Anti-Loitering Laws: A History of the Criminalization of Literally Just Being

5/5/2022-Written by S.J.

It goes without saying (and yet, we’re saying it) that the alternate title for this article could have been “Anti-Loitering Laws: A History of the Criminalization of Literally Just Being…Black.” Anti-loitering laws were the love children of Reconstruction-era “black codes” and ever-present white fear. While the laws have changed–in both name and detail–over the years, their racist and oppressive overtones continue to result in the disproportionate targeting of members of the Black community by the powers that be. 

Passed extensively throughout the American South after the conclusion of the Civil War, “black codes” were enacted to facilitate the continued subjugation of Black bodies in a post-slavery world. The laws varied from state to state and often placed restrictions on property ownership for Black people and what types of employment they were allowed to seek. The laws were also heavily focused on perceived vagrancy–which included ‘crimes’ such as missing a tax payment, loitering, failing to obtain proof of employment, standing outside of a business, or even keeping an untidy home. 

“Black code” laws benefited white landowners in many ways as well. After the Civil War, when slavery was officially abolished (we certainly aren’t suggesting there weren’t still enslaved people in the U.S. well after the end of the war, because, of course, there were) white plantation owners lost much of their unpaid labor force. However, a “black code” violation was punishable by enforced labor. Black prisoners were sent to farms and plantations or assigned to the construction of public works projects. As a result, white landowners and an all-white government were able to continue benefiting from the free labor of Black bodies as they had during slavery. 

It is worth noting that “black codes'' were being enforced by white militia groups, the Ku Klux Klan, vigilantes, and, of course, an entirely white and newly established system of modern policing. The police structure was so new that most of the South had yet to construct prisons, opting instead to send prisoners to farms and workhouses. During slavery, modern police did not yet exist. Instead, the Slave Patrol was invented. Groups of white patrollers were responsible for stopping uprisings, as well as finding and returning enslaved people who managed to escape. The Slave Patrol is believed to have been the earliest form of modern-day policing. 

“Black codes” were quickly adopted across the South. They remained in effect, essentially continuing to halt the Black community’s prospects of freedom and economic autonomy, until after Southern states were forced into military rule. At which point, Congress had just passed the Civil Rights Act of 1866 and the 14th Amendment (citizenship and equal protection) was soon to be ratified. In 1870 the 15th Amendment was ratified, promising Black men the right to vote. 

These new developments sounded positive in theory, but in reality, even under military rule “black codes” continued to be disguised as vagrancy laws, adopting new, race-neutral language but still disproportionately affecting Black men—as was the intent of lawmakers. To make matters worse, militia groups and the Ku Klux Klan were now running rampant, threatening violence and even lynchings to Black men presumed to be ‘vagrant’ (a vague definition interpreted by violent racists) or those seeking to exercise their newly afforded rights, such as voting. 

The new vagrancy laws made way for segregation era Jim Crow laws in the late 1800s. Segregation’s “separate but equal” concept reinforced the idea that vagrancy and anti-loitering laws could be used to monitor who was allowed in spaces, such as public streets, that were not covered by formal segregation laws. The police could be alerted about Black “vagrants” and “loiterers” who were doing nothing more than existing too close to white neighborhoods. If you’ve ever logged into the Nextdoor app, you know this practice is still alive and well. 

After segregation formally ended, anti-loitering laws became more specific in nature but remained vague enough that “concerned citizens” could continue to call the authorities on people of color for arbitrary reasons while in public (Permit Patty, BBQ Becky, etc.) and in places of business (Starbucks and L.A. Fitness were both recently in the news for this).

Modern manifestations of anti-loitering laws lean into the idea that someone who appears to be out of place can be stopped and frisked, pulled over, questioned, or arrested…or worse. This has consistently translated into white police officers overwhelmingly targeting people of color on account of racial bias (if you have not read the recent report from the Minnesota Department of Human Rights, here’s that story). 

In certain cases, yes, even recently, “concerned citizens” have attempted to use anti-loitering laws to justify modern vigilantism. In 2020 a Black man named Ahmaud Arbery was murdered in Georgia by three white men (one of whom was a former police officer) while he was on an afternoon jog in a suburban neighborhood. The killers later asserted they thought he was a burglar. 

Anti-loitering laws have changed immensely since their inception, but they continue to do exactly what they were designed to do—maintain control over bodies of color in public spaces.