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Sunday, March 28, 2010

Criminalizing Urban Space: Three musings on the Sit-Lie Ordinance

Prologue

Yesterday, the city of San Francisco was awash with protesters against a proposed "sit-lie" ordinance, forbidding the public from sitting or lying on city sidewalks during the daytime. The new ordinance was proposed by Mayor Newsom after a stroll with his baby on Haight and, according to students of mine who attended the police commission meeting, is strongly supported by business owners on Haight street, who ascribed the decline in business over the last two years to the presence of people on the sidewalk.

1. Labeling 

This is hardly the first time law is used to regulate urban space in a way that could be interpreted as a criminalization of the poor. William Chambliss, studying Medievalvagrancy law from a Marxist criminological perspective, argued that the vagrancy offense emerged as a way to regulate labor in a feudal market. Newer scholars, such as Jeffrey Adler, debate that interpretation, arguing that Chambliss' account is full of historical inaccuracies. Nevertheless, the critical criminologists of the 1970s succeeded in introducing a dimension of social conflict and coercion into our assessment of criminal law, and particularly low-level street offenses. A classic 1956 piece by Caleb Foote, for example, provided an ethnography of a vagrancy court in Philadelphia, in which the magistrate seemed to be much more interested in "cleaning trash" off the streets than in listening to what the defendants had to say (check out Jeffrey Skolnick's comments on the piece).

One of the best ways to explain what is going on is by using labeling theory. A predecessor to various critical theories, and somewhat unfairly critiqued by some later theorists for its naïvete, labeling theory changed the focus of criminological inquiries from the question "why do people commit crime?", which assumes a consensus about the definition of crime, to, "how do certain behaviors come to be defined as crime?". Social deviance, as some theorists suggested, is in the eye of the beholder; once a certain social group succeeds in labeling a certain set of behaviors as crime, we come to see the people who engage in that behavior as criminals. And, sometimes, they come to see themselves as criminals.

The sit-lie ordinance is a classic case of an attempt to apply a new label. Haight Ashbury, the neighborhood that prompted Mayor Newsom's enthusiasm for the new ordinance, gets its special character from its 1960s heritage as the cradle of the hippie movement and free love. Back in the sixties, the first generation of hippies forming communes and challenging conventional culture were seen as deviants, but their impact on the city's culture, and beyond, was immense. Today, the tie-dye clothes and head shops are mostly mementos of a time past, and our attitude toward the youth on the sidewalk has also transformed. If the behavior is the same, why the change in attitude?

2. Moral Entrepreneurship

Labeling theory sees the social order as conflict between different groups, all racing to impose their values on society by labeling the behaviors they see as problematic as crime. In this case, business owners at the Haight, and politicians running for office, have incentives to label the sidewalk dwellers as criminals and treat them as such. Greg Kamin's review of the police commission meeting about the sit-lie ordinance is an excellent demonstration of this principle: different stakeholders in the city coming together to fight over labeling this behavior. While the issues at stake are clearly political and ideological, using the law, and particularly the criminal apparatus, to enforce such views is a powerful strategy. After all, the law is seemingly universal in its application: Everyone, not only runaway youth and homeless people, will be forbidden from sitting on the sidewalk, n'est ces pas? As Anatole France said in 1874, "[t]he law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread."

Criminalization of street-level offenses has been a particularly useful political tool for politicians concerned with a "soft on crime" image. As Jonathan Simon argues in Governing Through Crime, this concern transcends political affiliation, and in fact might lead progressive politicians, such as Newsom and Kamala Harris, to initiate legislation of this sort in order to garner legitimacy as guardians of public safety (we examined Harris's proposal here).

3. Practicalities

Whether or not we see the ordinance as a tool for more order and business prosperity or as an instrument of criminalization, the practical question is whether it is necessary. Certainly, it would make the police's job easier in terms of providing grounds for citation or arrest. As characterized by Chron columnist Nevius, the proposal "would restrict sitting or lying on public sidewalks anywhere in the city between 7 a.m. and 11 p.m. First-time violators would be warned to move, then could receive a citation with a $50 to $100 fine. The second violation could result in 10 days in jail or a fine of $300 to $500, and each violation after that would be subject to a $500 fine and 30 days in jail." However, it would be a good thing to consider some of the effects this might have.

Since the targeted offenders would, for the most part, be unable to pay the fine, they'd be shunted to court, where the case would be closed or diverted to the Community Justice Center or to the Mental Health Court, where the same population could end up anyway, for the exact same reasons, if prosecuted for one of numerous violations of the already existing San Francisco Police Code, such as aggressive solicitation.

Epilogue

This may appear to be a fairly narrow example of criminalization, and perhaps less deserving of attention than more dramatic punitive legislation, such as the Three Strikes Law. Nevertheless, street-level quality-of-life crime is a prime example of legislative interests and values and the process of regulating urban space. I suggest staying tuned to this initiative and similar efforts; they can teach us, and our students, a lot about questioning the assumptions behind the legislative process.

Posted by Hadar Aviram on March 28, 2010 at 12:06 PM | Permalink

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Comments

My former colleague, Mark Rosenbaum, persuaded the Ninth Circuit that Los Angeles' anti-sleeping ordinance violated the Eighth Amendment, and filing a good amicus brief before SCOTUS neighboring jurisdictions quickly have gotten rid of their own anti-camping ordinances in the wake of Mark's victory. So I am guessing that an anti-sitting rule will likely be vulnerable to a similar theory.

Posted by: Rick Hills | Mar 28, 2010 12:27:27 PM

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