Local policies that delegate to police greater authority to maintain

order are

Acknowledging the potential for police abuse, the Supreme Court has held in

For the last several decades, conservative commentators have called for a

The Morales case was decided without much attention to race. Race did not play

In this Foreword, I endorse the new attention paid to the relationship between

Upholding the Chicago ordinance would have legitimated the already prevalent

The Supreme Court held that the Chicago gang-loitering ordinance violated the

due process clause of the Constitution because it was an excessively vague

impairment of citizens' personal liberty to move freely on the streets.(16)

Although this constitutional flaw can be explained in race-neutral terms, in

Chicago it resulted in a particular racial injury; the gang-loitering law

disproportionately violated the rights of Black and Latino citizens.(17) One

of the main problems with vague statutes is their capacity to further racial

injustice in the criminal justice system. Examining the relationship between

racial inequality and the vagueness doctrine in the context of Morales helps

to illuminate the political basis for this important constitutional shield

against police abuse.

Vague statutes pose two problems: when criminal codes fail to clearly define

the offense, citizens may not understand what conduct is prohibited and police

are likely to enforce the law in an arbitrary and discriminatory manner.(18)

The Chicago law's definition of loitering raised both of these problems. The

ordinance directed police officers who observe anyone whom they reasonably

believe to be a gang member standing in any public place "with no apparent

purpose" with one or more other persons to order the entire group to leave the

area.(19) Officers were permitted to arrest anyone who fails to promptly obey

the dispersal order.(20) The prohibition against remaining in a place without

an "apparent purpose" offers no guidance for determining what behavior an

officer might consider illegal. How can someone standing on a Chicago sidewalk

predict an observing officer's interpretation of her reason for being there?

This confusion arises not because the statute's words themselves are

ambiguous, but because they literally encompass so many innocent acts. The

Illinois court pointed out, for example, that "a person waiting to hail a

taxi, resting on a corner during a jog, or stepping into a doorway to evade a

rain shower has a perfectly legitimate purpose in all of these scenarios;

however, that purpose will rarely be apparent to an observer."(21) The Chicago

City Council certainly meant to leave these harmless instances outside the

law's reach. The United States Supreme Court similarly noted that the

ordinance reaches "a substantial amount of innocent conduct."(22) Writing for

the majority, Justice John Paul Stevens remarked, "It matters not whether the

reason that a gang member and his father, for example, might loiter near

Wrigley Field is to rob an unsuspecting fan or just to get a glimpse of Sammy

Sosa leaving the ballpark."(23) In either case, an officer must order the

couple to move along if their purpose for standing there is not obvious.

On the other hand, the City Council clearly did intend that the gang-loitering

ordinance prohibit gang members from congregating in the streets for the

apparent purpose of recruiting members or intimidating residents. Yet this

behavior would fall outside the literal definition of loitering.(24) These

inconsistencies between the ordinance's terms and the legislative intent

suggest that police officers are expected to make subjective judgments,

unrelated to the specific language of the ordinance, about which citizens to

arrest. Rather than coherently delineate the behavior that the ordinance bans,

the City Council left it to the police to distinguish between criminal and

legitimate public presence.(25)

For this reason, the law's broad language was also an invitation to police

abuse. Giving police officers the authority to determine on the spot the

legality of conduct creates the chief evil of vague criminal statutes. As the

Court recognized in prior decisions, "the most important aspect of the

vagueness doctrine is `... the requirement that a legislature establish

minimal guidelines to govern law enforcement."'(26) Without these guidelines,

police have a tendency to enforce the law against groups that they

despise.(27) The city council deliberately made the law's reach exceptionally

wide "so that persons who are undesirable in the eyes of the police and

prosecutors can be convicted even though they are not chargeable with any

other particular offense."(28) The Chicago Police Department took full

advantage of the leeway the ordinance granted. From 1992 until 1995, police

issued over 89,000 orders to disperse and arrested over 42,000 people for

disobeying their orders.(29) This is the point of vague loitering laws: they

permit the police to haul off the streets people who look suspicious even

though they have committed no criminal conduct. In fighting its gang problem,

the courts concluded, "the city cannot empower the police to sweep undesirable

persons from the public streets through vague and arbitrary criminal

ordinances."(30)

Loitering laws inevitably involve judgments about people's criminal

propensity. They embody legislative predictions about the likelihood that

people engaged in certain activities, bearing certain characteristics, or

belonging to certain groups will engage in criminal activity. This preventive

measure is justified as a means of removing crime-prone people from the

streets before they have a chance to break the law. Loitering laws, then, give

the state an advantage in fighting crime and maintaining public order. The

vaguer the law, the greater the benefit it provides as a prophylactic

tool.(31) The Supreme Court has determined that vague loitering laws'

infringement of liberty outweighs any benefit for law enforcement these laws

offer.(32) Why should we fear so much the state's power to identify people

with a propensity for crime and to remove them from the streets when this

power might help to guarantee safer neighborhoods?

