An Encouraging Decision

The Massachusetts Supreme Judicial Court took a significant and courageous step last week in striking down four ancient laws of the Common-wealth--specifically statutes making it a crime to be a vagrant, a tramp, a vagabond, or a suspicious person abroad in the nighttime and unable to give a satisfactory account of himself. They were laws not often enforced, but it was precisely their erratic and necessarily arbitrary application that made them dangerous.

Two common features characterized the four laws. First, they sought to punish a person for his status rather than his actions: a vagrant or tramp is almost by definition a poor person. Second, they left inordinate discretionary authority with the police: each of the four statutes served as a kind of elastic clause in the absence of specific criminal charges. Each could also be used, theoretically, in organized dragnets launched against whole classes of people. The Cambridge City Administration actually threatened to use the vagrancy laws against local hippies, and might even have gone ahead with this threat except for a loud, well-stated protest from the Civil Liberties Union of Massachusetts.

Last week's Supreme Judicial Court decisions have vast implications for law enforcement in the Commonwealth. In declaring the "abroad in the nighttime" statute unconstitutional, Associate Justice John V. Spalding '20, author of the opinion, wrote that "Suspicion, which is an inadequate ground for arrest is no more satisfactory as a basis for punishment." Similarly Spalding noted that "The use of the vagabond charge rather than a charge of theft or attempted theft suggests an absence of probable cause and the consequent evasion of traditional constitutional safeguards that results when suspicion, which admits of no predictable boundaries, is the basis for arrest and punishment."

A clear corollary of Spalding's opinion is that not only arbitrary law enforcement, but also the laws that lend themselves to it, deserve close judicial scrutiny. In this context, the long-standing practice of holding persons on suspicion of having committed a felony becomes highly questionable. So, probably, does the Commonwealth's recently enacted stop-and-frisk law.

When broad constitutional questions have been put before the Supreme Judicial court in the last few years, it has usually been careful to avoid them. When, for example, it tossed out the Massachusetts Teachers' Loyalty Oath, it did so on narrow grounds which verged on the ridiculous. Now the Court has demonstrated a willingness to tackle major issues of constitutionality, and the change, if in fact it proves to be a change, is a refreshing one.