Disorderly conduct may well be one of the most frequent misdemeanor charges. So why would anyone suggest that disorderly conduct as a charge be abolished? Whether you ultimately agree there is a need for reform or not this new article by Rachel Moran recently posted to SSRN is thought provoking. Here is its abstract:
Disorderly conduct laws are weapons the powerful wield against the unpopular. All fifty states and many municipalities have disorderly conduct laws that criminalize speech and conduct ranging from unreasonable noise to opprobrious language. Although these laws are facially neutral, their astounding breadth and vagueness serve as a rubber stamp for law enforcement to surveil and criminally charge marginalized people. Their targets include communities of color, people with unpopular religious or political beliefs, and people whose mental health struggles render them incapable of complying with societal expectations of order.
While courts and scholars have criticized these laws for decades, none have explicitly called for their abolition. This article does so. The article examines both the constitutional flaws of disorderly conduct laws and the many societal harms they enable, before ultimately concluding that any minimal good they accomplish cannot justify the damage they inflict.
Amidst a growing national reckoning over the crisis of abusive and discriminatory policing, this article provides a timely critique of the criminal laws that empower such policing. It uses disorderly conduct laws as a lens through which to examine the extraordinary costs of overcriminalization and the vulnerable people who most often bear the brunt of such costs. While disorderly conduct laws are not the only criminal laws legislatures should consider eliminating, they are both constitutionally and socially problematic to a degree few other criminal laws achieve
Yes, I believe that this change is long overdue; the charge of disorderly conduct should be eliminated (though, of course, this is on a state-by-state basis). Disorderly conduct is poorly defined and unevenly applied; this charge is amongst the most common that I expunge, every day. Here in The Commonwealth of Virginia, the very same charge can be found in our list of Virginia Criminal Charges as both a local ordinance violation and a misdemeanor. The difference as to which is charged can be arbitrary. The description of this charge includes and can be alternatively applied to the very appearance – as determined by law enforcement personnel, on the ground – of being drunk (with the distinction that this condition is presented “in public,” but, exactly what constitutes the public space is not defined), using profanity (once again, there is no given set of words that constitute what make for a chargeable utterance nor description of or reference to whether a simple gesture could be sufficient to run afoul of the law), and being – somehow – out of “order,” or in an that undefined, nebulous, highly subjective state of “disorder.” Law enforcement and the courts should be relieved of responsibility to enforce this statute.