One answer is that expansive and ambiguous allocations of police discretion

are likely to unjustly burden members of unpopular or minority groups.(33)

Papachristou v. City of Jacksonville, perhaps the Supreme Court's most

important invalidation of vague loitering laws, suggests this rationale.(34)

Papachristou involved the convictions of eight defendants for violating a

Florida vagrancy ordinance, including two Black men and two white women who

were stopped while driving together on the main street in Jacksonville and an

organizer for a Black political group who was standing on a downtown street

waiting for a friend. Papachristou dealt a blow to state vagrancy laws passed

by most Southern states during the Jim Crow era as part of a regime of

official white supremacy.(35) In striking down the Jacksonville ordinance, the

Court emphasized its impact on groups disfavored by the majority:

Those generally implicated by the imprecise terms of the ordinance-poor

people, nonconformists, dissenters, idlers--may be required to comport

themselves according to the lifestyle deemed appropriate by the

Jacksonville police and the courts. Where, as here, there are no standards

governing the exercise of the discretion granted by the ordinance, the

scheme ... furnishes a convenient tool for "harsh and discriminatory

enforcement by local prosecuting officials, against particular groups

deemed to merit their displeasure."(36)

The state's presumption that individuals who violated the ordinance were

potential criminals, the Court concluded, was "too precarious" a basis for

violating the even-handed rule of law.(37)

Justice Douglas, the author of the Papachristou opinion, had elaborated this

minority-protecting rationale of vagueness doctrine in an earlier law review

article.(38) Douglas argued that the minority groups who were typically

subjected to vague loitering statutes needed strong constitutional safeguards

because these groups lacked "the prestige to prevent an easy laying-on of

hands by the police."(39) The majority cannot be trusted to balance fairly the

liberty interests of devalued minority groups who bear the brunt of vague

loitering laws against the majority's interest in law and order.(40)

The disproportionate arrest of minorities in Chicago is typical of the racial

breakdown of arrests for this type of misdemeanor offense in cities across the

country. In 1995, 46.4% of persons arrested for vagrancy and 58.7% of persons

arrested for suspicion in cities in the United States were Black although

Blacks made up only 13% of city population.(41) Evidence of racial

discrimination buttressed the Ohio Supreme Court's decision to strike down a

municipal ordinance that prohibited loitering for drug-related purposes.(42)

Noting arrest statistics that showed that police enforced the ordinance

"almost exclusively against African-Americans," the court concluded that

"[t]he inference is clear: police are more likely to believe that a Black

person is loitering `under circumstances manifesting the purpose to engage in

drug-related activity' than they are to believe that a white person is."(43)

As I discuss in Part III, the racial disparity in loitering arrests is part of

pervasive discrimination by police officers in their decisions to stop,

detain, and arrest Black citizens.(44) The discretion police officers have to

decide who to stop and whether to make an arrest generally contributes to

racial discrimination in police conduct.(45) The practical effect of deference

to police judgment of reasonable suspicion "is the assimilation of police

officers' subjective beliefs, biases, hunches, and prejudices into law."(46)

The discriminatory impact of discretion is magnified tremendously by laws that

leave not only the determination of suspicion but the very definition of

offending conduct almost entirely to an officer's judgment.

The peculiar scope of the Chicago ordinance made it especially likely that

police would target minority youth. The ordinance permits arresting officers

to disrupt a gathering based on their suspicion that one person is a gang

member. Identification of someone as a gang member is highly associated with

his race. Police not only believe that most gang members belong to minority

groups; they also believe that many, if not most, inner-city minority youth

are gang members. Astonishing proportions of Black youth appear on the police

lists of probable gang members in some cities. In Denver and Los Angeles, for

example, nearly half of the cities' young Black men have been marked as

suspected gang bangers.(47) In these cities, virtually any group of Black

teenagers standing on an inner-city street would risk arrest for violating a

gang-loitering law.(48)

Regulations implementing the gang-loitering ordinance also tended to single

out minority youth for arrest. The General Order providing guidelines to

police restricted enforcement to designated areas frequented by gang members

and significantly affected by gang presence.(49) Because Chicago is a highly

segregated city,(50) applications of the criminal laws to particular

neighborhoods in the city are likely to have a racially disparate impact.

