Evanescent Actus Reus Requirement: California Penal Code 647(d) -- Criminal Liability for "Loitering with Intent" Is Punishment for Merely Thinking Certain Thoughts While Loitering Constitutional?

• NCJ Number: 133157
• Journal: Southwestern University Law Review Volume: 19 Issue: 1 Dated: (1990) Pages: 165-203
• Author(s): P Sirkin
• Date Published: 1990
• Length: 39 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

Even though loitering statutes typically have been among those laws most likely to fail the test of constitutional firmity, State legislatures continue to enact statutes that prohibit loitering. California's Penal Code Section 647(d) is such a statute.

Abstract

Both State and Federal courts have declared a number of loitering statutes unconstitutional on the basis of vagueness and/or broadness. Many loitering statutes have been deemed unconstitutional because they criminalize mere presence in a particular place. In 1988, the California Supreme Court upheld Section 647(d) against a vagueness challenge in People v. Superior Court (Caswell). Caswell argued that the law fails to provide adequate notice to citizens of exactly what conduct is prohibited and that it encourages arbitrary and discriminatory enforcement. The California Supreme Court responded by claiming that the word "loiter" as used in the statute has a "sinister or wrongful implication" which precludes the notion that loitering can be interpreted as mere waiting for a lawful purpose. In general, vagrancy laws fail the vagueness test where they do not identify adequate guidelines for law enforcement officers. Because loitering is essentially a lawful act, statutes must specify objective ways of distinguishing between a lawful act committed for an unlawful purpose. Thus, absent adequate law enforcement guidelines, arrests made pursuant to Section 647(d) and similar statutes offend notions of due process and undermine fourth amendment considerations. Statutes are overly broad if they proscribe conduct protected by the first amendment. Statutes that criminalize loitering with an intent to engage in or solicit an unlawful act do not comport with established rules of criminal jurisprudence. They fail to enumerate any unlawful conduct in addition to the lawful act of loitering and thus lack the essential actus reus element. The California Supreme Court has incorrectly sanctioned the criminalization of mere thought by upholding Section 647(d). 228 footnotes