Association With "Bad" People

Abstract

I s IT PERMISSIBLE, in a constitutional system committed to the basic principles of personal liberty, for government to punish a man because of the company he keeps? Does the normal right of the individual to associate with whomever he chooses ever have to yield to some overriding social interest spelled out in the criminal law? Such questions as these have often been debated in American legislative bodies and appellate courts. Whether the state may make keeping bad company a crime or an essential element of a crime has usually arisen in situations involving prosecutions for vagrancy. Every state but West Virginia has some sort of general vagrancy act, and the courts, as a rule, uphold the constitutionality of these statutes as a valid exercise of the police power. Society recognizes, the Supreme Court of Washington once declared, vagrancy is a parasitic disease which, if allowed to spread, will sap the life of that upon which it feeds.' Nevertheless, it has been pointed out that these statutes almost always offend traditional standards of criminal procedure.2 Since one who is arrested as a vagrant must then prove that he does not fall within the statute, the defendant is generally burdened with a presumption of criminality, contrary to the normal presumption of innocence which an accused person carries with him. Furthermore, the vagrancy laws are so broadly and loosely phrased that the police and the magistrates are at liberty simply to apply their own moral standards according to personal taste. These laws also tend to become instruments of police harassment, and are used for making arrests on mere suspicion, although such arrests are universally regarded as illegal in American jurisdictions.