Justices Stevens, Souter, and Ginsburg based their opinion invalidating the

gang-loitering ordinance on the "freedom to loiter for innocent purposes."(51)

This aspect of liberty guaranteed by the due process clause does more than

protect the personal enjoyment one experiences when freely strolling the

streets. It also prevents the state from interfering in the mobility of

subordinated groups within the community and the nation. Restricting people's

freedom of movement can be a form of political subjugation. Vagrancy laws

originated in the breakup of the feudal system in England in an attempt by

feudal lords to control their serfs.(52) During the seventeenth and eighteenth

centuries, these laws served as means of stabilizing the labor force by

preventing "masterless" workers from traveling from their homes in search of

higher wages, supporting themselves on the streets, and entering unwelcoming

communities.(53)

In the United States, vagrancy-type laws served the same function in the

regime of white domination of Blacks. The colonies sought to prevent slave

rebellions by enacting laws that prohibited slaves from traveling without a

pass and permitted slave patrols to arrest slaves on mere suspicion of

sedition.(54) After Emancipation, white southerners tied freed Blacks to

plantations through Black Codes that punished vagrancy.(55) As the Court

described them, "vagrancy laws were used after the Civil War to keep former

slaves in a state of quasi slavery."(56) A more contemporary example of the

oppressive restriction of movement is the requirement of the apartheid regime

in South Africa that Blacks carry passes while traveling in white

districts.(57)

The mandate that police arrest individuals who do not promptly disperse and

"remove themselves from the area" exacerbates this constitutional violation.

The obligation to leave "the area" gives police officers additional discretion

to decide whether someone has complied with their orders by moving far enough

away.(58) It also magnifies the racist nature of the law's control over

movement in the city. The ordinance's leave-the-area requirement might be

interpreted as an order to leave the neighborhood, a site delineated in

Chicago by race and ethnicity.(59) As amici noted, "[a] law authorizing police

to order strangers back to their own neighborhood would make all-too-real the

concerns of Chicago aldermen who compared this ordinance to South Africa's

pass laws."(60)

The arrest of the named plaintiff, Jesus Morales, illustrates the law's

potential for racial bias. Morales was arrested when he stood on a street

corner with five other Latino teenagers in a predominantly white neighborhood.

The arresting officer testified that he initially approached the group

"[b]ecause we wanted to know if they lived in the neighborhood."(61) He

concluded that Morales was a gang member because Morales wore blue and black

clothes, the colors of the Gangster Disciples street gang.(62) It appears that

Morales became the subject of suspicion because of his ethnicity: being Latino

made his presence in a white neighborhood alarming; it also made it seem

likely that his clothing signified gang membership. Vague loitering laws give

license to police officers to arrest people purely on the basis of race-based

suspicions like these.

III. RACE, SOCIAL NORM THEORY, AND THE ARGUMENT FOR POLICE DISCRETION

The preceding discussion of vagueness doctrine shows that race plays a key

role in the long-standing constitutional objections to expansive police

discretion authorized by vague laws such as the gang-loitering ordinance. More

recent arguments about criminal law's impact on social norms have also begun

to focus on issues of race. Leading social norm theorists contend that

order-maintenance policing benefits communities, particularly Black inner-city

neighborhoods, because promoting norms of orderliness deters crime. I argue,

however, that the identity of "visibly lawless" people at the heart of vague

loitering laws incorporates racist notions of criminality and legitimates

police harassment of Black citizens.

A. THE BROKEN WINDOWS HYPOTHESIS AND SOCIAL NORM THEORY

The city argued that the gang-loitering ordinance protects community residents

in two ways. First, it prevents the harms created by gang loitering itself.

Hanging out on the street is part of a strategy to stake out the gang's own

territory and to intimidate residents or antagonize rival gangs who enter

it.(63) Gang loitering makes law-abiding residents fearful to venture into the

street and creates a danger that violent clashes that imperil innocent

passersby might erupt in public. Thus, the city claimed, the very presence of

gang members on the streets creates a menace independent of any additional

criminal activity they might be engaging in. Second, disrupting gang loitering

helps to prevent future offenses by gang members. Gang members who congregate

in the street are often engaged in crimes such as drug dealing or conspiring

to break the law that are difficult for police officers to intercept.

Membership in a criminal enterprise also makes it likely that gang bangers

will commit crimes in the future.

The city defended the crime prevention function of the gang-loitering

ordinance by relying on the broken windows thesis. In an Atlantic Monthly

article, "Broken Windows," criminologists James Q. Wilson and George L.

