Speaker Series: Jamelia Morgan
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 offenses 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. Proponents of these laws argue that they serve to promote the general welfare of the community and that they 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.
This framing by proponents paints an incomplete picture of the nature and function of quality-of-life offenses that target individuals engaged in 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 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 community.
This exclusionary function of these quality-of-life laws poses serious constitutional concerns. Through community exclusion, and the stigma and costs that attach to those who are targeted under enforcement regimes, these laws are also status-enforcing. Through the stigmatizing effects of criminalization, and the economic losses that criminal legal system involvement produces, the enforcement of quality-of-life offenses in particular serves to reinforce the social position of marginalized groups. After all, these laws target for removal, citation, and arrests individuals whose life-sustaining conduct must take place in public spaces because they have nowhere else to go. If laws regulating disorder target for enforcement—including removal, citation, arrest, and detention— individuals whose conduct is inextricably linked with their status or identity, then what’s at stake is more than solely the criminalization of status per se but rather criminalization that contributes to the continued subordination of that group, or groups, within society.
The status-enforcing effects of criminalization stem not only from the meaning of status vis-à-vis criminal sanction itself, but also from the interaction between the status and the broader political economy. Where these laws criminalize conduct based on necessary activities of daily living, these laws locate the harms of enforcement within a largely sociopolitical setting, one that may render conduct practically compulsory (though factually voluntary) only insofar as the state and local jurisdiction have failed to adequately fund social services and programs, whether affordable and accessible housing, medical and mental health care, and other supports. Framed in this way, the status offenses at issue in contemporary cases are of a different nature from the status crimes at issue in Robinson and Powell. Yet, the “new” status crimes still fall under the Eighth Amendment’s prohibition against cruel and unusual punishment. As a constitutional matter, the punishing of status today is much more about the lack of social investments than it is about the culpability, precise conduct, or volitional capabilities posed by the specific “offender.”
Despite extensive scholarly discussions on the constitutional regime governing the criminalization of status, the exclusionary and subordinating features of these laws punishing violations of quality-of-life offenses and other disorders have been largely ignored. Indeed, most scholarly discussions debate how to define constitutionally prohibited status crimes. Primarily, scholars focus on such questions as whether certain conditions, like homelessness, count as statuses, and how to delineate the boundaries that govern which kind involuntary acts fall within the scope of prohibited status crimes when the individual (arguably) lacks the choice to restrain from violating the law.
Jamelia Morgan’s article proposes a more expansive, yet still practical, reading of Robinson and Powell that better aligns with a textualist and historical understanding of the Eighth Amendment. It also deploys an intertextual approach to propose a reading more aligned with an antisubordination reading of the Fourteenth Amendment. This reading also better aligns with the precise constitutional injuries that status offenses pose to individuals targeted by jurisdictions for quality-of-life policing specifically. Through providing a structural analysis of quality-of-life policing, the article both defines status-based crimes and explains why many of these laws should be viewed as constitutionally prohibited status-based offenses. Ultimately, relying on Robinson and Powell, this article calls for these opinions to be applied to the current social context where political and economic factors drive mass criminalization, and identifies new frameworks for understanding status crimes.
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Jamelia Morgan is a Professor of Law at Northwestern University Pritzker School of Law. She is an award-winning and acclaimed scholar and teacher focusing on issues at the intersections of race, gender, disability, and criminal law and punishment. 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.
Morgan received a B.A. in Political Science and a M.A. 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.