Skip to main content
  1. Home
  2. Stories
  3. Vagrancy & Discriminatory Policing

Vagrancy & Discriminatory Policing

By Amelia Schwensen; K. Jagodinsky, ed.

Case ID: hc.case.ne.0930

Nebraska’s statute, unchanged from 1875 to 1899, that defined vagrancy in the criminal codes.
Figure 1: Nebraska’s statute, unchanged from 1875 to 1899, that defined vagrancy in the criminal codes. Full text reads: "6906 SEC. 242. [Vagrants.] All idle persons not having visible means of support and maintenance and who live without employment, and all persons wandering abroad and living in taverns, groceries, beer houses, market places, sheds, barns, or in open air, and not giving a good account of themselves, and all persons wandering about and begging, or who go about from door to door, or from place to place, or occupy public places for the purpose of begging and receiving alms, and all prostitutes, and all keepers, occupants, lessees, tenants, and pimps of houses used for prostitution or gambling, shall be deemed and are hereby declared to be vagrants; and upon conviction thereof shall be fined not exceeding fifty dollars, or imprisoned in the jail of the county not exceeding three months, and be subject to hard labor in said jail or elsewhere in the county, as the court may order; Provided, That any person so convicted, who shall be disqualified for manual labor by physical inability, and shall be a proper object for relief, shall be sent to the alms house of the proper city or county, or otherwise cared for, according to law. [Amended 1875, 16.]"

Legislators in the Gilded Age and Progressive Era considered vagrancy a moral failing and made it illegal in order to promote social reform. However, laws against vagrancy were often vague and subjective, making these laws easily misused for profiling. Nebraska’s statute, unchanged from 1875 to 1899, defined vagrancy in the criminal codes under section 242 as seen in Figure 1.[1]

Despite the Nebraska statute’s specific references to particular occupations and practices, a closer reading reveals that it is extremely subjective. For instance, anyone could be suspected of “not giving a good account of themselves.” With such broad leeway, a police officer could choose virtually anyone off the street and arrest them for vagrancy. Those who found themselves wrongfully arrested on charges of vagrancy could petition for habeas corpus. Habeas corpus protects citizens from wrongful arrests, ensuring that proper procedures are followed.

Historic habeas petitions in Douglas County, Nebraska reveal that Omaha police used vagrancy laws for discriminatory purposes. Petitioners filed habeas corpus when vagrancy arrests contained targeted enforcement or technical errors. Targeted enforcement petitions fall into two gendered categories, women being wrongfully arrested as prostitutes and men being arrested for having “suspicious character.” Technical petitions rest on a procedural error occurred in a “just” vagrancy arrest, such as exceeding the maximum fine or jail sentence for the charge.

Order commanding the Omaha Chief of Police to release Claus Hubbard, 'you unlawfully deprived of his liberty as is alleged together with the cause of his detention'. Links to full image.
Order commanding the Omaha Chief of Police to release Claus Hubbard, 'unlawfully deprived of his liberty as is alleged together with the cause of his detention'."

An informative example of targeted enforcement comes from Claus Hubbard’s habeas corpus case. Hubbard was an African American attorney and a prominent member of his community. In 1895 he was the president of the Colored Republican Club, and he controlled the 3rd Ward's political landscape in that era.[2] As an attorney, Hubbard often visited the jail and offered pro bono services to members of his community who were questionably arrested.[3] Such cause lawyering is allegedly what landed him on the wrong foot with the local police and subsequently in jail.

Claus Hubbard was arrested for vagrancy on November 25, 1898.

The police sergeant denied Hubbard his right to speak to an attorney, and could not tell his attorney the arrest charge. As explained in the habeas corpus petition, “It is the custom of the chief of police of the city of Omaha to arrest persons and throw them into jail for the purpose of compelling them to leave the city of Omaha. That the Petitioner is a negro and that he protested to the Chief of Police against his throwing other negros in jail without cause… the chief threatened him, the petitioner, with the same kind of treatment.”[4] Judge Cunningham approved the petition for habeas corpus and ordered a hearing. A local newspaper reported, “The court ordered [Hubbard’s] release using the occasion to inform the police officers present, the Chief White in particular, that any policeman attempting to arrest any citizen without due process of law virtually takes his life in his own hands… At this Hubbard looked hard at the policeman and bowed his head in empathetic assent several times.”[5] Unfortunately, this admonishment appeared to have no influence on police behavior.