Kelling criticized law enforcement strategies focused on investigating the

most serious crimes on the grounds that they overlooked the important function

of maintaining public order. According to Wilson and Kelling, visible signs of

community disorder such as vagrancy and vandalism encourage lawless residents

to commit crimes:

Social psychologists and police officers tend to agree that if a window

in a building is broken and is left unrepaired, all the rest of the windows

will soon be broken.... [O]ne unrepaired broken window is a signal that no

one cares, and so breaking more windows costs nothing.... We suggest that

`untended' behavior also leads to the breakdown of community controls.(64)

They argued that governments can reduce crime more effectively by addressing

visible signs of disorder that influence criminal behavior. The city cited

this theory to support its claim that the gang-loitering ordinance achieved a

prophylactic objective "because when police officers can order gang members to

move along, they can prevent crime before it occurs."(65)

Legal scholars interested in the relationship between crime and social norms

have embraced the broken windows theory as part of their explanation of

deterrence and prescription for criminal law.(67) Social norm theory augments

the traditional economic conception of deterrence by recognizing that the

decisions of individuals to commit crimes are influenced by their social

context as well as by the price of crime. Criminal behavior is shaped by

individuals' perceptions of others' values, beliefs, and conduct. Perceptions

of community norms of orderliness in particular have an impact on residents'

willingness to commit crimes. As Kahan explains, "[d]isorder is ... pregnant

with meaning: Public drunkenness, prostitution, aggressive panhandling and

similar behavior signal ... that the community is unable or unwilling to

enforce basic norms."(67) Adopting the broken windows thesis, these social

norm theorists assert that community disorder frightens law abiders from using

the streets and cooperating with police while leading law breakers to conclude

that crime is not risky or morally repugnant. Thus, the social meaning of

disorder can influence the behavior of both committed law-abiders and

law-breakers in a way that is likely to increase crime.(68)

Social norm theorists also point to the role the law plays in shaping these

social influences. The state can discourage crime by producing the right kind

of social meaning through the regulation of social norms. "Norms of order are

critical to keeping social influence pointed away from, rather than toward,

criminality," writes Kahan.(69) When government authorities enforce norms of

orderliness they signal to residents that the community values basic norms and

is in control of the environment, thereby influencing citizens to refrain from

committing serious crimes. Some social norm theorists rely on the social

influence conception of deterrence to advocate law enforcement strategies that

maintain visible order, such as New York City's quality-of-life initiative and

Chicago's gang-loitering ordinance. Rejecting tough criminal penalties for

gang membership as counterproductive, Kahan argues:

A more effective approach is to attack the public signs and cues that

inform juveniles' (mis)perception that their peers value gang criminality.

That's what gang-loitering laws attempt to do. By preventing gangs from

openly displaying their authority, such laws counteract the perception that

gang members enjoy a high status in the community. As that perception

recedes, so does the perceived reputational pressure to join them.(70)

By counteracting the harmful social meaning that gangs control the community,

and thereby deterring more dangerous gang activity, gang-loitering laws reduce

crime more effectively than costly imprisonment for violent offenses.

Social norm theory also has implications for existing constitutional limits on

police power. Advocates of order-maintenance policing argue that courts should

relax restraints on police discretion to enable police to remove signs of

chronic disorder on the streets.(71) Some social norm theorists endorse this

view because of the way due process rights undermine deterrence.(72) Rights

that constrain police authority to suppress disorder move social influence in

a negative direction by inhibiting the community's power to enforce norms of

orderliness. This negative effect on social meaning, which cannot be offset by

increasing the severity of punishment, makes rights more costly than current

constitutional rules contemplate. Social norm theory, utilizing the broken

windows hypothesis, provides an influential defense for weakening the

constitutional shield against racially biased detention and arrest. Is this

proposed shift in the balance between liberty and state power justified?

B. THE FLAWED EMPIRICAL CASE FOR LOITERING LAWS

Before examining the political grounds for the constitutional retrenchment

proposed by social norm theorists, we should test the strength of their

empirical assertions. The broken windows hypothesis makes an empirical claim

of deterrence: eliminating visible signs of disorder deters serious crime.

Social norm theorists contend that falling crime rates in cities that have

implemented order-maintenance policing initiatives prove the broken windows

hypothesis. Tracey Meares defends the Chicago gang-loitering ordinance by

pointing to "the positive results correlated with its enforcement," noting

purported decreases in city crime during the years the law was in effect."

