaction of subway riders to panhandlers), cert. denied, 498 U.S. 984 (1990); James N. Baker, Don't Sleep in the Subway, NEWSWEEK, June 24, 1991, at 26 (referring to 1991 public opinion poll commissioned by San Francisco Attorney's Office in which one-fourth of respondents stated that they shopped less often in San Francisco because they had been "turned off by panhandlers").
94. DAVID A. SNOW & LEON ANDERSON, DOWN ON THEIR LUCK: A STUDY OF HOMELESS STREET PEOPLE 161 (1993) (shop owners on drag adjacent to University of Texas campus in Austin "are convinced that . . . panhandlers scare off potential customers"); Goldstein, Panhandlers at Yale, supra note 13, at 331-33 (many Yale-area merchants regard panhandlers as bad for their businesses); see also infra text accompanying notes 166-69 (on activities of merchants' associations).
95. See infra note 361.
96. David Rosenfield et al., Effect of an Encounter with a Black Panhandler on Subsequent Helping for Blacks: Tokenism or Confirming a Negative Stereotype?, 8 PERSONALITY & SOC. PSYCHOL. BULL. 664 (1982). "Research has shown that part of the whites' stereotype of blacks is that blacks are lazy and lacking in ambition and industriousness." Id. at 669 (footnote omitted).
97. See infra text accompanying note 341.
98. See supra note 53 and accompanying text; see also Christopher Edley, Jr., Season's Seethings: I Am Not a Point of Light, LEGAL TIMES, Dec. 18, 1989, at 26 (referring to his own application of "bizarre exhaustion-of-administrative-remedies principle"). Edley, a Harvard Law professor, regards the multitude of beggars in Harvard Square as indicative of the inadequacies of government social-welfare programs. Id. More plausibly, it suggests the generosity of local welfare efforts. In the 1990s, panhandling has been most common in Berkeley, New York, San Francisco, Washington, D.C., and other cities that have relatively expansive social-welfare programs. It appears that taxpayers willing to support relatively generous welfare programs are also relatively more inclined to give to panhandlers. Panhandlers have no trouble recognizing these realities. The high incidence of beggars in Harvard Square therefore says little or nothing about the relative destitution of the Cambridge poor, but much about the relative generosity of Harvard pedestrians and voters. This point was well understood in the late nineteenth century. "Beggars increase in number in proportion to the means provided for their relief."
99. C.G. Tiedeman, Police Control of Dangerous Classes. Other Than by Criminal Prosecutions, 19 AM. L. REV. 547, 567 (1885).
100. For fuller discussion of the various inferences that pedestrians may draw, see Infra text accompanying notes 354-60.
101. "The unchecked panhandler is, in effect, the first broken window." Wilson & Kelling, supra note 23, at 34; see also supra text accompanying notes 22-23.
102. See Robert C. Ellickson, The Untenable Case for an Unconditional Right to Shelter, 15 HARV. J.L. & PUB. POL'Y 17, 20-24, 32-34 (1992) [hereinafter Untenable Case].
103. For clues that the work ethic indeed is in decline, see CHRISTOPHER JENCKS, RETHINKING SOCIAL POLICY: RACE, POVERTY, AND THE UNDERCLASS 150 (1992) [hereinafter JENCKS, RETHINKING] (reporting that proportion of heads of poor households under age 65 who did not work all year and were not excused from work by disability or enrollment in school rose from 12.3% in 1968 to 21.8% in 1987). This trend, however, may also reflect a drop in demand for unskilled labor.
104. See infra text accompanying notes 182-85.
105. See infra text accompanying notes 307-09.
106. The chronicle of a particular bench squatter in the Lincoln Park neighborhood of Chicago is brilliantly and sympathetically recounted in Jeffrey Zaslow, Jim's Saga: Homeless Man Haunts a Gentrified Enclave, Baffling Its Residents, WALL ST. J., Dec. 1, 1986, at 1.
107. See Jeffrey Zaslow, Jim's Saga: Homeless Man Haunts a Gentrified Enclave, Baffling Its Residents, WALL ST. J., 1986, 1. id.
108. See Boggs v. New York City Health & Hosp. Corp., 523 N.Y.S.2d 71, 73-74 (App. Div. 1987).
109. See Zaslow, supra note 82, at 1.
110. See supra text accompanying notes 51-54. Some judges appear oblivious to this point. See Streetwatch v. National R.R. Passenger Corp., 875 F. Supp. 1055, 1063-64 (S.D.N.Y. 1995) (holding Amtrak abridged rights to travel of persons arrested for hanging out for too long in Penn Station).
111. See infra text accompanying notes 141-69.
112. The Coase Theorem offers the reminder that it conceivably would be possible for victims of a nuisance to bribe the offender to cease. For example, a restaurateur might bribe a chronic panhandler to move to another location. While the Coasian insight is invariably thought-provoking, a legal system has two sound reasons for choosing to entitle the public to be free of, say, nuisance panhandling, rather than to entitle panhandlers to ply their trade. First, as a matter of corrective justice, the violation of social norms should not become an avenue for profit. Second, post-Coasian analysis requires attention to asymmetries in transaction costs. When the vast majority of members of a community honor a norm prohibiting certain behavior, it is administratively cheaper to punish the few violators of the norm than to reward the many in compliance with it. More concretely, if a restaurateur had to buy off would-be panhandlers, many destitute people might flock to the restaurant to negotiate a deal of this nature. An advantage of deterring substandard behavior with penalties is that fewer transactions need be closed. See Robert C. Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls, 40 U. CHI. L. REV. 681, 728-33 (1973) [hereinafter Alternatives to Zoning].
113. For examination of the kindred private-nuisance doctrines that apply to disputes among private landowners, see, e.g., id. at 719-61; Richard A. Epstein, Nuisance Law: Corrective Justice and its Utilitarian Constraints, 8 J. LEGAL STUD. 49 (1979).
114. See RESTATEMENT (SECOND) OF TORTS § 821B(1) (1979): "A public nuisance is an unreasonable interference with a right common to the general public." According to the California Civil Code, a nuisance is "[a]nything which is . . . offensive to the senses . . . or unlawfully obstructs the free passage or use, in the customary manner, of . . . any public park, square, street, or highway." CAL. CIV. CODE § 3479 (West 1970). According to the Code, a public nuisance "affects at the same time an entire community or neighborhood, or any considerable number of persons." Id. § 3480. The Model Penal Code attempts to shoehorn public-nuisance infractions into the crime of disorderly conduct, which rarely shares the durational feature of a nuisance. See MODEL PENAL CODE § 250.2 cmt. 2 (1985). True to the temper of the 1970s, see infra text accompanying notes 236-46, the comments that follow § 250.2 seem far more focused on the risk of police misconduct than on the risk of offensive street behavior.
115. See RESTATEMENT (SECOND) OF TORTS § 821C(1) (1979) (on special injury); id. i 821C(2)(b) (on actions by public officials to abate public nuisances);
116. W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 90 (5th ed. 1984) (describing how state can seek court order to abate or initiate criminal prosecution).
117. See 2 FEINBERG, supra note 46, at 5-10, 25-49 (drawing on nuisance law to inform analysis of problems of public offense). But see Harlon L. Dalton, "Disgust" and Punishment, 96 YALE L.J. 881, 901-09 (1987) (reviewing Feinberg) (arguing that reactions of disgust are culturally derived and therefore should be beyond reach of criminal law).
118. See Robert Abrams & Val Washington, The Misunderstood Law of Public Nuisance: A Comparison with Private Nuisance Twenty Years After Boomer, 54 ALB. L. REV. 359, 367-74 (1990) (standard of liability in public-nuisance action is strict);
119. see also RESTATEMENT (SECOND) OF TORTS § 821B cmts. c & e (1979) (advocating strict liability for activity declared to be public nuisance by statute). Instead of being judged by a strict-liability test, individual patterns of street behavior might be subjected to cost-benefit analysis, such as the Learned Hand formula for negligence articulated in United States v. Carroll Towing Co., 159 F.2d 169, 173 (1947).
120. See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 163-67 (4th ed. 1992). If the street behavior were to cease, would pedestrians value their gains more than the street person would disvalue having lost the opportunity to engage in it? A decisive drawback of this negligence approach is that actual attempts to quantify costs and benefits tend to be either fanciful, unacceptably costly to carry out, or both. In economics, cost-benefit analysis involves application of the Kaldor-Hicks criteria. See id. at 13-15. Especially because many panhandlers and bench squatters are destitute, the outcome of a Kaldor-Hicks calculation may turn on how the entitlements are originally allocated.
121. On the general point, see Richard S. Markovits, Duncan's Do Nots: Cost-Benefit Analysis and the Determination of Legal Entitlements, 36 STAN. L. REV. 1169, 1188-98 (1984) (discussing indeterminacy in cost-benefit analysis).
122. Feinberg rightly warns against blanket imposition of the standards of the hypersensitive. 2 FEINBERG, supra note 46, at 33-34. But cf. infra text accompanying note 310 (provision of Green Zones for the delicate).
123. See infra note 118.
124. Carl Goldfarb & Joseph Tanfani, Fight Rages Over Business Plans for Bayfront Land, MIAMI HERALD, May 4, 1992, at 1B (only homeless and police officers frequent Bicentennial Park in downtown Miami); cf. supra note 3 (some residents of Santa Monica stopped picnicking in the city's Palisades Park when bench squatters took over there).
125. See supra text accompanying notes 51-54.
126. See MODEL PENAL CODE § 2.01 (1985) (stating that "voluntary act" typically is prerequisite for criminal culpability); infra text accompanying notes 443-51 (on status crimes).
127. See, e.g., NO HOMELESS PEOPLE ALLOWED, supra note 6, at 6 (construing municipal efforts to control street misconduct as "impulse to criminalize poverty"). As the court noted in Streetwatch v. National R.R. Passenger Corp., 875 F. Supp. 1055, 1066 (S.D.N.Y. 1995) (Motley, J.): Defendants contend that the court should either concur in their labeling of the homeless as a criminal class or give weight to a perceived public interest in avoiding the aesthetic discomfort of being reminded on a daily basis that many of our fellow citizens are forced to live in abject and degrading poverty. The court cannot endorse either of these proposals.
128. See, e.g., Donald E. Baker, Comment, "Anti-Homeless" Legislation: Unconstitutional Efforts To Punish the Homeless, 45 U. MIAMI L. REV. 417 (1990-91) (arguing that a number of defenses protect homeless from criminal prosecution for sleeping in streets or parks);
129. David M. Smith, Note, A Theoretical and Legal Challenge to Homeless Criminalization as Public Policy, 12 YALE L. & POL'Y REV. 487 (1994) (arguing that status of being homeless should constitute duress defense in event of criminal prosecution for "survival" activities); Letter from Maria Foscarinis to author (July 30, 1995) (on file with author) (embracing view that legal system should first "correct the conditions which contribute to or require" street misconduct before it seeks to correct misconduct itself).
130. See RICHARD W. WHITE, JR., RUDE AWAKENINGS: WHAT THE HOMELESS CRISIS TELLS US 169-88 (1992) (describing this ideology and demonstrating its pervasiveness).
131. On the resourcefulness and resilience of Austin street people, see SNOW & ANDERSON, supra note 71, at 313-16.
132. See ROSSI, supra note 3, at 109 (20.6% of homeless in Chicago study had received income from "handouts" during prior month); Spector, Vouchers for Panhandlers, supra note 5, at 20 (citing Santa Barbara survey reporting that only 7% of users of city shelters panhandled).
133. See supra note 58.
134. See sources cited supra notes 57-58.
135. See supra text accompanying note 81.
136. See sources cited supra note 19.
137. Cf. Alternatives to Zoning, supra note 88, at 748-61 (on defenses in private-nuisance cases).
138. On the general issue, see MODEL PENAL CODE §§ 4.01-.09 (1985).
139. See infra text accompanying notes 301-28 (on "zoning" of public spaces).
140. The development of § 1983 law since the 1960s has likely made the police more respectful of this constraint. See infra text accompanying notes 260-67.
141. See infra text accompanying notes 254-59. The exceptions involve extreme facts, such as those in Boggs v. New York City Health & Hosp. Corp., 523 N.Y.S.2d 71 (App. Div. 1987). See supra note 14.
142. For this reason, I generally applaud the deinstitutionalization movement. See Stephen J. Morse, A Preference for Liberty: The Case Against Involuntary Commitment of the Mentally Disabled, 76 CAL. L. REV. 54 (1982).
143. See Boggs, 523 N.Y.S.2d 71.
144. State v. Ungerer, 621 N.E.2d 893 (Ohio Ct. App. 1993) (affirmative defense of not guilty by reason of insanity is not available to defendant charged with violating traffic laws); State v. Maguire, 717 P.2d 226 (Or. Ct. App. 1986), aff'd by equally divided court, 736 P.2d 193 (Or. 1987) (driving while under influence of intoxicants is strict-liability crime, and statutory defense of lack of capacity is not available). But cf. State v. Olmstead, 800 P.2d 277 (Or. 1990) (amended Oregon statute makes insanity defense available to defendant accused of driving while intoxicated and without license, even though both are strict-liability offenses). A person found guilty except for insanity commonly is subject to a variety of noncriminal sanctions. See, e.g., OR. REV. STAT. § 809.410(23) (1993) (person who, but for insanity defense, would have been guilty of traffic offense shall have driving privileges immediately suspended).
145. See infra notes 190-98.
146. See supra text accompanying notes 15-16. Supporters of this view commonly invoke the following quotation from Anatole France: "[The poor] must labour in the face of the majestic equality of the laws, which forbid rich and poor alike to sleep under the bridges, to beg in the streets, and to steal their bread." ANATOLE FRANCE, THE RED LILY 91 (Winifred Stephens trans., Dodd, Mead & Co. 1927) (1894). This sentence appears in a novel, embedded in a lengthy monologue delivered by the character M. Choulette, a 50-year-old Bohemian poet and drunkard whose "violent prose and savage mien were affectations." Id. at 6, 27-29, 94. Many legal rules in practice primarily affect a small portion of the population. For example, law in its "majestic equality" also imposes estate taxes that only the very wealthy are compelled to pay, and requires both urbanites and ruralites to comply with regulations on crop-dusting. It is instructive to treat Choulette's lament as a pleading invoking the Equal Protection Clause. According to that body of doctrine, proof of disproportionate impact on the poor (or any other group) is not sufficient to state a claim for relief; Choulette would also have to show that the legislature was motivated by discriminatory intent, and that the legitimate objectives the legislature was pursuing were not weighty enough to justify the disproportionate impact on the complaining group. Attorneys for the homeless are highly unlikely to prevail on an equal protection theory when challenging a restriction on outdoor sleeping or begging. See supra notes 13-14, 69-86 and accompanying text; infra notes 335-38, 395-401 and accompanying text. In general, a person concerned with broad questions of distributive justice should consider the impact of the entire system of laws, not narrow statutes in isolation.
