The ACLU testified January 24 to the D.C. Council on severe legal weaknesses of the current "prostitution-free zone" (PFZ) law and a new bill that would make them permanent. (Full written statement is here.)
Volunteer attorney Rob Gorman, testifying for the ACLU, warned the Council about such laws that make it a crime to loiter under “circumstances” where an officer suspects (but can't prove) that criminal activity may be afoot.
Said Gorman, "The problem with cutting out the legal standard known as probable cause (the legal basis for any arrest) and substituting just an officer’s assessment of the 'circumstances' is that this shortcut will inevitably create a law that is unconstitutionally vague. As ACLU testified years ago when this bad idea first came up, this is a fundamental flaw in both the existing PFZ law and the proposed expansion."
A law is unconstitutionally vague if it leaves too much discretion in the hands of individual officers on the beat to enforce the law in an arbitrary and discriminatory fashion.
Testimony from representatives of the D.C. Attorney General and the Metropolitan Police Department added pressure on the Council to shelve the pending bill, introduced by Council Member Yvette Alexander in response to concerns of residents in the Eastern Avenue section of her Ward 7 area. The District's top lawyer sent word of "substantial concerns about the bill…as it relates to constitutional soundness and practical utility." The MPD admitted they'd never made an arrest under the existing law and said calls about prostitution problems are down District-wide and the law has had little to do with it.
Witnesses from a broad spectrum of advocacy groups also joined in warning the bill would do little to help prostitutes who want to leave the trade and could give a free hand to police to harass especially transgender persons based on unfounded suspicions and profiling.
The Washington Post reported that the bill's principal sponsor "appeared to concede that there was little chance of the bill passing in its current form" (to allow permanent PFZ).
The ACLU has long favored the decriminalization of prostitution. With decriminalization, prostitution could be much more effectively policed regarding health, safety and working conditions, just as tobacco can be more effectively regulated than marijuana. Decriminalization would also enable the government for the first time to provide effective services to those who find themselves trapped in street-level prostitution, and to take effective action to reduce the supply for this unsavory activity.
"After literally centuries of ineffective efforts to stamp it out through criminal sanctions," the ACLU told the Council, "it is time to try something new."
Video of the January 24, 2012, Council hearing is available, with ACLU testimony at 1:39:00.