Kahan likewise cites statistics showing the plummeting New York City crime

rate to support that city's quality-of-life initiative, and states that

"[c]ity officials and at least some criminologists credit the larger reduction

in crime rates to [the] recent emphasis on 'order maintenance."(74)

In the Morales case, the city also presented crime statistics as evidence that

the loitering ordinance "had a substantial effect on the level of gang-related

violence in Chicago."(75) The city argued that a five-year report on gang

violence prepared by the Police Department revealed a pattern of substantial

decline in gang-related crime after the ordinance was passed, followed by an

increase after police stopped enforcing the law.(76)

The statistics showing fluctuations in the rate of gang violence, however,

simply so not support the city's claim. The very report the city cites shows

precisely the opposite relationship between enforcement of the ordinance and

rates of violent crime. In 1994, while the ordinance was in place,

gang-related homicides increased faster than other homicides (27% compared to

3%); and in 1997, the second post-enforcement year, gang-related homicides

decreased by 19% at a time when non-gang related homicides went up

slightly.(77) Chicago's crime record during the early 1990s, therefore, offers

no proof that the gang-loitering ordinance reduced gang violence in the city.

The city, moreover, posited a relationship between sweeping gang members from

the streets and crime reduction that is far more direct than the broken

windows theory suggests: "Perhaps it is just this simple: if fewer gang

members are loitering in public where they constitute an inviting target for

their rivals, fewer of them--and innocent people nearby--will be shot to

death."(78) This argument drastically short circuits social norm theory,

eliminating the process by which the social meaning of order reinstated by the

police influences the attitudes of community residents. Given the complexity

of social norm theory, it would be surprising if the gang-loitering ordinance

really had such an immediate impact on the attitudes and behavior of

residents.

To the extent crime did drop during this period, Chicago's experience mirrors

a decrease in the commission of serious offenses in other large American

cities, and may be related to yet unexplained national trends.(79) A recent

report evaluating Chicago's community policing program, CAPS, notes that the

downward trend began before CAPS was implemented and attributes the decline to

a variety of factors including high incarceration rates, gun seizures, and

decreases in drug use, without even mentioning the loitering ordinance as a

cause.(80) "Given the myriad factors that influence levels of violence," the

Supreme Court concluded in Morales, "it is difficult to evaluate the probative

value of this statistical evidence, or to reach any firm conclusion about the

ordinance's efficacy."(81)

The suggested factors contributing to the decrease in serious crime in New

York City are equally legion.(82) One prominent explanation is the shift in

drug use from crack cocaine to heroin during the 1990s, along with the

maturation of the crack market. Because a large portion of New York City's

homicides in the late 1980s were related to the crack trade, these changes may

have resulted in less drug-related violence.(83) Ironically, New York City

Police Commissioner Howard Safir recently attributed the city's plummeting

crime rates to "the department's move away from the community-policing

strategies of the early 1990's, which called for more neighborhood officers on

the beat."(84) Safir pointed instead to the use of computer maps to chart

crime and assigning officers to major antidrug initiatives across the city as

the causes of crime reduction. Explaining the recent decline in crime rates

across the country remains a hotly contested topic.

Recent scrutiny of the broken windows theory has more directly shaken the

empirical undergirding of order-maintenance policing. The strongest empirical

support for the broken windows thesis comes from a study conducted by Wesley

Skogan, a political scientist at Northwestern University.(85) In Disorder and

Decline, Skogan tested the disorder-causes-crime hypothesis by aggregating

data from previously published studies that interviewed residents of forty

neighborhoods in six large cities. Skogan then regressed the rate of robbery

victimization on the level of disorder. Skogan finds that there is a causal

relationship between these measures of crime and disorder, and concludes:

"These data support the proposition that disorder needs to be taken seriously

in research on neighborhood crime, and that both directly and through crime it

plays an important role in neighborhood decline."(86) Skogan relied on his

finding of a crime/disorder nexus to endorse Wilson and Kelling's hypothesis,

asserting "'Broken windows' do need to be repaired quickly."(87) Kelling, in

turn, claims that Skogan's study "established the causal links between

disorder and serious crime-empirically verifying the `Broken Windows'

hypotheses."(88)

After examining the data, law professor Bernard Harcourt concludes that

Skogan's study "does not support the claim that reducing disorder deters more

serious crime."(89) Skogan selected only one crime-robbery--as the dependent

variable even though the data contained a number of other crimes, including

purse-snatching, physical assault, burglary, and sexual assault. When Harcourt

replicated Skogan's study to include these other crimes, he discovered that

robbery was the only crime victimization variable that remained significantly

related to disorder when neighborhood poverty, stability, and race are held

constant.(90) Sexual assault and purse-snatching are not significantly related

to disorder, and the statistical relationship between physical assault and

burglary disappears when socioeconomic factors are taken into account.(91) In

short, Skogan's study fails to prove any statistically significant

relationship between disorder and any crime except for robbery.

Harcourt goes on to demonstrate, however, that even the relationship between

disorder and robbery is questionable. It turns out that a cluster of five

Newark neighborhoods exert excessive influence on the statistical findings.