147. See SKOGAN, supra note 22, at 56 (reporting +.88 correlation in assessments of street disorder among higher- and lower-income respondents, and +.87 correlation between blacks and whites). Rawls's Difference Principle accords particular concern to the "least advantaged members of society." JOHN RAWLS, A THEORY OF JUSTICE 76-80 (1971). A devotee of this principle might be willing to sacrifice the welfare of the many poor for the benefit of a few of the poorest (a category into which bench squatters are more likely than panhandlers to fit).
148. See GERALD D. SUTTLES, THE SOCIAL ORDER OF THE SLUM 73-83 (1968) (describing Addams area of Chicago).
149. See A. MITCHELL POLINSKY, AN INTRODUCTION TO LAW AND ECONOMICS 119-27 (2d ed. 1989);
150. Louis Kaplow & Steven Shavell, Why the Legal System is Less Efficient than the Income Tax in Redistributing Income, 23 J. LEGAL STUD. 667, 667-77 (1994). Although these authors focus on private law rules, their conclusions can be extended to encompass criminal law rules as well. There are, to be sure, dissenters.
151. See, e.g., Guido Calabresi, The Pointlessness of Pareto: Carrying Coase Further, 100 YALE L.J. 1211, 1223-27 (1991) (distributional issues can never be avoided unless one is willing to make interpersonal comparisons of utility);
152. Eric A. Posner, Contract Law in the Welfare State, 24 J. LEGAL STUD. 283 (1995) (defending restrictive contract law on ground that it helps deter excessive borrowing).
153. Federal outlays under major means-tested programs (excluding veterans pensions) increased from 0.53% of GNP in 1965 to 1.67% in 1975. Between 1975 and 1989, the percentage fluctuated between a low of 1.62% (1979) and a high of 1.86% (1983). A new peak of 1.95% was reached in 1990. GENE FALK & RICHARD RIMKUNAS, 1992 BUDGET PERSPECTIVES: FEDERAL SPENDING FOR THE SOCIAL WELFARE PROGRAMS tbl. 5.4 (Cong. Res. Serv. Rep. 91-280 EPW, Mar. 22, 1991).
154. These are the Social Security Disability Insurance program and the means-tested Supplemental Security Income program. In 1992, 3.5 million disabled workers were receiving SSDI benefits, and another 5.6 million individuals were receiving SSI benefits. See BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 1994, at 373, 376 (1994) [hereinafter STATISTICAL ABSTRACT 1994].
155. For a discussion of the Illinois program, see ROSSI, supra note 3, at 191-93 (stressing low level of benefits). Seven of the twelve regular panhandlers at Yale received General Assistance benefits; three of the seven also received food stamps. Goldstein, Panhandlers at Yale, supra note 13, at 309-10. In 1993, 80% of the residents at the Sunshine, the largest of the remaining Bowery lodging houses, were receiving public assistance. Alexander Kadvan, The Bowery Lodging House: The Forgotten Housing of the Poor 40 (May 14, 1993) (unpublished manuscript, on file with author).
156. OFFICE OF POLICY DEV. & RESEARCH, U.S. DEP'T OF HOUS. & URBAN DEV., A REPORT ON THE 1988 NATIONAL SURVEY OF SHELTERS FOR THE HOMELESS 2 (1989) [hereinafter NATIONAL SURVEY OF SHELTERS].
157. Pub. L. No. 100-77, 101 Stat. 482 (1987). On the evolution of this legislation, see Maria Foscarinis, Beyond Homelessness, 12 ST. LOUIS U. PUB. L. REV. 37 (1993). Because many McKinney Act programs are highly particularized, they are ripe for being folded into block-grant programs.
158. See infra text accompanying notes 132-36.
159. Nationwide expenditures by shelter operators increased fivefold between 1984 and 1988. See NATIONAL SURVEY OF SHELTERS, supra note 124, at 17. The homeless population grew at a slower rate. Christopher Jencks estimates that the number of single adults sleeping in public places rose from 86,000 in March 1980 to 144,000 in March 1990. See JENCKS, HOMELESS, supra note 1, at 17. According to Jencks, the number of single adults sleeping in shelters rose from 35,000 to 118,000 over the course of the same decade. Id. For the hypothesis that the increased supply of relatively high-quality shelters during the 1980s itself caused much of the increase in the shelter population, see Robert C. Ellickson, The Homelessness Muddle, PUB. INTEREST, Spring 1990, at 45, 45-46, 50-52 [hereinafter Homelessness Muddle].
160. See, e.g., Foote, supra note 19, at 604 (article published in 1956 that refers to "bums").
161. See infra text accompanying notes 270-72. The history of Callahan v. Carey, the key test case on the right to shelter in New York, suggests that Robert Hayes and his fellow advocates consciously sought to bring about this linguistic change. The trial judge's opinion makes clear that the plaintiffs' lawyers and experts had consistently employed the term "homeless" when referring to their clients. Although Judge Tyler occasionally uses that term on his own initiative, he generally refers to the Bowery men as "derelicts." Callahan v. Carey, No. 79-42582 (N.Y. Sup. Ct. Dec. 5, 1979), reprinted in N.Y. L.J., Dec. 11, 1979, at 10. By contrast, the 1981 consent decree that settled Callahan (by effectively requiring New York City to provide shelter to destitute men on demand) consistently refers to the plaintiffs as "homeless." Callahan v. Carey, No. 42582/79 (N.Y. Sup.
162. On the changing historical usage of the word "homelessness," see O'FLAHERTY, supra note 1, at 9-11 ("homelessness used to refer to a sociological status rather than a housing market condition").
163. A search of the DIALOG database revealed that the number of articles in the New York Times containing the term "homeless" or "homelessness" increased tenfold during the 1980s, from 148 articles in 1980; to 976 in 1985; to 1564 in 1990 (over four per day). The number dipped to 1376 in 1994.
164. Members of the first two groups lack regular access to a permanent dwelling and thus meet the conventional scholarly definition of homelessness. According to the most careful estimates that apply the scholarly definition, the number of homeless Americans at a given point in time ranged from roughly 250,000 to 400,000 during 1985-1990, a peak period. JENCKS, HOMELESS, supra note 1, at 16-17; ROSSI, supra note 3, at 81. During the Bush and Clinton administrations, officials of the Federal Department of Housing and Urban Development commonly used a point-estimate of 600,000, a figure derived from research by Martha Burt. See, e.g., Money to Aid Homeless, N.Y. TIMES, July 13, 1995, at B9 (reporting statement by HUD Secretary Henry G. Cisneros). For criticism of this figure, see JENCKS, HOMELESS, supra note 1, at 146 n.11. The Clinton administration also publicized flow estimates that count the number of different persons who met the scholarly definition of homelessness at any point in time over a period of years.
165. See Jason DeParle, Report to Clinton Sees Vast Extent of Homelessness, N.Y. TIMES, Feb. 17, 1994, at A1. These flow estimates, which are much larger, indicate that most individuals who have the experience of lacking regular access to a permanent dwelling have it only fleetingly.
166. In March 1990, about 45% of homeless single adults, and 98% of members of homeless families with children, were sleeping under roof in emergency shelters. JENCKS, HOMELESS, supra note 1, at 17.
167. These "street homeless" - perhaps 100,000-150,000 persons nationwide at any point - are almost exclusively single adults. They commonly sleep in relatively sheltered places, such as vehicles, bus stations, all-night movie theaters, and abandoned buildings. Some street persons use outdoor sites under bridges and in parks and entryways, more commonly in warm weather than in cold. See ROSSI, supra note 3, at 63 (estimating that number of homeless "[o]n streets or in public places" in Chicago fell by roughly 62% between early fall 1985 and mid-winter 1986).
168. See Goldstein, Panhandlers at Yale, supra note 13, at 308 (relating that 8 of 12 chronic panhandlers regularly lived in conventional dwellings); Spector, Vouchers for Panhandlers, supra note 5, at 59-60 (reporting that 12 of 14 Yale regulars resided in conventional housing); Jon Hilkevitch, Evanston Fights Panhandlers - with a Smile, CHI. TRIB., May 27, 1994, at 1, 19 (informal survey by Evanston police of Evanston panhandlers revealed that 29 of 36 had permanent addresses and were not homeless);
169. see also Cynthia R. Mabry, Brother Can You Spare Some Change? - And Your Privacy Too?: Avoiding a Fatal Collision Between Public Interests and Beggars' First Amendment Rights, 28 U.S.F. L. REV. 309, 325 n.110 (1994) (citing sources that identify beggars who were not homeless). But see O'FLAHERTY, supra note 1, at 94 (measured by scholarly definition of homelessness, 81% of 74 panhandlers surveyed in Manhattan had been homeless the night before). There is little published evidence about where daytime bench squatters spend their nights or, for that matter, about street people in general. See id. at 81 ("Not even the most basic facts are known . . . .").
170. See supra note 103.
171. See infra note 294.
172. See infra notes 288-95 and accompanying text.
173. O'FLAHERTY, supra note 1, at 277-78, 297-98. In light of its shortcomings, the label homeless may decline in use as the 1990s progress.
174. Having attributed authorship of this phrase to others, I use this opportunity to acknowledge that John Griffiths coined "legal centralism" in an unpublished paper written in 1979. See Marc Galanter, Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law, 19 J. LEGAL PLURALISM 1, 1 n.1 (1981).
175. This taxonomy is derived from ROBERT C. ELLICKSON, ORDER WITHOUT LAW 123-36 (1991) [hereinafter ORDER WITHOUT LAW].
176. On the importance of teaching children self-control, see James Q. Wilson, What to Do About Crime, COMMENTARY, Sept. 1994, at 25, 32-33.
177. But cf. JAMES Q. WILSON, THE MORAL SENSE 5-13 (1993) [hereinafter WILSON, MORAL SENSE] (contending that much of morality is innate).
178. See SNOW & ANDERSON, supra note 71, at 159-60 (some Austin street people were too prideful to beg); id. at 341 n.16 (citing Tucson study in which panhandlers had repeatedly stated that practice was "embarrassing"). While some of the street people at Yale felt that panhandling damaged their pride, a few reported that they would regard a minimum-wage job in a fast-food restaurant as even more demeaning. Goldstein, Panhandlers at Yale, supra note 13, at 304-05, 318-19.
179. See infra text accompanying notes 197-206.
180. See infra text accompanying notes 211-16, 225-29.
181. See ROSSI, supra note 3, at 1-8 (profiles of 10 homeless persons).
182. See supra note 143.
183. See Goldstein, Panhandlers at Yale, supra note 13, at 325-26 (pedestrians commonly ignore panhandlers' entreaties, but only occasionally verbally chastise them).
184. ORDER WITHOUT LAW, supra note 141, at 143-44.
185. Id. at 211-29.
186. See supra notes 42-86.
187. For an introduction to this concept, see RICHARD A. MUSGRAVE & PEGGY B. MUSGRAVE, PUBLIC FINANCE IN THEORY AND PRACTICE 49-55 (5th ed. 1989).
188. JACOBS, DEATH AND LIFE, supra note 22, at 31-32.
189. For a sophisticated discussion of how merchants, police, pedestrians, and panhandlers informally regulate panhandling, see Goldstein, Panhandlers at Yale, supra note 13, at 326-51.
190. See, e.g., Axel Fransen, Group Size and One-Shot Collective Action, 7 RATIONALITY & SOC'Y 183 (1995);
191. B. Latane & S. Nida, Ten Years of Group Site and Helping, 89 PSYCHOL. BULL. 308 (1981); Wilson & Kelling, supra note 23, at 38. This is sometimes referred to as the "Kitty Genovese" effect, after an incident involving 38 bystanders who did nothing to stop a murder. See WILSON, MORAL SENSE, supra note 142, at 36. It is conceivable, of course, that even though the probability of any particular onlooker taking action would decline with group size, the probability of someone acting would increase. See, e.g., Fransen, supra, at 198 (reporting experimental results of this sort).
192. Architectural and social variables may affect the amount of informal monitoring. See OSCAR NEWMAN, DEFENSIBLE SPACE: CRIME PREVENTION THROUGH URBAN DESIGN 51-117 (1972) (how designers can extend informal private realms into public spaces);
193. Ralph B. Taylor et al., Attachment to Place: Discriminant Validity, and Impacts of Disorder and Diversity, 13 AM. J. COMMUNITY PSYCHOL. 525, 539-40 (1985) (social diversity is correlated with both weaker neighborhood attachments and perceptions of greater disorder).
194. See supra text accompanying note 153.
195. On diffuse social enforcement of norms, see ORDER WITHOUT LAW, supra note 141, at 236-39.
196. JACOBS, DEATH AND LIFE, supra note 22, at 35-37. One study found that owner-operators of stores are more vigilant than the employees of absentee owners. See Goldstein, Panhandlers at Yale, supra note 13, at 331-35. Relatedly, persons who regularly use a particular sidewalk have a greater interest in enforcing order than occasional users do. Indeed, unaggressive chronic panhandlers may aid in police efforts to curb boisterous transients. Id. at 345-46. Most chronic panhandling, however, occurs in well-trafficked locations, where there are likely to be numerous other eyes upon the street. A chronic panhandler is therefore unlikely to make a net contribution to street order.
197. See SKOGAN, supra note 22, at 173 (University's role in achieving "high levels of order" in Hyde Park).
198. See Young v. New York City Transit Auth., 903 F.2d 146 (2d Cir.), cert. denied, 498 U.S. 984 (1990); Dawidoff, supra note 57, at 36 (reproduction of that which urged, in part, "Give to the charity of your choice, but not on the subway"); Finder, Panhandling is Down, supra note 5, at 46.
