CLE Workshop: "Status-Enforcing Criminal Laws"

The Murphy Institute's Center on Law and the Economy hosts workshops each semester featuring both Tulane and guest faculty in law, economics, and political science who present their latest research in regulation, civil rights, the criminal legal system, and other key issues in law and the economy. Hosted by Adam Feibelman, Director of the Center on Law and the Economy and Sumter D. Marks Professor of Law at Tulane Law School, CLE workshops are open to faculty, students, and the Tulane community. 

Professor Jamelia Morgan is an award-winning and acclaimed scholar and teacher focusing on issues at the intersections of race, gender, disability, and criminal law and punishment. She is a Professor of Law and Director of the Center for Racial and Disability Justice at the Northwestern University Pritzker School of Law. Her scholarship and teaching examine the development of disability as a legal category in American law, disability and policing, overcriminalization and the regulation of physical and social disorder, and the constitutional dimensions of the criminalization of status. 

Prof. Morgan received a B.A. in Political Science and a Master of Arts in Sociology from Stanford University, and her J.D. from Yale Law School. Prior to law school, she served as associate director of the African American Policy Forum, a social justice think tank that works to bridge the gap between scholarly research and public discourse related to affirmative action, structural racism, and gender inequality.

ABSTRACT: 

Quality-of-life offenses, or municipal and state criminal laws that purport to regulate social and physical disorder, regularly target people who violate those laws because they engage in routine activities of daily living in public spaces. Most notably, these laws target unsheltered individuals and include a litany of offenses prohibiting activities like public camping, sleeping in public spaces, and disorderly conduct. Plaintiffs challenging these laws and critics of these laws have labeled these laws “status crimes,” or status offenses, because these laws criminalize behaviors inextricably linked with status or derivative of status. Defenders of these laws argue that they serve to promote the general welfare of the community and that these laws provide an effective means to reduce incidents of physical and social disorders. 

They argue that the enforcement of quality-of-life offenses furthers what has long been recognized as a legitimate exercise of state police powers. Such framing by proponents paints an incomplete picture of the nature and function of quality-of-life offenses that target individuals engaged in the routine activities of daily living in public spaces. Quality-of-life offenses are by their nature exclusionary devices; the enforcement of these laws leads to the removal, arrest, and/or punishment of offending individuals whose conduct (allegedly) produces or contributes to social and physical disorder. Viewed in this vein, it becomes clear to see that the function of these quality-of-life offenses is not solely to reduce or eliminate disorders or even promote the general welfare of the community; these laws also function to exclude certain individuals from the physical and normative boundaries of community and subordinate them as outsiders to the community. 

This exclusionary and subordinating functions of these quality-of-life laws pose serious constitutional concerns. Through the stigmatizing effects of criminalization, and the economic losses that criminal legal system involvement produces, the enforcement of certain quality-of-life offenses in particular serves to reinforce the subordinated social position of marginalized groups. This subset of quality-of-life offenses is what I refer to as “status-enforcing criminal laws.” Status-enforcing criminal laws enforce the social position of already marginalized groups. These laws, target for enforcement—including removal, citation, arrest, and detention— individuals whose conduct is inextricably linked with their status or identity. Though the focus of this Article is on quality-of-life offenses targeting unsheltered communities, status-enforcing criminal laws have in recent years targeted trans and gender non-conforming individuals, and historically, have targeted poor and low-income communities. By focusing on status and the status-enforcing features of these quality-of-life offenses, it becomes clear to see that the protections against status crimes under the Eighth Amendment are both underinclusive and ineffective in redressing the scope of the harms posed by status crimes enforcement. 

In light of the status-enforcing harms of criminalization, this Article argues in favor of a new doctrinal home to ground the prohibitions against status offenses: The Fourteenth Amendment. This Article proposes a new account of status crimes that aligns with a deeper understanding of the history and purpose of the Fourteenth Amendment. In so doing, the Article proposes a new, wholistic way of thinking about status crimes that better aligns with the precise constitutional injuries that status offenses pose to individuals targeted by jurisdictions that police these (often life-sustaining) activities in public spaces.