The Wages of Antiquated Procedural Thinking: A Critique of \u3ci\u3eChicago v Morales\u3c/i\u3e

Ms. D\u27Ivory Gordon, like many of her neighbors, was concerned enough about gang violence in her community to make a public statement about it. She testified in support of a new ordinance designed to help alleviate gang violence in Chicago. The Chicago City Council ultimately adopted the Gang Congregation Ordinance, or as it is more commonly known, the gang loitering ordinance, in the summer of 1992. The Chicago Police Department specified additional enforcement provisions, and began enforcing the ordinance that same summer. Then, in Chicago v Youkhana, the Illinois Appellate Court struck the gang loitering ordinance as facially unconstitutional. The Illinois Supreme Court affirmed this judgment in October of 1997 in Chicago v Morales. This article argues that the Youkhana and Morales decisions are wrong. These decisions, we argue, demonstrate a commitment to an anachronistic and unduly abstract understanding of individual rights—one fashioned to address political conditions that, by and large, no longer characterize American society. Though the residents of inner city communities increasingly demand law enforcement measures in response to the crime problems they face, the understanding of constitutional criminal procedural rights promoted by Youkhana and Morales threatens to hamper and retard the development of innovative community policing measures these citizens desire. This result not only denies communities a useful tool to combat violent crime; it also may harm criminal defendants. Because these judicial attempts to control police discretion will fail in predictable ways, it is likely to remit communities to law enforcement strategies that make offenders worse off than if the courts had upheld Chicago\u27s gang loitering ordinance. This article has four parts. Part I provides more detail about Chicago\u27s gang loitering ordinance—its enactment, enforcement, and purported effects. Part II outlines the Youkhana and Morales decisions and argues that the reasoning of these two opinions is incorrect. This part shows that the courts relied primarily on an outdated interpretation of Papachristou v Jacksonville in order to find that the gang loitering ordinance failed a facial challenge. Part III outlines an alternative way of thinking about protecting rights—an approach that takes into account contemporary social and political circumstances. Finally, Part IV shows how high the stakes are in this debate. Chicago\u27s loitering ordinance is not an isolated example of proactive policing. In fact, many urban areas are involved in sustained projects of law enforcement innovation. While the techniques vary (curfews, loitering laws, loitering with intent, order maintenance policing), each enjoys high levels of support among members of minority communities. Those who challenge these laws typically assume erroneously that such communities are opposed to higher levels of policing. Ignoring the reality of this support harms all residents of affected inner city neighborhoods, whether these residents are considered law breaking or law abiding

Black, White and Gray: A Reply to Alschuler and Schulhofer

The goal of our Article was to expose the anachronistic picture of political reality that informed the Illinois Supreme Court\u27s decision in Chicago v Morales. Relying on civil rights era precedents designed to counteract racist policies aimed at locking minorities out of the community\u27s civic life, the Morales Court\u27s analysis seems to treat Chicago\u27s gang loitering ordinance as if it were indistinguishable from those earlier policies. The truth, we argue, is that the gang loitering law is representative of a new generation of public order provisions that enjoy the enthusiastic sponsorship of minority communities. As a result offundamental reforms in American voting law, these citizens now enjoy significant political strength in the nation\u27s inner cities. They\u27re using that strength to rectify centuries\u27 long denials of effective law enforcement in their communities—the vestiges of which, in the form of high crime rates, continue to stifle the social and economic advancement of American Blacks and Latinos. In these circumstances, we suggest that the most constructive role for courts is no longer to enforce tight constraints on discretionary street policing, but to insist that inner-city communities structure law enforcement in a way that doesn\u27t dissipate their own political incentives to police their police. We believe that the Chicago gang loitering law meets this standard. Alschuler and Schulhofer critique our account of the politics behind the gang loitering law as well as our general argument about the significance of minority political empowerment for criminal procedurejurisprudence. We respect the questions they raise and the doubts they pose, but we believe, nevertheless, that their conclusions are wrong. We first take up their description of the factual background of the gang loitering ordinance—the part of their response that is easiest to rebut—and then address the admittedly difficult points they raise about the relationship between the political process and constitutional rights

Law and (Norms of) Order in the Inner City

This article surveys recent works that seek to enrich criminal law policy analysis by incorporating social norms. The article does not purport to adduce the true or even the best definition of social norms ; rather it breaks that term down into a cluster of related concepts that are frequently subsumed within it, including social organization, social meaning, and social influence. The motivation for grouping these concepts together, moreover, is as much political as conceptual. Using a pragmatic standard of assessment, the article uses the social norms literature to identify a host of politically feasible law enforcement policies—from curfews to gang-loitering laws to order-maintenance policing to reverse stings—that deter as well or better than severe prison sentences but that avoid the destructive effect of those sentences on inner-city communities