199. See EDWARD H. MCKINLEY, MARCHING TO GLORY: THE HISTORY OF THE SALVATION ARMY IN THE UNITED STATES (1980);
200. WILLIAM MCSHEEHY, SKID ROW 17-33 (1979) (discussing rescue missions).
201. But cf. Reginald W. Bibby & Armand L. Mauss, Skidders and Their Servants: Variable Goals and Functions of the Skid Row Rescue Mission, 13 J. SCI. STUDY RELIGION 421, 430-31 (1974) (noting that majority of mission patrons regard most "converters" as frauds and most mission leaders as predominantly interested in making money). On the fate of the missions, see infra text accompanying notes 273-75.
202. In 1994, voucher programs were underway in Berkeley, Los Angeles, New Haven, Portland (Oregon), and a handful of other cities. See Spector, Vouchers for Panhandlers, supra note 5, at 27-48. Typically, a panhandler can redeem vouchers with a participating local merchant in return for food and other selected commodities. When initiated, voucher programs tend to be supported by unlikely allies: those who hope to increase total transfers to panhandlers, and those who want to quell panhandling. Id. at 8-9.
203. See Clifford Krauss, Five Youths Are Held in the Fiery Death of a Homeless Man, N.Y. TIMES, Aug. 4, 1995, at A1 (describing gang whose youthful members hurt homeless people to relieve boredom);
204. Richard Pérez-Peña, Youths Injure Two Sleeping Homeless Men, N.Y. TIMES, Dec. 4, 1993, at 25 (most assaults on homeless are thought to be committed by persons under age 20). Half of the panhandlers Goldstein interviewed had been mugged during the previous year; one sometimes took a taxicab home at night to avoid attack. Goldstein, Panhandlers at Yale, supra note 13, at 306, 316.
205. See SKOGAN, supra note 22, at 125-57 (discussing role of community organizations in stemming disorder); George W. Liebman, Devolution of Power to Community and Block Associations, 25 URB. LAW. 335, 357-62 (1993) (discussing role of community associations in law enforcement).
206. For an introduction to the literature on block organizations, see generally Donald G. linger & Abraham Wandersman, Neighboring and Its Role in Block Organizations: An Exploratory Report, 11 AM. J. COMMUNITY PSYCHOL. 291 (1983).
207. See Lawrence O. Houstoun, Jr., Betting on BIDs, URB. LAND, June 1994, at 13, 16 (estimating number of BIDs in U.S. and Canada at 1000);
208. Thomas J. Lueck, Business Districts Grow at Price of Accountability, N.Y. TIMES, Nov. 20, 1994, at A1 (New York City alone has 33 BIDs, with 30 more in the works). BIDs are descendants of the venerable special-assessment district.
209. See, e.g., John King, Businesses Go on the Offensive - Reclaiming the City's Streets, S.F. CHRON., Dec. 28, 1993, at A1, A4 (describing BID that paid for uniformed, nonpolice patrols near Union Square). The typical BID spends about 20% of its budget on security operations, which may include a force of uniformed patrol officers. Houstoun, supra note 166, at 13, 17. For statutory authorization of these activities, see, e.g., CAL. STS. & HIGH. CODE § 36613 (West Supp. 1995) (listing "security" as a BID activity); N.Y. GEN. MUN. LAW § 980-c(c)(5) (McKinney Supp. 1995) (similar).
210. One of the best-known BIDs is the Grand Central Partnership in Midtown Manhattan, described in Alan S. Oser, Spreading the Gospel of Improvement Districts, N.Y. TIMES, Oct. 31, 1993, § 10, at 8. The Partnership became embroiled in controversy when the Coalition for the Homeless put forward several former Partnership workers, themselves homeless persons, who alleged that they had been organized into "goon squads" to intimidate and beat street people whom the Partnership wished to relocate. The Partnership's leader among its outreach workers denied these charges. In a report commissioned by the Partnership, Robert Hayes, a founder of the Coalition for the Homeless, called the goon squad charges "fanciful" and "reek[ing] of demagoguery."
211. See James Traub, Street Fight, NEW YORKER, Sept. 4, 1995, at 36, 40. The Partnership, however, subsequently instituted a number of reforms.
212. See Bruce Lambert, Grand Central Partnership Limits Help for Homeless, N.Y. TIMES, Nov. 6, 1995, at B3.
213. See Amy Dru Stanley, Beggars Can't Be Choosers: Compulsion and Contract in Postbellum America, J. AM. HIST. 1265, 1293 (1992) (nineteenth-century reformers distributed cards exhorting pedestrians not to give to beggars).
214. See Timothy Egan, In Three Progressive Cities. Stern Homeless Policies, N.Y. TIMES, Dec. 12, 1993, at 26 (on Portland (Oregon) BID'S employment of "guides" who encourage pedestrians to give vouchers, not cash, to panhandlers);
215. Patt Morrison, Uneasy Street, L.A. TIMES MAG., Jan. 2, 1994, at 6 (trailers shown in Los Angeles movie houses encourage viewers to make donations to charities that aid homeless, but not to homeless themselves);
216. Robert L. Rose, Evanston Decides How to Handle Its Panhandlers: With Kid Gloves, WALL ST. J., Aug. 1, 1994, at B1 [hereinafter Rose, Evanston Decides] (City of Evanston's paid "interveners" urge persons whom they observe contributing to beggars to give instead to social-service providers listed in brochure); cf. RIGHT TO REMAIN NOWHERE, supra note 4, at 68 (on "Cincinnati Cares" program that asks merchants to display canisters into which passersby can drop coins in lieu of giving to panhandlers). See generally Spector, Vouchers for Panhandlers, supra note 5, at 10-27.
217. See ERIC H. MONKKONEN, POLICE IN URBAN AMERICA 1860-1920, at 24 (1981).
218. See supra text accompanying note 153.
219. But cf. Bruce L. Benson, Are Public Goods Really Common Pools? Considerations of the Evolution of Policing and Highways in England, 32 ECON. INQUIRY 249 (1994) (historical examples of private production of public order).
220. See MONKKONEN, supra note 170, at 129-47.
221. See SKOGAN, supra note 22, at 85-89; Dawidoff, supra note 57, at 40 (many New York transit police are unenthusiastic about arresting panhandlers in subway cars); see also Goldstein, Panhandlers at Yale, supra note 13, at 339-40, 349 (finding that New Haven police in 1990s regard violence and drugs as more attention-worthy than panhandling, but occasionally do make arrests for disorderly conduct).
222. See infra text accompanying notes 285-300.
223. Egon Bittner, The Police on Skid-Row: A Study of Peace Keeping, 32 AM. SOC. REV. 699, 708-09 (1967); see also Goldstein, Panhandlers at Yale, supra note 13, at 346-47.
224. See supra text accompanying notes 155-59.
225. See Streetwatch v. National R.R. Passenger Corp., 875 F. Supp. 1055, 1057 (S.D.N.Y. 1995) (describing Amtrak's rules for police enforcement in Penn Station, which require warning followed by five-minute cooling-off period prior to arrest or ejection); cf. Daniel L. Koffsky, Note, Orders to Move On and the Prevention of Crime, 87 YALE L.J. 603 (1978) (focusing on suspicious conduct that portends more serious crime).
226. The New York City Transit Authority police generally follow this sequence when dealing with subway panhandlers. See Finder, Panhandling is Down, supra note 5, at 46; see also Wilson & Kelling, supra note 23, at 35 (function of old vagrancy law was to enable police officer to remove disorderly person after informal methods had failed).
227. For authorization of this remedy, see SANTA MONICA, CAL., MUN. CODE § 4.08.093 (1995) (authorizing issuance of "stay away" orders to repeat violators of park-closing ordinance). Cf. People ex rel. Gallo v. Acuna, 40 Cal. Rptr. 2d 589 (Ct. App.), review granted, 899 P.2d 66 (Cal. 1995) (partially sustaining preliminary injunction against public-nuisance activities in four-block neighborhood by gang members). These orders might be enforced by means of criminal contempt proceedings. For a good introduction to the many constitutional issues that this remedial approach poses, see Christopher S. Yoo, Comment, The Constitutionality of Enjoining Criminal Street Gangs as Public Nuisances, 89 NW. U. L. REV. 213 (1994).
228. See Teir, supra note 21, at 292-301 (reviewing several millennia of history of regulation of begging). The ancient Greeks debated the definition of unacceptable public behavior and the problems associated with the suppression of offensive speech or conduct. See Loper v. New York City Police Dep't, 802 F. Supp. 1029, 1030-31 (S.D.N.Y. 1992), aff'd, 999 F.2d 699 (2d Cir. 1993). On the history of anti-begging legislation in the United States, see sources cited infra notes 240-387.
229. 2 PLATO, LAWS bk. XI, at 465 (E. Capps et al. eds. & R.G. Bury trans., G.P. Putnam's Sons 1926) ("There shall be no beggar in our State; ... he shall be driven across the border by the country-stewards, to the end that the land may be wholly purged of such a creature.").
230. See MAURICE CRANSTON, JOHN LOCKE: A BIOGRAPHY 424-25 (1957).
231. The "dangerous class," the social scum, that passively rotting mass thrown off by the lowest layers of old society, may, here and there, be swept into the movement by a proletarian revolution; its conditions of life, however, prepare it far more for the part of a bribed tool of reactionary intrigue. Karl Marx & Friedrich Engels, The Communist Manifesto (1848), in KARL MARX: SELECTED WRITINGS 221, 229 (David McLellan ed., 1977).
232. 4 HENRY MAYHEW, LONDON LABOUR AND THE LONDON POOR 23-27 (Dover Publications 1968) (1861-62).
233. This statement is based on the rising incomes of poor persons over the course of the past century. For data on the trend since 1960, see sources cited infra note 196.
234. See MONKKONEN, supra note 170, at 80-81, 84-85 (arrests for violent crime and vagrancy-type offenses peaked around 1870); SKOGAN, supra note 22, at 6 ("marked decline" in drunkenness and vagrancy beginning after 1870). But cf. Stanley, supra note 168, at 1269, 1273-74 (high incidence of begging in U.S. cities in 1870s prompted reformers to adopt variety of measures against it).
235. See JEROME H. SKOLNICK & JAMES J. FYFE, ABOVE THE LAW: POLICE AND THE EXCESSIVE USE OF FORCE 218 (1993) (1940s and 1950s were period of "unparalleled public safety. Social disorder was minimal.").
236. Michael H. Schill, Race, the Underclass, and Public Policy, 19 LAW & SOC. INQUIRY 433, 433-37, 438 n.6 (1994) (book review), provides a succinct introduction to these debates.
237. See also Ronald B. Mincy, The Underclass: Concept, Controversy, and Evidence, in CONFRONTING POVERTY 109, 122-32 (Sheldon H. Danziger et al. eds., 1994) [hereinafter CONFRONTING POVERTY] (discussing various approaches to defining underclass).
238. See ROSSI, supra note 3, at 104-16 (reporting extreme poverty of Chicago homeless); Goldstein, Panhandlers at Yale, supra note 13, at 300-05 (on joblessness and poverty of panhandlers). But cf. O'FLAHERTY, supra note 1, at 132-35, 149-54, 209 (doubting link between prevalence of poverty and prevalence of street and shelter homelessness).
239. Sheldon H. Danziger & Daniel H. Weinberg, The Historical Record: Trends in Family Income, Inequality, and Poverty, in CONFRONTING POVERTY, supra note 189, at 18, 26-27 col. 3. Nevertheless, scholars across a broad ideological spectrum agree that the incidence of "latent" or "pretransfer" poverty rose somewhat after 1970.
240. See, e.g., CHARLES MURRAY, LOSING GROUND 64-65 (1984); Danziger & Weinberg, supra, at 26-27 col. 5. Murray believes that the welfare state's perversities are largely responsible for this backsliding. Others stress that job markets have increasingly disadvantaged those with few skills. See Mincy, supra note 189, at 117;
241. Kevin M. Murphy & Finis Welch, Industrial Change and the Rising Importance of Skill, in UNEVEN TIDES: RISING INEQUALITY IN AMERICA 101, 130-32 (Sheldon Danziger & Peter Gottschalk eds., 1993).
242. All commentators agree that inequality between rich and poor has increased in the United States since the early 1970s. The issue at hand, however, is not the trend in inequality, but in the absolute (inflation-adjusted) incomes of the poorest Americans.
243. JENCKS, RETHINKING, supra note 79, at 154-55 (between 1963 and 1987, proportion of whites in this situation increased from about 1% to about 2%, and of blacks, from just under 4% to about 7%).
244. See supra text accompanying notes 121-27.
245. See Rudy Fichtenbaum, The Productivity Slowdown and the Underground Economy, 28 Q.J. BUS. & ECON., Summer 1989, at 78, 78.
246. But cf. Morton Paglin, The Underground Economy: New Estimates from Household Income and Expenditure Surveys, 103 YALE L.J. 2239, 2249 (1994) (estimating that underground economy fell from 10.2% of Gross Domestic Product in 1984 to 8.1% in 1992).
247. Daniel T. Slesnick, Gaining Ground: Poverty in the Postwar United States, 101 J. POL. ECON. 1, 27-34 (1993).
248. Some of the most interesting data can be found in Susan E. Mayer & Christopher Jencks, Recent Trends in Economic Inequality in the United States: Income Versus Expenditures Versus Material Well-being, in POVERTY AND PROSPERITY IN THE USA IN THE LATE TWENTIETH CENTURY 121, 149-77 (Dimitri B. Papadimitriou & Edward N. Wolff eds., 1993). Regrettably, Mayer and Jencks's data end in the early 1980s. They report trends in the material well-being of households in the poorest decile of the population (not among the poorest 1% of individuals). By all measures, households in that decile gained in material wherewithal from 1960 to 1983. For example, the proportion residing in housing with full bath facilities increased from 54% in 1960 to 80% in 1970, to 92% in 1980, and to 94% in 1983. Id. at 156-57, 162. O'Flaherty notes that the decline in the number of low-quality lodging houses in cities such as Chicago, Newark, and New York during 1970-1990 suggests a drop in the number of destitute individuals. O'FLAHERTY, supra note 1, at 138-47.
249. For a more expansive set of criteria and a more varied set of trends, see JENCKS, RETHINKING, supra note 79, at 143-203.