Harcourt reports, "[h]olding constant the same three explanatory variables

(poverty, stability, and race), there is no significant relationship between

disorder and robbery victimization when the five Newark neighborhoods are

excluded."(92) This "Newark Effect" suggests that the neighborhoods in Newark

are for some reason skewing the disorder/crime results, and should therefore

be left out of the study. In the final step, Harcourt engages in his own

disorder-crime regression analysis, using Skogan's data, that corrects the

data and design problems he identified. Finding no statistically significant

relationship between disorder and crime, he concludes that "the data do not

support the broken windows hypothesis."(93) It appears that the broken windows

hypothesis, used by conservative commentators, criminal law theorists, and

city officials to defend a radical expansion of police authority, lacks the

empirical footing its adherents claim.

The confusion over declining crime rates and the nexus between disorder and

crime should undermine the current confidence in the effectiveness of

order-maintenance policing. Certainly there is insufficient empirical basis

for discarding the well-established constitutional objections to the Chicago

loitering ordinance. Nevertheless, there are other reasons to take seriously

the application of social norm theory to criminal law. The public does not

endorse new law enforcement strategies simply because they are effective. We

evaluate various approaches to criminal justice according to moral and

political judgments as much as their impact on crime rates.(94) Whether or not

the broken windows thesis is proven to deter crime, we should examine how law

enforcement policies reinforce or contest harmful social norms. The central

error that social norm theorists make is their misjudgment of the social

influence of order-maintenance policing, as well as their misreading of the

empirical data about crime and disorder.

C. THE RACIAL MEANING OF ORDER-MAINTENANCE POLICING

In the middle of writing this Foreword, I had a revealing conversation with my

sixteen-year-old son about police and loitering. I told my son that I was

discussing the constitutionality of a city ordinance that allowed the police

to disperse people talking on the sidewalk if any one of them looked as if he

belonged to a gang. My son responded apathetically, "What's new about that?

The police do it all the time, anyway. They don't like Black kids standing

around stores where white people shop, so they tell us to move." He then

casually recounted a couple instances when he and his friends were ordered by

officers to move along when they gathered after school to shoot the breeze on

the streets of our integrated community in New Jersey. He seemed resigned to

this treatment as a fact of life, just another indignity of growing up Black

in America. He was used to being viewed with suspicion: being hassled by

police was similar to the way store owners followed him with hawk eyes as he

walked through the aisles of neighborhood stores or women clutched their

purses as he approached them on the street.(95)

Even my relatively privileged son had become acculturated to one of the

salient social norms of contemporary America: Black children, as well as

adults, are presumed to be lawless and that status is enforced by the

police.(96) He has learned that as a Black person he cannot expect to be

treated with the same dignity and respect accorded his white classmates. Of

course, Black teens in inner-city communities are subjected to more routine

and brutal forms of police harassment. Along with commanding them to move

along, police officers often make derogatory comments, push them around, or

throw them against the patrol car.(97) As my son quickly noted, the Chicago

ordinance simply codifies a police practice that is already prevalent in Black

communities across America.(98) But the city council's imprimatur and the

power of the police to enforce their orders with arrest, conviction, and

incarceration powerfully validate the harmful message of presumed Black

criminality. If the United States Supreme Court had upheld the gang-loitering

ordinance, what used to be criticized as police harassment might have been

applauded as an innovative policing strategy.

1. The Law-Abiding/Lawless Dichotomy

To understand the social influence of order-maintenance policing, we must

uncover the implicit assumptions it makes about people's criminal propensity.

The theory underpinning the gang-loitering ordinance relies on a dichotomy

between two kinds of inner-city residents--those who are lawless and those who

are law-abiding. By clearing the streets of gang members and people who

congregate with them, the theory goes, the police deter lawless residents from

committing future crimes and make neighborhoods safer for law-abiding

residents. This distinction eliminates the need for a criminal conviction

before the state may punish or incapacitate lawless people. As the city argued

before the Supreme Court, "surely it is no answer to law-abiding residents,

who no longer feel safe when they go outdoors, to wait for someone to

eventually be incarcerated as a result of a conviction on a serious felony

charge."(99) The state may deprive lawless citizens of their liberties

immediately to protect the freedom of law-abiding citizens.

