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Only during the last few decades has a radically different view of the police function taken hold in America. Today our relations to each other in public spaces are officially defined in terms of individual rights rather than common needs. It is understood, of course, that people ordinarily will respect one another's desire to be free of nuisance behavior, but when that respect is absent and the police are summoned, the officer is now limited to stopping behavior that clearly violates a criminal statute and is instructed to do so in ways that impose the fewest burdens on the rights of the offender.
As a result of a series of court cases and various interest-group pressures, the police are formally or informally instructed to treat a community as an assemblage of individuals bearing rights rather than as a group of neighbors sharing interests. Accordingly, strict limitations have been placed on the power of the police to control public drunkenness, common vagrancy, abusive language, and charitable solicitations. While one can acknowledge the laudable motives of those who supported these restrictions, their cumulative effect in some places has been to make communal life in public spaces unbearable.
No single act of panhandling, loitering, or public drunkenness is especially worrisome, but a series of such acts carried on simultaneously by many people is felt by most citizens to be deeply threatening. Yet the law often treats this problem as if it were a set of isolated, individual behaviors no one of which is harmful, and therefore no one of which deserves punishment. The law takes no official notice of the cumulative effects of collective behaviors of this sort.
The results can be seen in many urban areas. There are neighborhoods that have become inhospitable and even menacing, destructive of any prospect of a decent and civilized street life, because of the presence of many panhandlers and vagrants who boisterously or abusively ply their trade. Citizens are rightly upset by a state of affairs that makes them feel that they are prisoners in their own homes, offices, or cars, while dangerous people are free to use the streets at will.
What is especially unfortunate is that this state of affairs need not exist. For nearly three centuries it did not: public authorities maintained in most urban areas a modicum of public order. In the process of doing this, they sometimes acted arbitrarily, illegally, or violently. Laws and court rulings to curb arbitrary, illegal, or unnecessarily violent action are desirable. But these new limitations went, in many cases, far beyond what is necessary to protect essential rights. Instead, they in effect decriminalized the creation of a public nuisance. Even worse, many city officials believed that the laws and court rulings went further than in fact they did, and so they abandoned any reasonable effort to maintain order. These officials were not simply inhibited by the existence of rights, they were intimidated by the mere assertion of rights.
In this booklet, the Criminal Justice Legal Foundation provides a realistic, thoughtful guide for mayors, city councils, and police chiefs who want practical advice on how to curb one especially annoying public nuisance--panhandling that is abusive, persistent, or threatening. It reviews the law on this matter and suggests a draft ordinance that strikes a reasonable balance between the right of free speech and the right of the public to use public spaces in comfort and civility.
Cities need not throw up their hands and say, "nothing can be done" or, "the courts have tied our hands." There is much that can be done, and there are good reasons for thinking that the courts will approve it.
JAMES Q. WILSON
Collins Professor of Management and Public Policy,
University of California Los Angeles