250. See Robert T. Zozus & Melvin Zax, Perceptions of Childhood: Exploring Possible Etiological Factors in Homelessness, 42 HOSP. & COMMUNITY PSYCHIATRY 535 (1991) (children growing up in emotionally impoverished households are predisposed to later homelessness). On the handicaps of growing up in an underclass neighborhood, see Schill, supra note 189, at 439-40;
251. Elijah Anderson. The Code of the Streets, ATLANTIC MONTHLY, May 1994, at 81.
252. On social poverty among the homeless, see ROSSI, supra note 3, at 165-77 (detailing fragility of ties to family and friends); SNOW & ANDERSON, supra note 71, at 259-65 (noting that Austin street people were conspicuously lacking in family support). On the poverty and social isolation of shopping bag women, a group analogous to bench squatters, see ANNE-MARIE ROUSSEAU, SHOPPING BAG LADIES: HOMELESS WOMEN SPEAK ABOUT THEIR LIVES (1981).
253. See, e.g., WHITE, supra note 101, at 88-92, 245-64.
254. The number of related children living in poor, female-headed family households rose from 4.7 million in 1970 to 8.0 million in 1992. Compare BUREAU OF THE CENSUS. U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 1977, at 454 (1977) with STATISTICAL ABSTRACT 1994, supra note 122, at 478.
255. JENCKS, RETHINKING, supra note 79, at 130 (citing figures from BUREAU OF THE CENSUS, Marital Status and Living Arrangements, March 1985. in CURRENT POPULATION REPORTS, Series P-20, No. 410, at 71 (Government Printing Office, 1986)). The proportion of white children living in fatherless households rose from 9% in 1970 to 18% in 1990.
256. Calculated from BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 1992, at 55 (1992) [hereinafter STATISTICAL ABSTRACT 1992];
257. see also Irwin Garfinkel & Sara McLanahan, Single-Mother Families, Economic Insecurity, and Government Policy, in CONFRONTING POVERTY, supra note 189, at 205, 210 (of all families with children, the proportion headed by single mothers rose from 8% in 1960 to almost 25% in 1990). The percentages of children born out of wedlock are higher still. For those trends, see JENCKS, RETHINKING, supra note 79, at 192-94.
258. Garfinkel & McLanahan, supra note 202, at 207.
259. Seven said that no father had been present; two refused to discuss their families. Goldstein, Panhandlers at Yale, supra note 13, at 300.
260. See STATISTICAL ABSTRACT 1994, supra note 122, at 66 (in both 1970 and 1993 about 3% of children under 18 years old were living with neither parent); see also Irving Piliavin et al., Tracking the Homeless, FOCUS, Winter 1987-88, at 20, 22 (38% of homeless in Minneapolis sample had experienced some form of out-of-home care as children, about 10 times the rate to be expected from a representative U.S. sample).
261. For a gripping narrative that illustrates this risk, see William Finnegan, Out There (pts. 1 & 2), NEW YORKER, Sept. 10, 1990, at 51;
262. William Finnegan, NEW YORKER, Sept. 17, 1990, at 60.
263. See sources cited in Mincy, supra note 189, at 128 (discussing 1970-1980 trends).
264. John D. Kasarda, Inner-City Concentrated Poverty and Neighborhood Distress: 1970 to 1990, 4 HOUSING POL'Y DEBATE 253, 256 (1993).
265. Id. at 263.
266. In Chicago, 56.6% of the street homeless were found to be between 25 and 44 years of age; by comparison, 37.7% of Chicago's entire adult population fell within this age bracket. ROSSI, supra note 3, at 121.
267. See ALICE S. BAUM & DONALD W. BURNES, A NATION IN DENIAL: THE TRUTH ABOUT HOMELESSNESS 20-23 (1993); JENCKS, HOMELESS, supra note 1, at 41-48. But see O'FLAHERTY, supra note 1, at 248-62 (effect of crack on incidence of homelessness was small at most). Alcohol abuse appears not to have risen in the United States during recent decades. See JENCKS, HOMELESS, supra note 1, at 41.
268. JENCKS, HOMELESS, supra note 1, at 43.
269. See Dawidoff, supra note 57, at 52 (many, perhaps most, panhandlers in New York City subway system are substance abusers); Goldstein, Panhandlers at Yale, supra note 13, at 305 (majority of panhandlers interviewed had chemical dependencies); Rose, Evanston Decides, supra note 169 (most Evanston panhandlers are drug or alcohol addicts).
270. JENCKS, HOMELESS, supra note 1, at 43; see also Kaufman, supra note 2, at 34 (latest Bowery arrivals are younger male crack addicts, who "appear to have lived their whole lives on the margins, without much memory of family or friendship").
271. See Pamela J. Fischer & William R. Breakey, The Epidemiology of Alcohol, Drug, and Mental Disorders Among Homeless Persons, 46 AM. PSYCHOLOGIST 1115 (1991) (comprehensive review of scores of studies). Up to 25% suffer from both alcohol and mental disorders. Id. at 1116. "Men are more likely to be singly diagnosed alcoholics, whereas women are more likely to have a sole mental disorder Id. Little is known about how the population of panhandlers and bench squatters differs in these respects from the larger homeless population.
272. The most alarming data come from a California study finding that a majority of homeless substance abusers were addicted to both drugs and alcohol, and that three-quarters of those with serious mental disorders abused substances as well. See GEORGES VERNEZ ET AL., REVIEW OF CALIFORNIA'S PROGRAM FOR THE HOMELESS MENTALLY DISABLED 18 (1988).
273. See ROSSI, supra note 3, at 117-18 (81.8% of persons in Chicago street sample were male).
274. Rossi's sources suggest that on the order of 90% of homeless adults are not currently married. Id. at 129-31. Of his Chicago street sample, 96.6% were not currently married. Id. at 129. About 70% of the adult males in the most relevant age group are married. The disproportionately high rate of homelessness among unmarried men can be calculated from these figures.
275. Calculated from BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 1971, at 32 (1971) [hereinafter STATISTICAL ABSTRACT 1971].
276. Calculated from STATISTICAL ABSTRACT 1992, supra note 202, at 43.
277. Calculated from STATISTICAL ABSTRACT 1971, supra note 219, at 32.
278. Calculated from BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 1981, at 38 (1981).
279. See STATISTICAL ABSTRACT 1992, supra note 202, at 43.
280. Jencks examined trends in marriage rates from 1969 to 1989 among men aged 21-64 and asserts that the rate fell sharply only among affluent men. See JENCKS, HOMELESS, supra note 1, at 51-55. But see JENCKS, RETHINKING, supra note 79, at 133 (proportion of black men aged 30-44 living with a wife fell from 77% in 1960 to 64% in 1980).
281. STATISTICAL ABSTRACT 1994, supra note 122, at 215.
282. Id.
283. ROSSI, supra note 3, at 121.
284. For trends in prison releases, see O'FLAHERTY, supra note 1. at 265 tbl. 14-2.
285. See id. at 265-66. Slightly over 40% of the homeless report having spent time in either jail or prison. ROSSI, supra note 3, at 165. How the street population differs in this respect is not known.
286. For a careful and colorful depiction of the Omaha Skid Row during this period, see John C. Schneider, Skid Row as an Urban Neighborhood, 1880-1960, 9 URBANISM PAST & PRESENT 10, 11-13 (1984).
287. For more expansive discussions, see BAHR, supra note 2; CHARLES HOCH & ROBERT A. SLAYTON, NEW HOMELESS AND OLD (1989); ROSSI, supra note 3, at 17-33.
288. This is not to say that the police never made arrests for public disorder in Skid Row. They frequently did, partly to protect the arrested persons from predation and exposure to the elements. See Bittner, supra note 176, at 711-12. Even as late as the 1970s, many police departments were still sweeping Skid Rows of street drunks. See infra note 451 (on Los Angeles practices). The essential point is that the police's informal rules for street behavior were much more permissive in Skid Row than in the central business district.
289. One can only conjecture how often nightsticks were used to enforce these orders. One source, citing no authority, associates police violence on behalf of public order with the period before, not after, World War II. See Wilson & Kelling, supra note 23, at 33.
290. See O'FLAHERTY, supra note 1, at 270-72 (in 1950s and 1960s, New York police gave street people much leeway to beg in Bowery because "'if you were a bum, it was your place'" (quoting Richard Kopperdahl)); JAMES Q. WILSON, VARIETIES OF POLICE BEHAVIOR 147 (1968) ("When the famous [Albany, N.Y.] 'Gut' was flourishing, a large number of arrests for intoxication were required to maintain some semblance of order and, more important, keep the carousers from leaving the area to annoy the 'decent people' elsewhere in the city."). Foote quotes a magistrate's statement to a Philadelphia vagrancy defendant: "'What are you doing in this part of town? You stay where you belong; we've got enough bums down here without you.'" Foote, supra note 19, at 606; see also Bittner, supra note 176, at 704 (police had implicit duty to contain Skid Row); Foote, supra note 19, at 604-05, 631-32 (describing periodic campaigns during 1950s to clear vagrants and habitual drunkards from Philadelphia's city center); Schneider, supra note 230, at 17 ("The police were clearly more tolerant of certain behavior on skid row than they were elsewhere . . . ."). As late as 1991, the Los Angeles police were reported still to have an affirmative policy of attempting to contain the down-and-out to the Skid Row area east of Spring Street. See Goetz, supra note 3, at 545.
291. American history is replete with analogous efforts to sequester the mentally ill in confined locales: workhouses, poorhouses, and jails in Colonial times; large rural asylums during the nineteenth century. See LELAND V. BELL, TREATING THE MENTALLY ILL: FROM COLONIAL TIMES TO THE PRESENT (1980);
292. ALBERT DEUTSCH, THE MENTALLY ILL IN AMERICA (1949).
293. Some state supreme courts were at the leading edge of the reform movement. See, e.g., Parker v. Municipal Judge, 427 P.2d 642 (Nev. 1967) (Las Vegas vagrancy ordinance denied due process because it criminalized status of poverty); Fenster v. Leary, 229 N.E.2d 426 (N.Y. 1967) (New York vagrancy statute violated Due Process Clause).
294. See MONKKONEN, supra note 170, at 103 (in 1880, 62.5% of arrests in 18 large cities were for "drunkenness, drunk and disorderly, suspicion, vagrancy, or corner lounging"); SKOGAN, supra note 22, at 89 (in 1960, 52% of all nontraffic arrests in U.S. were for drunkenness, disorderly conduct, vagrancy, and suspicion; by 1985, this percentage had fallen to 16%). In 1884-1885 in Boston, drunkenness alone was the basis for over half the total of 28,932 arrests. The figures in other selected arrest categories were: common beggars (7), disorderly (514), idle and disorderly (214), insane (275), and vagrancy (250). ROGER LANE, POLICING THE CITY: BOSTON 1882-1885, at 232-34 (1967). One source reports that New York City recorded over a million arrests for vagrancy in 1877, a suspiciously high figure. See Stanley, supra note 168, at 1280.
295. This may no longer be true. A Gallup Organization survey conducted in March 1994 asked respondents whether they had a "great deal/quite a lot" of confidence in certain institutions. Some 55% of the people polled accorded the police this level of trust. The Supreme Court attracted this degree of support from 42%. The bottom-ranked institution was the "criminal justice system," which tallied 15%. International Comparisons, AM. ENTERPRISE, Sept./Oct. 1994, at 92.
296. See supra text accompanying note 121.
297. See MODEL PENAL CODE § 250.6 cmt. 1, at 383-86 (1980); see also sources cited infra note 387. Jeffrey S. Adler, A Historical Analysis of the Law of Vagrancy, 27 CRIMINOLOGY 209 (1989), provides an extensive bibliography.
298. See Foote, supra note 19, at 609.
299. 405 U.S. 156 (1972). Two preceding decisions from the state courts are cited supra note 236.
300. Papachristou, 405 U.S. at 164. Douglas's opinion echoes many of the themes he sounded a dozen years before in Douglas, supra note 19. Perhaps because he himself "rode 'the rods'" in his youth, id. at 4, his article praises "men of the open road . . . the heroes of much of our great literature," id. at 2. In Douglas's eyes, the archetypal street person was an adventurous and casually employed hobo, not a chronic panhandler or bench squatter.
301. See supra note 26 and accompanying text.
302. Papachristou, 405 U.S. at 170.
303. See Robert C. Post, Reconceptualizing Vagueness: Legal Rules and Social Orders, 82 CAL. L. REV. 491, 496-98 (1994) [hereinafter Post, Reconceptualizing Vagueness] (interpreting Papachristou as holding that Jacksonville police could not constitutionally seek to enforce "middle-class virtues" on streets).
304. David Whitford, Despite Decriminalization Drunks Still Clog Our Nation's Jails, CORRECTIONS MAG., Apr. 1983, at 31, 31.
305. See supra note 237.
306. On this doctrine, see infra text accompanying notes 443-51.
307. Easter v. District of Columbia, 361 F.2d 50 (D.C. Cir. 1966); Driver v. Hinnant, 356 F.2d 761 (4th Cir. 1966).
308. 392 U.S. 514 (1968).
309. See infra text accompanying notes 447-51.
310. See, e.g., CAL. PENAL CODE § 647(ff) (West Supp. 1995) (added 1971) (providing for protective custody, not criminal prosecution, of persons found drunk in public); CONN. GEN. STAT. § 19a-126c (1995) (enacted 1974) (similar). In New Haven in the early 1990s, indigent inebriates discovered on the street were not arrested but rather transported by ambulance to a hospital emergency room. The Yale-New Haven Hospital took in about 2800 drunks in 1993, at a total public cost of $900,000. Abram Katz, Indigent Drunks Tax Hospitals, NEW HAVEN REG., Jan. 23, 1994, at Al. WHITE, supra note 101, at 57-83, provides an inside look at detoxification programs for alcohol and drug abusers.
311. 349 F. Supp. 1078 (E.D. Wis. 1972), vacated, 414 U.S. 473, on remand, 379 F. Supp. 1376 (E.D. Wis. 1974), vacated, 421 U.S. 957 (1975), on remand, 413 F. Supp. 1318 (E.D. Wis. 1976).
312. 422 U.S. 563 (1975).
313. See JENCKS, HOMELESS, supra note 1, at 31-32.
314. Id. at 138. An overview of the deinstitutionalization movement may be found in id. at 21-40.
315. O'FLAHERTY, supra note 1, at 230 tbl. 12-1 (numbers rounded off). Interpretation of these data is tricky because during the same time period there was a sharp rise in the populations of prisons, nursing homes, and other institutions that house some mentally ill persons. Stressing these substitutions, O'Flaherty argues that the effects of deinstitutionalization have been much exaggerated. Id. at 226-47.