This categorization of citizens is an inherent feature of the social influence

conception of deterrence. Social norm theorists borrow from the broken windows

theory both its explanation of how disorder influences criminal behavior and

its categorical distinction between orderly and disorderly people.(100)

According to Kahan, signs of disorder encourage "individuals who are otherwise

inclined to engage in crime" to do so, while pressuring "committed

law-abiders" to leave the neighborhood.(101) As Bernard Harcourt helpfully

elucidates, this explanation for crime assumes two types of people who respond

to disorder in opposite ways:

Running through the social influence explanation and the broken windows

theory is a recurrent and pervasive dichotomy between, what we could call

in vulgar terms, honest people and the disorderly; between "committed

law-abiders" and "individuals who are otherwise inclined to engage in

crime;" between "families who care for their homes, mind each other's

children, and confidently frown on unwanted intruders" and "disreputable or

obstreperous or unpredictable people: panhandlers, drunks, addicts, rowdy

teenagers, prostitutes, loiterers, the mentally disturbed."(102)

According to social influence theory, neighborhood disorder frightens honest,

law-abiding citizens into remaining at home or moving out of the community

altogether. The same neighborhood disorder, on the other hand, attracts

lawless people to move in and encourages them to commit serious crimes. The

public presence of gangs, the city of Chicago argued, caused orderly residents

to refrain from venturing on to the streets while fomenting shootouts and drug

dealing by disorderly residents.

The Chicago ordinance takes this dichotomy between orderly and disorderly

people, law-abiders and law-breakers one dangerous step further. The ordinance

not only divides the world into two distinct categories of people based on

their propensity to commit crimes; it also assumes that the police can

distinguish between these types of people independent of any criminal conduct.

The city's brief in the Supreme Court refers over and over again to the

citizens the ordinance subjects to arrest as "visibly lawless" people. The

lawlessness of these people is visible in two senses. First, their criminality

is evidenced by visible characteristics other than their criminal behavior.

They look like criminals even when they are doing no more than standing still.

Second, lawless people themselves are visible signs of disorder. Their very

presence on the streets is considered harmful and must be eradicated. In

short, the police can identify "visibly lawless" residents on sight and are

justified in excluding them from public to deter the commission of serious

crimes.

2. Identifying "Visibly Lawless" People

The efficacy of the gang-loitering ordinance, then, is premised on the ability

of Chicago police officers to identify "visibly lawless" people and to

distinguish them from law-abiding citizens. How do police make these

distinctions? How does one tell a disorderly from an orderly individual? The

categories employed by social norm theorists when they defend aggressive

policing are not natural groupings with fixed and uncontested

delineation.(103) Rather, they derive from two main sources that social norm

theorists leave surprisingly unexamined--the policing strategy itself and

pernicious social norms already in place when the policing strategy is

implemented. Evaluating the sociological defense of the gang-loitering law

must include a careful examination of the category of "visibly lawless" people

who the law is designed to remove from the streets. The following examination

of the law's dichotomy shows that it incorporates racist social norms that

help to perpetuate stereotypes of Black criminality. This negative social

influence refutes the claim that the order privileged by order-maintenance

policing upholds only positive community norms.

Harcourt persuasively demonstrates the relationship between the New York

quality-of-life initiative and the definition of the disorderly people it

regulates. Relying on the work of Michel Foucault, Harcourt argues that the

categories underlying the broken windows theory of crime prevention do not

exist independently of the law enforcement policies supported by the

theory.(104) "To the contrary," Harcourt asserts, "the category of the

disorderly is itself a reality produced by the method of policing."(105) It is

the technique of order-maintenance policing--aggressively arresting people for

minor infractions such as panhandling and littering--that creates the profile

of the disorderly person who must be watched, controlled, and relocated.

Social norm theorists, then, are wrong to use an assumed distinction between

orderly and disorderly people to justify order-maintenance policing because no

such categorical distinction pre-dates the policing strategy itself. Instead

of merely influencing these categories of individuals, order-maintenance

policing actually helps shape or create these categories. Instead of simply

influencing community norms, it imposes norms on the community.(106)

Harcourt's explication of the category-creating function of order-maintenance

policing reveals a devastating fallacy in the social influence theory of

deterrence. Social norm theorists are amazingly uncritical of the categories

they employ, failing to acknowledge that these identities do not have a

natural and fixed reality. These categories, however, are not created by

policing strategies alone. While aggressive policing techniques impose norms

on the community, they also reinforce pre-existing notions of criminality,

disorder, and lawlessness. This is particularly true of loitering laws like

the Chicago ordinance that rely on characteristics other than criminal conduct

to identify offenders. Standing on a street corner is a sign of disorder only

when it is engaged in by "visibly lawless" people. When "law-abiding"

neighbors gather to chat in front of their homes or businesses it is seen as a

sign of a vibrant community. Defining visibly lawless people adopts America's

longstanding association between blackness and criminality.