The use of habeas corpus against vagrancy policing highlights political tensions in this time period. In the Progressive Era, there was an increased emphasis on policing social vices, as social reformers were the driving political force. However, this policing led to discrimination against various groups of people. Claus Hubbard's case, among others, demonstrates that this political tension was likely racialized. In 1906, Mayor Dahlman of Omaha pardoned 100 petty criminals as a statement against police practices. Of these arrests, thirty-six of them were for vagrancy, the largest proportion of arrest type.[6]

Despite Dalhman’s censure and intervention, Omaha’s vagrancy policing continued well into the 1920s and beyond. As a Northwestern researcher explained in 1957, “ Nebraska and Pennsylvania have similar common law vagrancy statutes, yet Omaha has nearly 16 times as many vagrancy arrests proportional to population as Philadelphia. The inference would be that Omaha uses the

vagrancy label as a routine measure for suspicion detentions whereas Philadelphia does not.”[7] The Federal Supreme Court recognized the misuse of vagrancy in 1972 and ruled that vague vagrancy laws were unconstitutional in Papachristou v. City of Jacksonville.[8] Claus Hubbard's case illuminates efforts to impose checks and balances on police power nearly a century earlier. Before vagrancy laws were removed by the supreme court, habeas corpus assisted individuals who were wrongfully arrested. While checks and balances on police power may never be perfect, habeas corpus will always be there to free individuals wrongfully arrested like Hubbard.

  1. [1] Compiled Statutes of the State of Nebraska 1881 with Amendments 1882 to 1897, Comprising All Laws of a General Nature in Force July 10, 1897. Lincoln, State Journal Co. HeinOnline, https://heinonline-org.libproxy.unl.edu/HOL/P?h=hein.sstatutes/softebra0001&i=1397.
  2. [2] “Passing of Nate Brown.” Omaha Daily Bee, 8 May 1901, Nebraska Newspaper, https://nebnewspapers.unl.edu/lccn/sn99021999/1901-05-08/ed-1/seq-2/#words=Claus+Hubbard.
  3. “Meeting was out of sight.” Omaha Daily bee, 7 September 1895, Nebraska Newspaper, https://nebnewspapers.unl.edu/lccn/sn99021999/1895-09-07/ed-1/seq-7/#words=Claus+Hubbard.
  4. [3] “Two habeas corpus cases.” Omaha Daily Bee, 27 Nov. 1898, Nebraska Newspapers, https://nebnewspapers.unl.edu/lccn/sn99021999/1898-11-27/ed-1/seq-7/#words=Hubbard+Hubbard%27s.
  5. [4] Katrina Jagodinsky, Cory Young, Andrew Varsanyi, Laura Weakly, Karin Dalziel, William Dewey, Erin Chambers, Greg Tunink. “In the Matter of the Application of Claus Hubbard for a Writ of Habeas Corpus.” Petitioning for Freedom: Habeas Corpus in the American West, 1812-1924, University of Nebraska–Lincoln. Accessed July 13, 2023. https://petitioningforfreedom.unl.edu/cases/item/hc.case.ne.0930
  6. [5] “Two habeas corpus cases.” Omaha Daily Bee, 27 Nov. 1898, Nebraska Newspapers, https://nebnewspapers.unl.edu/lccn/sn99021999/1898-11-27/ed-1/seq-7/#words=Hubbard+Hubbard%27s.
  7. [6] “Record pulled on mayor.” Obama Daily Bee, 12 Oct. 1906, Nebraska Newspapers, https://nebnewspapers.unl.edu/lccn/sn99021999/1906-10-12/ed-1/seq-7/#words=vagrancy.
  8. [7] Foote, Caleb. "Law and Police Practice: Safeguards in the Law of Arrest ." Northwestern University Law Review, vol. 52, no. 1, 1957-1958, pp. 16-45. HeinOnline,
  9. https://heinonline-org.libproxy.unl.edu/HOL/P?h=hein.journals/illlr52&i=33.
  10. [8] Papachristou v. City of Jacksonville, 405 U.S. 156 (1972)

Back to Stories

Back to top