316. It is estimated that over 40% of the homeless in the New York City subway system, an analogous landing spot, are mentally ill. See George L. Kelling & Catherine M. Coles, Disorder and the Court, PUB. INTEREST, Summer 1994, at 57, 60. Most surveys find that at least 20% to 30% of homeless individuals are afflicted in this way. See Fischer & Breakey, supra note 215, at 1122.
317. PETER H. SCHUCK, SUING GOVERNMENT: CITIZEN REMEDIES FOR OFFICIAL WRONGS 47-51 (1983) (on evolution of § 1983). Because federal statisticians lump all civil rights suits in a single category, scholars have had difficulty pinpointing trends in the number of § 1983 actions. None would dispute, however, that the number has increased manyfold since 1960. See id. at 199-201;
318. cf. Theodore Eisenberg & Stewart Schwab, The Reality of Constitutional Tort Litigation, 72 CORNELL L. REV. 641, 665-66 (1987) (finding increase, but not explosion, in numbers of constitutional tort actions from 1975 to 1984).
319. 365 U.S. 167 (1961).
320. Id. at 172.
321. Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
322. Monell v. Department of Social Servs., 436 U.S. 658 (1978).
323. See, e.g, Blair v. Shanahan, 795 F. Supp. 309 (N.D. Cal. 1992), aff'd, 38 F.3d 1514 (9th Cir. 1994) (former panhandler's § 1983 claims against five officials and city for unconstitutional arrest settled by city for $4000); RIGHT TO REMAIN NOWHERE, supra note 4, at 55-56, 58 (64 campers wrongfully arrested at Santa Ana civic center settled with city for about $400,000); infra note 367. Some 200 to 300 § 1983 damage actions are filed each year against the City of Los Angeles Police Department, mostly without success. SKOLNIK & FYFE, supra note 188, at 200-04 (claiming developments in § 1983 law have significantly reduced police violence).
324. See generally SCHUCK, supra note 260, at 85-88 (discussing wide variety of state and local indemnification policies); Project, Suing the Police in Federal Court, 88 YALE L.J. 781, 810-12 (1979) (discussing municipal insurance and indemnification policies).
325. See, e.g., supra note 256 and accompanying text (on deinstitutionalization of violent mental patients).
326. There is disagreement about how much effect these sorts of rulings ultimately had on police behavior. Many are skeptical of the influence of formal law. See, e.g., O'FLAHERTY, supra note 1, at 267-74; Goldstein, Panhandlers at Yale, supra note 13, at 351-55. But cf. SKOLNIK & FYFE, supra note 188, at 200-05 (Supreme Court decisions probably reduced police violence significantly).
327. Equating this historical period with the 1980s is a convenient, if rough, simplification.
328. See supra notes 128-31 and accompanying text. These events and the history of the cause are recounted in WHITE, supra note 101, at 221-42.
329. See, e.g., FRED BLOCK ET AL., THE MEAN SEASON: THE ATTACK ON THE WELFARE STATE 24 n.20 (1987) (Reagan administration's "cuts forced hundreds of thousands deeper into poverty"). On the inaccuracy of this cutback charge in the context of federal housing assistance, see infra note 295 and accompanying text.
330. See WHITE, supra note 101, at 221-42 (on journalistic bias and the anti-Reagan impetus); S. Robert Lichter, Media's Typical Homeless Are Anything But, WALL ST. J., Dec. 14, 1989, at A22 (reporting study that found advocacy bias in coverage of homelessness by television and weekly news magazines between 1986 and 1989).
331. In Manhattan, the number of residents living in traditional missions is estimated to have declined by about 90% between 1949 and 1990. O'FLAHERTY, supra note 1, at 47 tbl. 4-1.
332. Between 1984 and 1988, the nation's total number of shelters for the homeless increased from 1900 to 5400. NATIONAL SURVEY OF SHELTERS, supra note 124, at 2. In 1988, religious groups were operating about one-third of the private shelters. Id. at 18.
333. This predilection has helped increase the number of street people at the epicenters of universities. For example, in 1977, a Yale Divinity School student spearheaded the opening of the oldest and largest of the existing soup kitchens in downtown New Haven; in 1979, this soup kitchen moved to Christ Church, across the street from the Yale Co-op, the university's main bookstore. Joan E. Neal, New Haven Soup Kitchens 5, 11 (May 15, 1989) (unpublished manuscript, on file with author). In 1982, Stewart Guernsey, a Harvard Divinity seminarian, helped open the first of the existing soup kitchens near Harvard; it was located at Christ Church Episcopal, a hundred yards west, and within eyesight, of Harvard Yard. Telephone Interview with James Stewart, Director of First Church Shelter (Dec. 11, 1995).
334. See NO HOMELESS PEOPLE ALLOWED, supra note 6, at 32 (on City of San Francisco's arrest, over course of 13 months, of over 350 individuals associated with organization Food Not Bombs for distributing food at Civic Center Plaza); Nancy Hill-Holtzman, Santa Monica Enforces a New Policy Toward Homeless People, L.A. TIMES, June 19, 1992, at B9 (from 1989 to 1992, FAITH, a private charity, provided as many as 300 free meals every weekday on lawn of Santa Monica City Hall). The direction of causation is of interest in these situations. Do the patrons follow the food providers, or vice versa? In downtown New Haven in the early 1990s, at least six different religious institutions provided evening soup-kitchen services each week on a rotating basis, with the expectation that hungry patrons would learn where to go on a particular evening for a free meal. See Downtown Evening Soup Kitchen, Fact Sheet (Aug. 1994) (unpublished, on file with author). The success of this format indicates that a food provider has considerable power to draw the destitute to a location of the provider's choice. A charity that uses food to draw the hungry to the steps of city hall is engaging in symbolic political speech (although the diners themselves typically are not). Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293-99 (1984), grants a government authority to restrict symbolic political speech that displants other users from a prime civic location as long as the government provides ample alternative channels for that speech. See also McHenry v. Agnos, No. 92-15123, 1993 WL 8728 (9th Cir. Jan. 19, 1993) (rebuffing First Amendment arguments advanced on behalf of Food Not Bombs program); infra note 415 and accompanying text.
335. See supra notes 230-31 and accompanying text.
336. Racial animus also may have been involved. The young arrivals tended to be black, the older residents, white. See Barrett A. Lee, The Disappearance of Skid Row, 16 URB. AFF. Q. 81, 97-98 (1980);
337. David Levinson, Skid Row in Transition, 3 URB. ANTHROPOLOGY 79, 86 (1974) (older white Bowery residents feared young black newcomers would "jackroll" (rob) them).
338. Compare HOCH & SLAYTON, supra note 231, at 114-23, 172-98 (stressing role of urban renewal) with JENCKS, HOMELESS, supra note 1, at 61-74 (skeptical assessment of link between loss of SRO units and rise of homelessness).
339. See supra text accompanying notes 2-3. The last of Chicago's cubicle hotels were demolished in 1980. See ROSSI, supra note 3, at 182 n.3.
340. See DANIEL B. BOGUE, SKID ROW IN AMERICAN CITIES 269 (1963) (reporting on Chicago); HOCH & SLAYTON, supra note 231, at 97-98.
341. In contrast to the 1950s, by 1984 most SRO hotels in Chicago were racially integrated, except those on the mostly black South Side. See HOCH & SLAYTON, supra note 231, at 260.
342. Goldstein, Panhandlers at Yale, supra note 13, at 300 (most Yale-area panhandlers are black males between ages of 25 and 45); Dawidoff, supra note 57, at 34-35 (photographs of 30 New York subway panhandlers indicate that close to two-thirds are nonwhite). These proportions are generally in line with the racial composition of the urban underclass. In 1990, "distressed" urban neighborhoods in the 100 largest central cities - that is, neighborhoods categorized by severe economic and social poverty - contained populations that were 67.7% non-Hispanic black and 19.6% Hispanic. Kasarda, supra note 208, at 263.
343. O'FLAHERTY, supra note 1, at 274. O'Flaherty also laments that so many black people have to exercise this newfound "right." See id.
344. See supra notes 181-229.
345. See Isabel Wilkerson, Shift in Feelings on the Homeless: Empathy Turns into Frustration, N.Y. TIMES, Sept. 2, 1991, at A1, A10.
346. See supra note 118 and accompanying text.
347. WHITE, supra note 101, at xii, 3-20.
348. See Homelessness Muddle, supra note 127, at 45.
349. See BAUM & BURNES, supra note 211, at 15-16; WHITE, supra note 101, at 9-16.
350. See supra notes 211-16 and accompanying text.
351. See supra notes 190 & 199 and accompanying text.
352. See. e.g., Robert Hayes, Litigating on Behalf of Shelter for the Poor, 22 HARV. C.R.-C.L. L. REV. 79, 82 (1987) (asserting existence of two or three million homeless Americans). Compare id. with sources cited supra note 132 (scholarly studies estimating existence of 250,000 to 600,000 homeless Americans).
353. See, e.g., Hayes, supra note 293, at 83-86. Hayes has repeatedly asserted that the solution to the problems of the homeless can be summed up in three words: "'housing, housing, housing.'" Celia W. Dugger, Gambling on Honesty on the Homeless, N.Y. TIMES, Feb. 17, 1992, at B1.
354. On actual trends in federal funding of housing subsidies, see JENCKS, HOMELESS, supra note 1, at 94-98 (criticizing misleading statements of Center for Budget and Policy Priorities and Low Income Housing Information Service). Some influential refutations of various of the advocates' positions mentioned in this paragraph are BAUM & BURNES, supra note 211; JENCKS, HOMELESS, supra note 1; ROSSI, supra note 3; and WHITE, supra note 101. But cf. Brendan O'Flaherty, An Economic Theory of Homelessness and Housing, 4 J. HOUSING ECON. 13 (1995) (arguing that reduction in population of middle-class households in central cities affected housing markets in manner that contributed to homelessness of 1980s).
355. Examples of this franker journalism include Barry Bearak, Waiting to Die at the AIDS Hotel, L. A. TIMES, July 25, 1992, at Al;
356. Jay Mathews, Rethinking Homeless Myths, NEWSWEEK, Apr. 6, 1992, at 29;
357. David Whitman, Shattering Myths About the Homeless, U.S. NEWS & WORLD REP., Mar. 20, 1989, at 26;
358. and Celia Dugger's many articles for the New York Times.
359. Goodman, supra note 54, at A9.
360. See, e.g., Dawidoff, supra note 57; Pete Harnill, How to Save the Underclass - and Ourselves, NEW YORK, Sept. 20, 1993, at 34.
361. Developments in these and other cities are conveniently summarized in RIGHT TO REMAIN NOWHERE, supra note 4, and NO HOMELESS PEOPLE ALLOWED, supra note 6. Of the 16 cities tallied in RIGHT TO REMAIN NOWHERE, supra note 4, at xi tbl. II, 12 had taken some action in 1993 to control begging; 12 had carried out "sweeps" of public places; 10 had imposed restrictions on sleeping; and 4 had attempted to control sitting. Id. NO HOMELESS PEOPLE ALLOWED, supra note 6, at vii tbl. I, identifies "antihomeless" policies adopted in 1994 by 39 cities and counties, more than double the number identified the previous year; 26 of these localities had approved anti-panhandling ordinances.
362. The few available scraps of evidence indicate that the hourly incomes of panhandlers fell between 1990 and 1995 as the backlash deepened. See Finder, Panhandling is Down, supra note 5, at 46 (one subway panhandler's report that his former income of $100 a day had been roughly halved); Douglas Martin, Free Speech, but They'd Prefer the 2 Cents, N.Y. TIMES, Oct. 4, 1992, at 39 (anecdotal reports that Manhattan beggars took in significantly less in 1992 than in 1991);
363. News From the Underground, CITY J., Spring 1994, at 9 (one N.Y. beggar's report that people were giving less than before).
364. See Kalven, supra note 36. After eloquently showing that in some circumstances constraints on expression actually serve the cause of free speech, Kalven proceeds to overlook that truth and criticizes the Court for sympathizing with police efforts to control a crowd of 2000 parading in front of a courthouse. He moves too readily from the unimpeachable premise that Louisiana should have had to permit the parade to occur somewhere, to the conclusion that it had to allow the parade in one of the few locations where it might lead to perceptions of mob justice. Jeremy Waldron also succumbs to the notion that all open-access spaces have to be governed by an identical regulatory regime. Waldron analyzes bans on sleeping as if they invariably apply citywide. See Jeremy Waldron, Homelessness and the Issue of Freedom, 39 UCLA L. REV. 295 (1991).
365. Justice Brennan was one of the staunchest proponents of the monolithic view. See, e.g., United States v. Kokinda, 497 U.S. 720, 742-43 (1990) (Brennan, J., dissenting) (unqualified statement that public parks, streets, and sidewalks are suited for use as central gathering places). But cf. infra note 378.
366. 307 U.S. 496, 515 (1939). At a relatively early point in his judicial career, Justice Holmes declared, quite discordantly with Hague and contemporary First Amendment law, that a government has complete discretion in controlling its public spaces and can "forbid public speaking in a highway or public park." Commonwealth v. Davis, 39 N.E. 113, 113 (Mass. 1895).
367. See, e.g., Cox v. New Hampshire, 312 U.S. 569, 575-76 (1941) (permit requirement for street parade is valid time, place, and manner restriction); ACORN v. St. Louis County, 930 F.2d 591, 595-97 (8th Cir. 1991) (traffic ordinance that barred persons standing in roadway from soliciting charitable contributions from vehicle occupants did not violate First Amendment); Xiloj-Itzep v. City of Agoura Hills, 29 Cal. Rptr. 2d 879, 879-89 (Ct. App. 1994) (city may prohibit day laborers from soliciting work from those driving by).
368. Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416 (1956) (foundational analysis of economic justifications for spatial diversity in local government policies).
369. The post-Tiebout literature is reviewed in WILLIAM A. FISCHEL, REGULATORY TAKINGS 255-69 (1995).
370. These designations assume that social order is a unidimensional condition. Anyone bothered by this simplification should imagine a more elaborate zoning system.
371. It would also be possible to vary regulations according to time of day. For instance, a neighborhood commercial strip might be governed by "Yellow" rules during daylight hours, but by "Green" rules after dark, when even episodic panhandling may put off pedestrians.