The Wages of Antiquated Procedural Thinking: A Critique of \u3ci\u3eChicago v Morales\u3c/i\u3e

Ms. D\u27Ivory Gordon, like many of her neighbors, was concerned enough about gang violence in her community to make a public statement about it. She testified in support of a new ordinance designed to help alleviate gang violence in Chicago. The Chicago City Council ultimately adopted the Gang Congregation Ordinance, or as it is more commonly known, the gang loitering ordinance, in the summer of 1992. The Chicago Police Department specified additional enforcement provisions, and began enforcing the ordinance that same summer. Then, in Chicago v Youkhana, the Illinois Appellate Court struck the gang loitering ordinance as facially unconstitutional. The Illinois Supreme Court affirmed this judgment in October of 1997 in Chicago v Morales. This article argues that the Youkhana and Morales decisions are wrong. These decisions, we argue, demonstrate a commitment to an anachronistic and unduly abstract understanding of individual rights—one fashioned to address political conditions that, by and large, no longer characterize American society. Though the residents of inner city communities increasingly demand law enforcement measures in response to the crime problems they face, the understanding of constitutional criminal procedural rights promoted by Youkhana and Morales threatens to hamper and retard the development of innovative community policing measures these citizens desire. This result not only denies communities a useful tool to combat violent crime; it also may harm criminal defendants. Because these judicial attempts to control police discretion will fail in predictable ways, it is likely to remit communities to law enforcement strategies that make offenders worse off than if the courts had upheld Chicago\u27s gang loitering ordinance. This article has four parts. Part I provides more detail about Chicago\u27s gang loitering ordinance—its enactment, enforcement, and purported effects. Part II outlines the Youkhana and Morales decisions and argues that the reasoning of these two opinions is incorrect. This part shows that the courts relied primarily on an outdated interpretation of Papachristou v Jacksonville in order to find that the gang loitering ordinance failed a facial challenge. Part III outlines an alternative way of thinking about protecting rights—an approach that takes into account contemporary social and political circumstances. Finally, Part IV shows how high the stakes are in this debate. Chicago\u27s loitering ordinance is not an isolated example of proactive policing. In fact, many urban areas are involved in sustained projects of law enforcement innovation. While the techniques vary (curfews, loitering laws, loitering with intent, order maintenance policing), each enjoys high levels of support among members of minority communities. Those who challenge these laws typically assume erroneously that such communities are opposed to higher levels of policing. Ignoring the reality of this support harms all residents of affected inner city neighborhoods, whether these residents are considered law breaking or law abiding

Black, White and Gray: A Reply to Alschuler and Schulhofer

The goal of our Article was to expose the anachronistic picture of political reality that informed the Illinois Supreme Court\u27s decision in Chicago v Morales. Relying on civil rights era precedents designed to counteract racist policies aimed at locking minorities out of the community\u27s civic life, the Morales Court\u27s analysis seems to treat Chicago\u27s gang loitering ordinance as if it were indistinguishable from those earlier policies. The truth, we argue, is that the gang loitering law is representative of a new generation of public order provisions that enjoy the enthusiastic sponsorship of minority communities. As a result offundamental reforms in American voting law, these citizens now enjoy significant political strength in the nation\u27s inner cities. They\u27re using that strength to rectify centuries\u27 long denials of effective law enforcement in their communities—the vestiges of which, in the form of high crime rates, continue to stifle the social and economic advancement of American Blacks and Latinos. In these circumstances, we suggest that the most constructive role for courts is no longer to enforce tight constraints on discretionary street policing, but to insist that inner-city communities structure law enforcement in a way that doesn\u27t dissipate their own political incentives to police their police. We believe that the Chicago gang loitering law meets this standard. Alschuler and Schulhofer critique our account of the politics behind the gang loitering law as well as our general argument about the significance of minority political empowerment for criminal procedurejurisprudence. We respect the questions they raise and the doubts they pose, but we believe, nevertheless, that their conclusions are wrong. We first take up their description of the factual background of the gang loitering ordinance—the part of their response that is easiest to rebut—and then address the admittedly difficult points they raise about the relationship between the political process and constitutional rights

Law and (Norms of) Order in the Inner City

This article surveys recent works that seek to enrich criminal law policy analysis by incorporating social norms. The article does not purport to adduce the true or even the best definition of social norms ; rather it breaks that term down into a cluster of related concepts that are frequently subsumed within it, including social organization, social meaning, and social influence. The motivation for grouping these concepts together, moreover, is as much political as conceptual. Using a pragmatic standard of assessment, the article uses the social norms literature to identify a host of politically feasible law enforcement policies—from curfews to gang-loitering laws to order-maintenance policing to reverse stings—that deter as well or better than severe prison sentences but that avoid the destructive effect of those sentences on inner-city communities