NCJ Number
17705
Journal
Albany Law Review Volume: 38 Issue: 2 Dated: (1974) Pages: 363-385
Date Published
1974
Length
23 pages
Annotation
IN PEOPLE V. BRECK (1976), THE STATE COURT OF APPEALS DECLARED THE STATUTE UNCONSTITUTIONALLY VAGUE AND BROAD SINCE IT FAILED TO GIVE ADEQUATE NOTICE OF PROHIBITED CONDUCT OR PROVIDE STANDARDS FOR ARREST AND CONVICTION.
Abstract
SEVERAL LOWER STATE COURT DECISIONS PRIOR TO THIS RULING, BOTH UPHOLDING AND DENYING THE CONSTITUTIONALITY OF THIS STATUTE, ARE NOTED AND DISCUSSED. ANTI-LOITERING STATUTES IN GENERAL ARE ALSO EXAMINED IN RELATION TO THEIR POTENTIAL FOR GIVING EXCESSIVE POWER TO POLICE WHICH COULD LEAD TO POLICE HARASSMENT, DENIAL OF DUE PROCESS IN COURT PROCEEDINGS, AND IMPINGEMENT UPON THE RIGHT TO TRAVEL. THE AUTHOR SUGGESTS REPLACING THE STANDARDS PRESENTLY USED FOR ANTI-LOITERING ARRESTS WITH THOSE CURRENTLY USED IN STREET INTERROGATION-TYPE SITUATIONS. OTHER ALTERNATIVE APPROACHES MENTIONED INCLUDE DRAFTING AN EXPLICIT ANTI-LOITERING STATUTE, CONFINING SUCH STATUTES TO THOSE PROHIBITING LOITERING FOR SPECIFIED PURPOSES, AND ENFORCING OTHER STATUTES IN THE BOOKS WHICH COULD CONTROL LOITERING OFFENSES. THE AUTHOR CONCLUDES THAT CRIMINAL STATUTES GOVERNING THIS TYPE OF CONDUCT SHOULD BE CONFINED SO AS TO REQUIRE 'MENS REA' AS AN ELEMENT OF THE OFFENSE, THEREFORE ELIMINATING EXCESSIVE POLICE DISCRETION, AND SHOULD PROBABLY BE ABANDONED ENTIRELY.