372. See supra text accompanying notes 32-37.
373. Different cities could make different determinations. For example, while a Las Vegas might choose to allow episodic panhandling in its Yellow Zones, a St. Petersburg, Florida, might choose to ban that activity in those locations (constitutional doctrine permitting). The basic idea is that even in a St. Petersburg, a Yellow Zone would require a pedestrian to use a degree of street smarts.
374. Cf. Davenport v. City of Alexandria, 710 F.2d 148, 149-50 (4th Cir. 1983) (en banc) (involving city ordinance that banned street performances (such as plaintiff's bagpipes playing) on sidewalks of central business district, but not in other public spaces).
375. On the possibilities and limitations of spontaneous order, see generally ORDER WITHOUT LAW, supra note 141, and sources cited therein.
376. On the spontaneous spatial sorting of people with different tastes, see THOMAS C. SCHELLING, MICROMOTIVES AND MACROBEHAVIOR 137-55 (1978).
377. See supra text accompanying notes 148-56.
378. See SKOGAN, supra note 22, at 166-67.
379. See supra notes 232-35 and accompanying text.
380. Kenneth T. Jackson, The Bowery: From Residential Street to Skid Row, in ON BEING HOMELESS: HISTORICAL PERSPECTIVES 69, 75 (Rick Beard ed., 1987).
381. See, e.g., ALBERT J. RUTLEDGE, A VISUAL APPROACH TO PARK DESIGN 82-84 (1981) (example of how landscape architect might anticipate user preferences when designing park containing bocci green, basketball court, and children's playground).
382. Frederick Law Olmsted and Albert Vaux, the original designers of Central Park, contemplated that it would have specialized physical spaces - "Playground," "Arboretum," "Flower Garden," and so on. Perhaps because police forces were then in their infancy, these designers make no mention of issues of social control in describing their vision of the Park. See LANDSCAPE INTO CITYSCAPE: FREDERICK LAW OLMSTED'S PLANS FOR A GREATER NEW YORK CITY 74-88 (Albert Fein ed., 1968) (reproducing 1858 document by Olmsted and Vaux).
383. Sign observed by author, Nov. 5, 1994. Litigation involving the Sheep Meadow is cited infra note 466.
384. See Robert Guskind, Needle Park's Gone, Addicts Aren't, 24 NAT'L J. 2315 (on Zurich's decision to end experiment with tolerating drug use in particular park). On the eclipse of a similar, but de facto, drug haven, see De Groot, supra note 25, at 62 (describing reactions to University of California's construction in 1992 of Volleyball courts in People's Park in Berkeley).
385. Orlando has erected a minimalist pavilion with a heated floor and a capacity of up to 700. RIGHT TO REMAIN NOWHERE, supra note 4, at 85; see also id. at 72-73 (Dallas open-air shelter with heated floors); id. at 76 (Jacksonville's plans for pavilion); cf. NO HOMELESS PEOPLE ALLOWED, supra note 6, at 45-46 (Fort Lauderdale's approval of "tent city" safe zone in downtown parking lot). 322. See infra text accompanying notes 372-78.
386. See, e.g., Panhandling Control Act of 1993, D.C. Act 10-98, §§ 3(b)(c), cited in RIGHT TO REMAIN NOWHERE, supra note 4, at 117 (ban on begging within 10 feet of ATM and at mass transit stops); SAN FRANCISCO, CAL., MUNICIPAL CODE, pt. II, ch. 8, § 121, cited in NO HOMELESS PEOPLE ALLOWED, supra note 6, at 33 & n.126 (prohibition of loitering within 30 feet of ATM).
387. RIGHT TO REMAIN NOWHERE, supra note 4, at 28-29.
388. Sign observed by author, July 7, 1995.
389. Many European cities have official Red-Light Districts: the walletjes of the Netherlands, Hamburg's Reeperbahn, and Zurich's Niederdorf-Bellevue. On Boston's failed experiment with a "combat zone" in the 1970s, see 2 FEINBERG, supra note 46, at 43; Norman Marcus, Zoning Obscenity: Or, the Moral Politics of Porn, 27 BUFF. L. REV. 1, 2-4 (1978).
390. I am a skeptic of the wisdom of zoning private lands, partly because many municipalities employ conventional zoning to segregate households by economic class. See Alternatives to Zoning, supra note 88, at 703-05. One might ask how I could possibly contemplate the zoning of public spaces, even if only as a second-best measure. See infra text accompanying notes 462-66. One distinction is that private land-use disputes tend to arise in more intimate social environments, where alternatives to municipal zoning are feasible. Conventional zoning ordinances govern many private land-use decisions, such as sideyard setbacks, that have highly localized effects. When externalities are so localized, the handful of long-term neighbors involved in the dispute are apt to be able to work out their own resolution of it without the aid of public regulators. Urban open-access spaces, by contrast, are used by large numbers of strangers. In addition, in some contexts developers can impose covenants to regulate uses on private lands. When public spaces need governance, this alternative source of control is not available. Indeed, a government that zones its public spaces is in many ways analogous to a developer imposing covenants on a subdivision. Ideally, both are seeking to make their lands more valuable. Another distinction is that many provisions of conventional zoning ordinances prohibit landowners from mimicking land uses that are normal in the municipality. For example, suburbanites living on quarter-acre lots may impose a five-acre minimum lot-size requirement on undeveloped land. Conventional zoning therefore tends to be horizontally inequitable. See Robert C. Ellickson, Suburban Growth Controls: An Economic and Legal Analysis, 86 YALE L.J. 385, 419-24 (1977). By contrast, municipal regulation that restricts subnormal street behavior is fully consistent with horizontal equity. Cf. Alternatives to Zoning, supra note 88, at 729-30 (asserting that land uses should be deemed common law nuisances only if they are unusually deleterious to neighbors).
391. How, if at all, might the location of these public-space zones be coordinated with conventional municipal zoning decisions? At one extreme, the two systems could be entirely integrated; for example, all sidewalks adjacent to lands in industrial zones might be automatically designated "Red." Conversely, the public-space zones could be designated on an independent overlay map. Partly because police officers and citizens are unlikely to be aware of the boundaries of conventional zones, the overlay approach, which is far more flexible, seems generally superior.
392. See supra text at notes 240-46; infra note 459. The due process issues are particularly salient when police officers enforce informal neighborhood rules of conduct. See supra text accompanying notes 313-16.
393. 810 F. Supp. 1551 (S.D. Fla. 1992), remanded for limited purposes, 40 F.3d 1155 (11th Cir. 1994).
394. See Loper v. New York City Police Dep't, 802 F. Supp. 1029, 1042-45 (S.D.N.Y. 1992), aff'd, 999 F.2d 699 (2d Cir. 1993); see also 1 FEINBERG, supra note 46, at 22-24.
395. See Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting) (objecting to introduction of evidence officials had obtained by wire-tapping telephone conversations); see also FCC v. Pacifica Found., 438 U.S. 726, 748 (1978) (stressing right to be left alone in one's home); cf. Pro-Choice Network v. Schenck, 67 F.3d 377, 394 (2d Cir. 1995) (en banc) (Winter, J., concurring) (propounding principle that "the First Amendment does not, in any context, protect coercive or obstructionist conduct that intimidates or physically prevents individuals from going about ordinary affairs").
396. U.S. CONST. amend. I.
397. Cf. Richard A. Posner, Free Speech in an Economic Perspective, 20 SUFFOLK U. L. REV. 1 (1986) (suggesting how free speech doctrine might be attuned to both harms and benefits of speech);
398. Frederick Schauer, Uncoupling free Speech, 92 COLUM. L. REV. 1321 (1992) (focusing on who should have to "pay" for rights to free speech).
399. See, e.g., Harris v. McRae, 448 U.S. 297, 323 (1980) (poverty is not suspect classification); Dandridge v. Williams, 397 U.S. 471, 485 (1970) (judging statute that affected class of AFDC recipients according to "reasonable basis" standard); Johnson v. City of Dallas, 860 F. Supp. 344, 355-57 (N.D. Tex. 1994) (homeless do not constitute suspect or quasi-suspect class for equal protection purposes), rev'd on other grounds, 61 F.3d 442 (5th Cir. 1995); City of Seattle v. Webster, 802 P.2d 1333, 1340-41 (Wash. 1990) (rejecting assertion that Seattle "pedestrian interference ordinance" violated equal protection rights of class of homeless persons), cert. denied, 500 U.S. 908 (1991).
400. See supra text accompanying notes 281-84.
401. See Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977); Washington v. Davis, 426 U.S. 229 (1976).
402. In Tobe v. City of Santa Ana, 892 P.2d 1145, 1150 n.1 (Cal. 1995), the plaintiffs eventually abandoned their only equal protection argument, which was that Santa Ana had discriminated against the homeless as a class. But cf. Streetwatch v. National R.R. Passenger Corp., 875 F. Supp. 1055, 1066-67 (S.D.N.Y. 1995) (plaintiffs had not proved allegation that Amtrak had enforced anti-loitering policies in Penn Station in racially discriminatory fashion).
403. See JENCKS, HOMELESS, supra note 1, at 22 (stating that surveys find somewhat less than half of all homeless adults are black); ROSSI, supra note 3, at 123 (stating that 28.9% of members of Chicago street sample self-reported as white, and 55.6% as black).
404. Cf. Marlise Simons, In France's Fabled South, a Plague of Panhandlers, N.Y. TIMES, Aug. 22, 1995, at A4 (describing how twelve cities in southern France have instituted bans on panhandling after experiencing influxes of (presumably white) panhandlers from northern and eastern Europe).
405. On street-control initiatives in these cities, see NO HOMELESS PEOPLE ALLOWED, supra note 6, at 40-43, 55-57; RIGHT TO REMAIN NOWHERE, supra note 4, at 27-34, 116-26.
406. Developments in these localities are described supra note 25 (Berkeley); supra note 169 (Evanston); and in RIGHT TO REMAIN NOWHERE, supra note 4, at 107-15 (Seattle).
407. See, e.g., HOWARD SCHUMAN ET AL., RACIAL ATTITUDES IN AMERICA: TRENDS AND INTERPRETATIONS 71-138 (1985) (reporting time trends in white responses to survey questions).
408. See supra text accompanying notes 281-84.
409. See supra text accompanying notes 118, 181-88.
410. There are numerous law review articles on this issue. Some observers are inclined to decide all speech issues in favor of panhandlers. See, e.g., Hershkoff & Cohen, supra note 15; Nancy A. Millich, Compassion Fatigue and the First Amendment: Are the Homeless Constitutional Castaways?, 27 U.C. DAVIS L. REV. 255 (1994). Commentators who stress the community interest in public control of misconduct tend to argue that begging is not protected speech under the First Amendment. See sources cited infra note 350. Cynthia Mabry stands out for her serious regard for the interests of both street people and ordinary pedestrians. See Mabry, supra note 135. However, although she rightly distinguishes the legal regimes appropriate for street pavements, sidewalks, parks, and other areas, she somewhat underestimates the utility of further legal distinctions within each of these categories. See id. at 330-36.
411. Berkeley Community Health Project v. City of Berkeley, No. C 95-0665 CW, 1995 WL 293899, at *4-7 (N.D. Cal. May 5, 1995) (granting preliminary injunction against enforcement of Berkeley's anti-solicitation ordinance, primarily on basis of Liberty of Speech Clause of California Constitution); Blair v. Shanahan, 775 F. Supp. 1315, 1322-25 (N.D. Cal. 1991) (declaring California statute prohibiting accosting for purpose of begging to violate First Amendment, thereby deterring San Francisco from enforcing statute), rev'd & remanded, 38 F.3d 1514 (9th Cir. 1994), cert. denied, 115 S. Ct. 1698 (1995); Loper v. New York City Police Dep't, 999 F.2d 699 (2d Cir. 1993) (enjoining city's enforcement of state anti-begging statute).
412. See Village of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 633 ( 1980), followed in, e.g., International Soc'y for Krishna Consciousness v. Lee, 505 U.S. 672, 677 (1992).
413. See, e.g., Blair, 775 F. Supp. at 1324. Even one of the most skeptical judicial opinions, Young v. New York City Transit Authority, 903 F.2d 146, 153-157 (2d Cir.), cert. denied. 498 U.S. 984 (1990), ends up assuming arguendo that begging involves "expressive conduct." But see Ulmer v. Municipal Court, 127 Cal. Rptr. 445, 447 (Ct. App. 1976) (holding that First Amendment does not cover accosting to solicit money).
414. See Fay Leoussis, The New Constitutional Right to Beg - Is Begging Really Protected Speech?, 14 ST. LOUIS U. PUB. L. REV. 529 (1995);
415. Jonathan Mallamud, Begging and the First Amendment, 46 S.C. L. REV. 215, 216, 230-35 (1995); Teir, supra note 21, at 321-24.
416. I also assume that ordinary bench squatting is not expressive conduct. See infra note 420 and accompanying text.
417. A leading case on the protected, but secondary, status of commercial speech is Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 562-63 (1980).
418. See. e.g., Hershkoff & Cohen, supra note 15, at 898-901.
419. "[T]he more respondents are panhandled, the more likely they are to regard poverty as a function of personal choice," and therefore to lessen their sympathy toward the poor. Wilson, Exposure to Panhandling, supra note 15, at 16.
420. See supra note 73 and accompanying text.
421. See supra notes 23, 49-50, 77 and accompanying text.
422. See supra text accompanying notes 78-80.
423. The immediate push for a Flag Desecration Amendment after the Court's decision in Texas v. Johnson, 491 U.S. 397 (1989), shows that this is not a fanciful concern.
424. See Spence v. Washington, 418 U.S. 405, 410-11 (1974) (protecting unconventional flag display on account of "intent to convey a particularized [political] message"); White House Vigil for the ERA Comm. v. Clark, 746 F.2d 1518, 1539-40 (D.C. Cir. 1984) (act of leaving package on sidewalk, not intended as form of communication, is not expressive conduct); Peter Meijes Tiersma, Nonverbal Communication and the Freedom of "Speech." 1993 WIS. L. REV. 1525, 1552-62 (differentiating communication-by-conduct from inference-from-conduct and concluding communicative conduct must have meaning and intent). Tiersma applies his analytic approach to the homeless in id. at 1576.
425. On whether the level of First Amendment protection is to be elevated when commercial speech is intertwined with fully protected speech, see, e.g., Board of Trustees v. Fox, 492 U.S. 469, 474-75 (1989) (holding that Tupperware parties are commercial speech despite some teaching of home economics); Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 67-68 (1983) (classifying pamphlets advertising contraceptive devices as commercial speech).
426. On beggars' time-honored resort to fraud (and, in extreme instances, self-maiming), see 4 MAYHEW, supra note 185, at 401-31 (fraud), 431-33 (self-maiming) (London in 1860s); Kenneth L. Kusmer, The Underclass in Historical Perspective: Tramps and Vagrants in Urban America. 1870-1930, in ON BEING HOMELESS: HISTORICAL PERSPECTIVES 21, 28-30 (Rick Beard ed., 1987); Stanley, supra note 168, at 1270-71 (reporting assessments of observers in late-nineteenth-century United States); Dawidoff, supra note 57, at 36, 41, 52 (noting that many New York subway panhandlers of 1990s had told author "monstrous lies"). In a speech in 1877, Francis Wayland included a poem on the subject: He tells you of his starving wife. His children to be fed. Poor little, lovely innocents, All clamorous for bread-And so you kindly help to put A bachelor to bed. Stanley, supra note 168, at 1270. Wayland was then serving as the Dean of the Yale Law School. Id.
427. The problem of duress is addressed in the proliferating municipal ordinances that criminalize aggressive panhandling.
428. International Soc'y for Krishna Consciousness v. Lee, 505 U.S. 672, 684 (1992) (discussing solicitation within airport terminal buildings).
429. See, e.g., Ibanez v. Florida Dep't of Business & Professional Regulation, 114 S. Ct. 2084, 2088 (1994) (false, deceptive, or misleading commercial speech may be banned altogether); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 563 (1980) (protection for commercial speech is dependent on informational value of such speech).
430. See C.C.B. v. State, 458 So. 2d 47, 50 (Fla. Dist. Ct. App. 1984) (dictum) (while city may not ban begging entirely, it may regulate beggar's freedom of speech by means of "narrowly drawn permit system"). Wilmington, Delaware, has adopted an ordinance that requires panhandlers who wish to ply their trade for more than five days a year to apply for a permit, which is granted without fee. Begging in Wilmington Now Is by Permit Only, NEW HAVEN REG., Feb. 23, 1995, at A2; cf. Friedrich v. City of Chicago, 619 F. Supp. 1129 (N.D. Ill. 1985) (on Chicago's permit system for street performers). See generally Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) (on permit systems and fees for speaking in public places).
431. See United States v. Kokinda, 497 U.S. 720, 741-42 & n.1 (1990) (Brennan, J., dissenting) (citing academic critics of Court's public forum doctrine).
432. One of the most publicized cases on public civility, Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. 1992), involved a library's efforts to control a malodorous and obnoxious patron. Reversing the trial judge, the appellate court held that the interior of a public library was a "designated," as opposed to a traditional, public forum, and that the library's rules governing noise and body odor were reasonable time, place, and manner restrictions. Prior to losing this action for declaratory relief, Kreimer had settled his damages claim against the library for $80,000. See Robert Hanley, Library Wins in Homeless-Man Case, N.Y. TIMES, Mar. 25, 1992, at B8.
433. See, e.g., United States v. Grace, 461 U.S. 171, 177 (1983); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983) ("streets and parks" are "quintessential" traditional public forums).
434. Compare Grace, 461 U.S. at 179 (presuming that all sidewalks in Washington, D.C., warrant same regulatory regime) with Burson v. Freeman, 504 U.S. 191, 215-16 (1992) (Scalia, J., concurring) (some streets and sidewalks have not traditionally been used as public forums) and Robert C. Post, Between Governance and Management: The History and Theory of the Public Forum, 34 UCLA L. REV. 1713, 1793 n.294 (1987) (arguing that contrary to Court's broad characterization, some parks, such as federal wilderness preserves, are not traditionally used as public forums).
435. 460 U.S. at 45. As mentioned, infra text accompanying notes 402-03, the goals of content neutrality and narrow tailoring are inherently in tension.
436. See supra text accompanying notes 306-10.
437. It is inconceivable that the Court would uphold especially stringent speech restrictions on sidewalks near prime mixing-bowl spaces such as sports stadiums and convention centers. Cf. Carreras v. City of Anaheim, 768 F.2d 1039 (9th Cir. 1985) (Free Speech Clause of California Constitution protects charitable solicitations at these spots).
438. See Grayned v. City of Rockford, 408 U.S. 104 (1972) (sustaining First Amendment challenge to ordinance aimed at limiting noise near schools).
439. See Cox v. Louisiana, 379 U.S. 559 (1965) (statute barring picketing with intent to interfere with administration of justice near state courthouse is valid on its face). But cf. United States v. Grace, 461 U.S. 171 (1983) (holding that First Amendment entitled solitary protesters to leaflet and hold signs on sidewalk immediately in front of Supreme Court).
440. Boos v. Barry, 485 U.S. 312 (1988) (sustaining ban on congregation of three or more people on sidewalks within 500 feet of embassy of foreign government).
441. Burson v. Freeman, 504 U.S. 191 (1992) (5-3 decision) (upholding statutory restriction on political campaigning within 100 feet of entrance to polling place).
442. Madsen v. Women's Health Ctr., Inc., 114 S. Ct. 2516 (1994) (6-3 decision) (affirming injunction creating 36-foot no-protest zone on public lands around abortion clinic).
443. Frisby v. Schultz, 487 U.S. 474 (1988) (6-3 decision) (affirming suburb's restrictions on picketing by anti-abortion protestors outside of doctor's house). It is worth noting that Justice Brennan dissented in most of the decisions cited in this sentence that were decided during his tenure. Yet even this staunchest of proponents of a monolithic law of public spaces has occasionally suggested the permissibility of spatial differentiation in controls. See Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 830 (1984) (Brennan, J., dissenting) ("I have no doubt that signs posted on public property in certain areas . . . could contribute to the type of eyesore that a city would genuinely have a substantial interest in eliminating.").
444. See supra note 44.
445. See Goldstein, Panhandlers at Yale, supra note 13, at 315-16 (panhandlers seek out locations where most pedestrians will feel safe).
446. For example, a ban on picketing in front of an abortionist's home, sustained in Frisby, 487 U.S. 474, reduces the amount of speech that right-to-life advocates can address to physicians who perform abortions. Without expressly acknowledging this effect, the Frisby majority found that "the ordinance preserves ample alternative channels of communication . . . ." Id. at 482-84.
447. See Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984).
448. Frisby, 487 U.S. 474.
449. Cf. Craft v. Hodel, 683 F. Supp. 289, 291 (D. Mass. 1988) (mem.) (First Amendment does not shield politically motivated nude bathing at Cape Cod Seashore National Park).
450. See, e.g., City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 53 (1986) (allowing city to limit adult theatres to zones comprising about five percent of city's land area); Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 503-12 (1981) (plurality opinion) (while ban on purely commercial billboards in noncommercial zones does not violate First Amendment, general ban on billboards is unconstitutional).
451. Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 817 (1984).
452. See Loper v. New York City Police Dep't, 802 F. Supp. 1029, 1032 (S.D.N.Y. 1992) (tracing New York's anti-begging statute back to 1788), aff'd, 999 F.2d 699 (2d Cir. 1993); Leoussis, supra note 350, at 543 (describing anti-begging laws of late eighteenth century). On the fresh batch of anti-begging statutes that Northern states enacted in 1866-1885, see Stanley, supra note 168, at 1273-80.
453. See Hershkoff & Cohen, supra note 15, at 896 n.5; Millich, supra note 346, at 333-36.
454. 903 F.2d 146, 160 (2d Cir.), cert. denied, 498 U.S. 984 (1990).
455. See also People v. Schrader, 617 N.Y.S.2d 429 (Crim. Ct. 1994) (holding this ban on subway begging did not abridge freedom of speech provisions of New York Constitution).
456. 999 F.2d 699 (2d Cir. 1993).
457. N.Y. PENAL LAW § 240.35(1) (McKinney 1989).
458. Loper, 999 F.2d at 705; see C.C.B. v. State, 458 So. 2d 47, 50 (Fla. Dist. Ct. App. 1984) (invalidating Jacksonville's total ban on begging as violation of First Amendment and state constitutional provision); see also Schad v. Borough of Mount Ephraim, 452 U.S. 61, 75-77 (1981) (striking down ordinance prohibiting live entertainment throughout borough).
459. See supra text accompanying notes 353-60.
460. See supra text accompanying notes 30-112.
461. See supra text accompanying notes 23, 49-50, 70-72, 77.
462. See International Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 684-85 (1992) (First Amendment protects leafleting, but not solicitations, within airport terminal buildings).
463. See Heffron v. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 665 (1981) (Blackmun, J., concurring and dissenting).
464. United States v. Kokinda, 497 U.S. 720, 734 (1990) (plurality opinion).
465. On the weight of these governmental interests, compare the views of Judge Orrick in Blair v. Shanahan, 775 F. Supp. 1315, 1324-25 (N.D. Cal. 1991) (public interest in avoiding "annoyance" insufficient to justify regulation of accosting by beggars), rev'd and remanded on other grounds, 38 F.3d 1514 (9th Cir. 1994), cert. denied, 115 S. Ct. 1698 (1995), with People v. Zimmerman, 19 Cal. Rptr. 2d 486, 488-89 (App. Dep't Super. Ct. 1993) (declining to follow Orrick's holdings in Blair).
466. See supra note 332 and accompanying text.
467. For example, a blanket ban on begging might be challenged as an overly broad method of preventing fraud and duress by alms-seekers. Cf. supra text accompanying notes 361-65. A classically overbroad ordinance was involved in Board of Airport Commissioners v. Jews for Jesus, Inc., 482 U.S. 569, 570, 577 (1987) (unanimous decision striking down regulation banning all "First Amendment activities" at airport).
468. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 391 (1992) (invalidating ordinance aimed at aggressors acting on one or more of narrow set of discriminatory motivations).
469. See 903 F.2d 146, 168 (2d Cir. 1990) (Meskill, J., concurring in part and dissenting in part); 729 F. Supp. 341, 352-59 (S.D.N.Y. 1990) (Sand, J.). The circuit court majority, however, rejected this position. See 903 F.2d at 154-57, 160-62.
470. See Berkeley Community Health Project v. City of Berkeley, 1995 WL 293899, at *6 (N.D. Cal. May 5, 1995) (California Constitution's Liberty of Speech Clause bars city from prohibiting solicitations for cash while permitting other speech); Blair v. Shanahan, 775 F. Supp. 1315, 1325-26 (N.D. Cal. 1991), aff'd in part, dismissed in part and remanded, 38 F.3d 1514 (9th Cir. 1994), cert. denied, 115 S. Ct. 1698 (1995).
471. A city may have legitimate reasons for regulating aspects of street performances that disrupt traffic or annoy ordinary pedestrians and neighbors. See Davenport v. City of Alexandria, 748 F.2d 208, 209-10 (4th Cir. 1984) (holding that city's total ban on street performances on downtown sidewalks violated First Amendment, even though city allowed performances in eight downtown parks and plazas by permit); Friedrich v. City of Chicago, 619 F. Supp. 1129, 1147-48 (N.D. Ill. 1985) (some aspects of permit system for street performers were too restrictive).
472. See supra notes 69-72 and accompanying text.
473. See supra text accompanying notes 78-80.
474. See, e.g., Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978) (sustaining city's landmarks preservation law against federal takings challenge).
475. See, e.g., cases cited supra notes 382-86.
476. See, e.g., Texas v. Johnson, 491 U.S. 397 (1989) (First Amendment protects politically motivated flag desecration); Cohen v. California, 403 U.S. 15 (1971) (First Amendment protects political vulgarity on jacket); cf. Goldstein v. Town of Nantucket, 477 F. Supp. 606 (D. Mass. 1979) (town cannot let merchants' opinions control who can obtain permit to sing in streets).
477. This conception of the purpose of the First Amendment is featured in, e.g., MARTIN H. REDISH, FREEDOM OF EXPRESSION: A CRITICAL ANALYSIS 9-40 (1984) (First Amendment serves value of "individual self realization");
478. STEVEN H. SHIFFRIN, THE FIRST AMENDMENT, DEMOCRACY, AND ROMANCE 140-69 (1990) (advocating celebration of dissent and "romantic" view of First Amendment goals).
479. This basic understanding of the First Amendment is advanced in Daniel A. Farber, Free Speech Without Romance: Public Choice and the First Amendment, 105 HARV. L. REV. 554 (1991). Farber asserts that commercial speech, unlike political speech, tends not to be undersupplied, because it is less of a "public good" in the economist's sense. Id. at 562-68. By this reasoning, there is no First Amendment basis for protecting a beggar's communication of "I would like you to give me money," as opposed to "Look what the American system has made me do." But cf. id. at 567 (charitable solicitation on behalf of homeless is public good that tends to be undersupplied).
480. See supra text accompanying notes 346-65.
481. 475 U.S. 41, 47-49 (1986). This precedent, which stresses the disposition of patrons to misbehave, would tend to support a city's efforts to regulate where charities distribute free meals. See also supra notes 275-76 and accompanying text.
482. See Posados de Puerto Rico Ass'n v. Tourism Co., 478 U.S. 328, 342-43 (1986); see also R.A.V. v. City of St. Paul, 505 U.S. 377, 420-22 (1992) (Stevens, J., concurring) (reviewing Court precedents that sustain various forms of content discrimination); Penn Advertising v. Mayor of Baltimore, 63 F.3d 1318, 1325-26 (4th Cir. 1995) (upholding, against First Amendment challenge, ordinance prohibiting use of billboards in certain locations to advertise cigarettes). But cf. Edenfield v. Fane, 113 S. Ct. 1792, 1796 (1993) (striking down restriction on CPAs' solicitation of new business); City of Cincinnati v. Discovery Network, Inc., 113 S. Ct. 1505, 1514-15 (1993) (holding that because all newsracks are "equally unattractive," city's interest in aesthetics did not justify regulation that permitted dispensing of conventional newspapers, but not commercial handbills, from newsracks situated on public property).
483. See infra text accompanying notes 470-73; cf. Posner, supra note 334, at 10-11, 19 (arguing that municipal restrictions on speech are less worrisome than state or federal restrictions).
484. 810 F. Supp. 1551 (S.D. Fla. 1992) (Atkins, J.), remanded for limited purposes, 40 F.3d 1155 (11th Cir. 1994).
485. 27 Cal. Rptr. 2d 386 (Ct. App. 1994), rev'd. 892 P.2d 1145 (Cal. 1995).
486. A leading case on expressive conduct is United States v. O'Brien, 391 U.S. 367 (1968) (sustaining government prohibition on draftcard burning, conduct that Court regarded as mixing "speech" and "non-speech" elements). Significantly, draftcard burning is an intentional act of symbolic speech, while bench squatting typically is not. See Whiting v. Town of Westerly, 942 F.2d 18, 21-22 (1st Cir. 1991) (routine overnight sleeping in vehicle does not involve expressive conduct). Someone who sleeps repeatedly on a bench with the conscious intent of conveying a political message might conceivably obtain First Amendment protection. See, e.g., Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984) (assuming without deciding that politically motivated sleeping is expressive conduct for purposes of First Amendment); Whiting, 942 F.2d at 21-22 (similar); United States v. Gilbert, 920 F.2d 878, 883-85 (11th Cir. 1991) (similar).
487. For a discussion of the right to travel and its application to the street homeless, see Paul Ades, The Unconstitutionality of "Antihomeless " Laws: Ordinances Prohibiting Sleeping in Outdoor Public Areas as a Violation of the Right to Travel, 77 CAL. L. REV. 595, 605-23 (1989). Freedom of travel can be invoked either as an implicit constitutional right or as a fundamental interest that triggers strict scrutiny under the Equal Protection Clause. While the Supreme Court has never ruled that a municipal measure that burdens intrastate movement can impinge on the federal right of travel, several lower federal courts have so held. See Lutz v. City of York, 899 F.2d 255, 267-68 (3d Cir. 1990) (ruling that Due Process Clause of Fourteenth Amendment protects right to travel through city's public spaces); King v. New Rochelle Mun. Hous. Auth., 442 F.2d 646, 647-48 (2d Cir.), cert. denied, 404 U.S. 863 (1971) (holding that Equal Protection Clause forbids city from imposing five-year residency requirement for eligibility for public housing).
488. Even some of the staunchest advocates for the rights of the homeless might settle for outcome (3). Harry Simon, for example, writes: Whether or not arrests of the homeless for sleeping in public penalize exercise of the right to freedom of movement depends on the breadth of official restrictions . . . . [W]hen a city announces . . . that homeless individuals may not lodge on public land anywhere within the city, the effect . . . may be exceptionally severe. Harry Simon, Towns Without Pity: A Constitutional and Historical Analysis of Official Efforts To Drive Homeless Persons from American Cities, 66 TUL. L. REV. 631, 654 (1992).
489. See supra text accompanying notes 47-54, 81-86.
490. New York City, had it wanted to, should have been entitled to prohibit the chronic squatting on the busy Manhattan sidewalk described in Boggs v. New York City Health & Hosp. Corp., 523 N.Y.S.2d 71, 72-73 (App. Div. 1987), appeal dismissed, 520 N.E.2d 515 (N.Y. 1988).
491. A right to enter does not necessarily imply a right to sit, even for only a short period. See Roulette v. City of Seattle, 850 F. Supp. 1442, 1447-48 (W.D. Wash. 1994) (holding that Seattle ordinance regulating sitting on public sidewalks did not abridge federal constitutional right to travel).
492. Influenced by Tobe v. City of Santa Ana, 27 Cal. Rptr. 2d 386 (Ct. App. 1994), rev'd, 892 P.2d 1145 (Cal. 1995), the City Attorney of Santa Monica advised the city to open a new 100-person shelter before evicting transients camping in city parks. See Homeless Shelter Okd as Step Toward Clearing Parks, L.A. TIMES, Mar. 30, 1994, at B2.
493. This outcome would satisfy the concern that a person be legally able to exist somewhere. See, e.g., Waldron, supra note 301.
494. 468 U.S. 288 (1984).
495. Id. at 299.
496. Id. at 295. Laurence Tribe has argued that the judges deciding Clark should have delved deeply into fundamental questions of the distribution of wealth and power. See Laurence H. Tribe, Constitutional Calculus: Equal Justice or Economic Efficiency?, 98 HARV. L. REV. 592, 600-01 (1985). Frank Easterbrook responded by questioning whether the conferral of sleeping rights in parks is the right way to accomplish redistribution.
497. See Frank H. Easterbrook, Method, Result, and Authority: A Reply, 98 HARV. L. REV. 622, 626 (1985); see also supra text accompanying notes 116-27 (supporting Easterbrook's skepticism).
498. Pottinger v. City of Miami, 810 F. Supp. 1551 (S.D. Fla. 1992), remanded for limited purposes, 40 F.3d 1155 (11th Cir. 1994).
499. Id. at 1578-81.
500. Id. at 1580.
501. Id. at 1584. Two years later, the "safe zones" were still not operational. See Pottinger, 40 F.3d at 1157. This stalemate was an upshot of Judge Atkins's granting the plaintiffs veto power over the City of Miami's selection of these locations. Given the enormously diverse demands on city public spaces, a judge who orders the creation of safe zones should give city officials ample discretion over where to locate them.
502. Tobe v. City of Santa Ana, 892 P.2d 1145, 1165 (Cal. 1995). Judge Atkins's constitutional reasoning in Pottinger also was rejected, across the board, in Joyce v. City & County of S.F., 846 F. Supp.
503. 864 (N.D. Cal. 1994) (denying preliminary injunction to halt San Francisco's Matrix Program, which restricted camping, inebriation, and aggressive panhandling in public places, and allegedly thereby jeopardized street people's life-sustaining activities).
504. Alicia Di Rado, Santa Ana Oks Law Barring Homeless from Setting Up House at Civic Center, L.A. TIMES, Dec. 21. 1993, at B9.
505. Tobe v. City of Santa Ana, 27 Cal. Rptr. 2d 386, 395 (Ct. App. 1994), rev'd, 892 P.2d 1145 (Cal. 1995). The challenged ordinance had barred camping in all the city's "streets," "parking lots," and "public areas." Id. at 389-90 n.3.
506. Tobe, 892 P.2d at 1165.
507. The California Supreme Court observed in Tobe that a California statute affirmatively requires counties to provide aid to the indigent. Id. at 1165-66 n.18.
508. Even a judge who had ruled that a large city had a duty to create safe zones for indigent campers might exempt small suburbs and towns from that constitutional obligation. The division of duties among central cities and suburbs poses a "fair share" issue similar to the one encountered in exclusionary zoning law. At times. New Jersey law has exempted certain localities from fair-share zoning duties or enabled them to satisfy some of their obligations through payments to central cities. For an introduction to the fair-share debate, see JESSE DUKEMINIER & JAMES E. KRIER, PROPERTY 1105-30 (3d ed. 1993).
509. See, e.g., Dandridge v. Williams, 397 U.S. 471 (1970) (applying deferential standard of review to federal AFDC program); Moore v. Ganim, 660 A.2d 742 (Conn. 1995) (declining to construe provisions of state constitution as establishing right to minimum subsistence).
510. Untenable Case, supra note 78, provides an introduction to the welfare rights debate and defends the conditioning of welfare benefits to promote work incentives.
511. Robinson v. California, 370 U.S. 660, 666-67 (1962).
512. See supra text accompanying notes 98-106.
513. Some advocates for street people appear to agree that it takes a citywide ban to create a status crime. See supra note 422.
514. Pottinger, 810 F. Supp. at 1561-65; Tobe, 27 Cal. Rptr. 2d at 393-94; see also Johnson v. City of Dallas, 860 F. Supp. 344 (N.D. Tex. 1994), rev'd on other grounds, 61 F.3d 442 (5th Cir. 1995).
515. 392 U.S. 514 (1968).
516. Id. at 517.
517. Id. at 533-37.
518. Id. at 551-52.
519. In practice. Skid Rows are not entirely safe harbors for alcoholics. Sundance v. Municipal Court, 729 P.2d 80 (Cal. 1986) (per curiam), rebuffed a shotgun constitutional attack on the Los Angeles Police Department's practice of making sweeps to arrest drunks in the Los Angeles Skid Row. The statute at issue did not criminalize simply being drunk in public, however, but rather the acts of endangering the safety of oneself or others or of interfering with a public way. Id. at 83 n.4.
520. Cf. Norman Siegel, Homelessness: Its Origins, Civil Liberties Problems and Possible Solutions, 36 VILL. L. REV. 1063, 1081 (1991) (describing New York Civil Liberties Union position favoring city designation of specific park areas as sleeping sites for homeless).
521. See supra note 321.
522. On the comparative advantages of formal and informal police practices, see JEROME H. SKOLNICK, JUSTICE WITHOUT TRIAL: LAW ENFORCEMENT IN DEMOCRATIC SOCIETY (3d ed. 1994). On the relative competencies of governments, informal social forces, and hybrids of the two, see generally ORDER WITHOUT LAW, supra note 141, at 249-58.
523. See Alternatives to Zoning, supra note 88, at 701-05.
524. Anticipating this, Jencks has proposed that the new cubicle hotels he favors be located in nonresidential areas of downtowns. JENCKS, HOMELESS, supra note 1, at 116-17.
525. For example: Grievants may allege that due process was not observed when the boundaries were drawn; landowners adjacent to Red-Zone spaces may assert that their property has been "taken"; nonwhites may claim the influence of racial motives in violation of the Equal Protection Clause.
526. See MODEL PENAL CODE § 250.2 cmt. 1 (1980).
527. See supra text accompanying notes 236-46. After Papachristou, drafters of anti-panhandling ordinances have had to be careful to adopt language that limits an enforcing officer's discretion and apprises street people of the behaviors that are barred. For examples of drafters' efforts to avoid this constitutional pitfall and others, see Mabry, supra note 135, at 338 n.202 (excerpts from District of Columbia Panhandling Control Act of 1993); Teir, supra note 21, at 333-37 (model panhandling-control ordinance). Crackdown measures have mostly survived attacks mounted on grounds of vagueness. See, e.g., Kreimer v. Bureau of Police, 958 F.2d 1242, 1266-68 (3d Cir. 1992); City of Seattle v. Webster, 802 P.2d 1333, 1338-39 (Wash. 1990) (en banc), cert. denied, 500 U.S. 908 (1991). But see Ledford v. State, 652 So. 2d 1254, 1256-57 (Fla. Dist. Ct. App. 1995); cf. Streetwatch v. National R.R. Passenger Corp., 875 F. Supp. 1055, 1059, 1062-63 (S.D.N.Y. 1995) (holding, for purposes of granting a preliminary injunction, Amtrak's anti-loitering rules for Penn Station to be unconstitutionally vague). For appraisals of the concerns that underlie the vagueness doctrine, see John C. Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 VA. L. REV. 189 (1985); Post, Reconceptualizing Vagueness, supra note 246.
528. On the general issue, see Isaac Ehrlich & Richard A. Posner, An Economic Analysis of Legal Rulemaking, 3 J. LEGAL STUD. 257 (1974);
529. Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685, 1687-89 (1976);
530. Symposium: Void for Vagueness, 82 CAL. L. REV. 487-554 (1994). On this conundrum in the context of public order, see Kreimer, 958 F.2d at 1268 (holding that library rules barring "offensive" and "nuisance" activity were not too vague to comport with due process); Kelling & Coles, supra note 259, at 69-71.
531. See Goldstein, Panhandlers at Yale, supra note 13, at 355-58 (arguing that regardless of formal legal regime, police officers' customs primarily determine street people's rights in practice).
532. The degree of discretion to afford individual police officers is, of course, one of the abiding issues in criminal law. The vices of discretion are stressed in, for example, Joseph Goldstein, Police Discretion Not to Invoke the Criminal Process, 69 YALE L.J. 543, 586 (1960) (concluding that police officer should not have discretion not to enforce law).
533. See Wilson & Kelling, supra note 23, at 35.
534. See SKOLNIK & FYFE, supra note 188. Judges should not premise their street-law decisions, however, on the assumption that all police officers are like those in the nation's most venal departments. Why should a Minneapolis be denied discretion because the force in New Orleans is untrustworthy? 465. See, e.g., cases cited supra note 385.
535. But see Berkeley Community Health Project v. City of Berkeley, No. C 95-0665 CW, 1995 WL 293899 (N.D. Cal. May 5, 1995) (enjoining enforcement of anti-solicitation ordinance and much of anti-sitting ordinance). In practice, the Supreme Court has itself tended to be deferential to government administrators' zoning of public spaces. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781 (1989), an unsuccessful First Amendment challenge to New York City's efforts to create specialized areas within Central Park. To protect the Sheep Meadow, which in the Court's words the city had designated as "a quiet area for passive recreations like reclining, walking, and reading," id. at 784, the Court held that the city was entitled to regulate the sound equipment and staffing at its nearby bandshell. See also Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981), in which the Court spumed a First Amendment challenge to a Minnesota rule confining the distribution of printed matter and the solicitation of funds to certain areas within the state fairgrounds.
536. Cf. Bowman, supra note 15, at 520, 539, 541-42 (arguing that street harassment of women limits their willingness to use streets).
537. The innovations in telecommunications that enable people to use electronic devices to shop, send documents, and hold conferences increasingly threaten the traditional role of the central business district.
538. There is reason to suppose, however, that the strength of social controls is a more significant variable than the incidence of economic and social poverty. The relatively prosperous Mid-Atlantic and Pacific regions, with a total of only 30.9% of the low-income men in the United States in 1989, had 68.8% of the Census Bureau's S-Night tally of the street population. O'FLAHERTY, supra note 1, at 154 tbl. 7-9. What distinguished New York, San Francisco, and the other panhandling meccas of the 1980s was not the depth of their economic and social poverty, but rather the weakness of their social-control systems. See also supra note 75.
539. See supra note 347 and accompanying text.
540. Municipal experiments might also include fostering the creation of BIDs, see supra notes 166-69, encouraging pedestrians not to give to panhandlers, see supra notes 161, 169, and improving outreach services to street people. The basic point is that a city might rationally choose to include the imposition of criminal sanctions for street misconduct as part of its policy mix. See supra text accompanying notes 170-80.
541. See supra text accompanying notes 435-40.
542. Powell v. Texas, 392 U.S. 514, 547-48 (1968).