One of the main tests in American culture for distinguishing law-abiding from

lawless people is their race. Many, if not most, Americans believe that Black

people are "prone to violence" and make race-based assessments of the danger

posed by strangers they encounter.(107) The myth of Black criminality is part

of a belief system deeply embedded in American culture that is premised on the

superiority of whites and inferiority of Blacks.(108) Stereotypes that

originated in slavery are perpetuated today by the media(109) and reinforced

by the huge numbers of Blacks under criminal justice supervision.(110) As Jody

Armour puts it, "it is unrealistic to dispute the depressing conclusion that,

for many Americans, crime has a black face."(111)

One of the most telling reflections of the association of Blacks with crime is

the biased reporting of crime by white victims and eyewitnesses. Psychological

studies show a substantially greater rate of error in cross-racial

identifications when the witness is white and the suspect is Black.(112) White

witnesses disproportionately misidentify Blacks because they expect to see

Black criminals. According to Sheri Lynn Johnson, "[t]his expectation is so

strong that whites may observe an interracial scene in which a white person is

the aggressor, yet remember the black person as the aggressor."(113) The

unconscious association between Blacks and crime is so powerful that it

supersedes reality: it predisposes whites to literally see Black people as

criminals. Their skin color marks Blacks as visibly lawless.

Race helped to make the Blacks and Latinos arrested under the Chicago

ordinance appear lawless. With no criminal conduct to go by, police officers

probably used race as a critical factor in judging whether an individual might

be a gang member. A group of Black or Latino teenagers simply standing on an

inner-city street corner is far more likely to be considered disorderly than a

group of white teenagers similarly congregating in their community. A

"law-abiding" Black Chicagoan had a far greater chance of being mistakenly

ordered to move than his white counterparts. My point goes beyond the

observation that the loitering law happened to result in the arrest of a

disproportionate number of minorities. By necessarily assuming a distinction

between law-abiding and lawless people that can be detected apart from

criminal conduct, the gang-loitering ordinance incorporates and reinforces

pernicious stereotypes about Black criminality.

Police officers are particularly notorious for using race as a proxy for

criminal propensity. Police routinely consider an individual's race in their

decision to stop and detain him.(114) Police become suspicious of Blacks

present both in a predominantly white neighborhood and in a Black neighborhood

with a high crime rate.(115) As Tracey Meares acknowledges, "[i]n the minds of

some law-enforcement agents, Black skin is considered a factor to use to

decide whether an individual should be considered a criminal suspect."(116)

Courts have approved officers' use of race in their determination that there

is reasonable cause to suspect an individual is involved in crime.(117)

Police officers defend racial profiling as a useful crime detection tool that

is based on the disproportionate commission of certain crimes by members of

minority groups.(118) Gary McLhinney, the president of the Baltimore Fraternal

Order of Police, explains: "Of course we do racial profiling at the train

station .... If 20 people get off a train and 19 are white guys in suits and

one is a black female, guess who gets followed? If racial profiling is

intuition and experience, I guess we all racial-profile."(119)

This rationale fails to acknowledge, however, that most Blacks do not commit

crimes. Moreover, police apply racial profiling only to members of minority

groups, and not to whites for the crimes they commit in disproportionate

numbers. In McLhinney's example, the disproportionate conviction of Blacks for

drug offenses is not a basis for suspecting that the Black woman on the train

is a drug dealer, any more than the disproportionate conviction of whites for

securities fraud is a basis for suspecting that the nineteen white businessmen

are crooks. While the white passengers enjoy the presumption of innocence, the

Black passenger is presumed to be lawless on account of her race.

The racial basis for suspicion is translated into the disproportionate arrest

of Black men and women for many crimes.(120) Two of the most glaring examples

are pretextual traffic stops and arrests for drug offenses.(121) There is

overwhelming evidence that police officers stop motorists on the basis of race

for minor traffic violations.(122) A 1992 Orlando Sentinel study of police

videotapes, for example, discovered that although Blacks and Latinos

represented only 5% of drivers on the Florida interstate highway, they made up

nearly 70% of drivers stopped by police and more than 80% of those drivers

whose cars were searched.(123) These race-based stops may amount to an

inconvenience or a citation, or they may be an excuse to search for evidence

of a more serious crime.(124) The experience of being stopped by police on

account of race is so common that it is widely known in the Black community as

"DWB"--driving while Black.(125) District Court Judge Nancy Gertner recently

acknowledged this pattern by reducing a Black defendant's sentence on the

grounds that his lengthy prior record was probably skewed by discriminatory

traffic stops.(126) Despite the evidence of racial bias, the Supreme Court

unanimously upheld the constitutionality of pretextual traffic stops.(127)

Police officers also enforce the drug laws in a racially biased manner.

Although whites use drugs in far greater numbers than Blacks, Blacks are far

more likely to be arrested for drug offenses. Blacks represent only 13% of the

nation's drug users, but make up 74% of those imprisoned for drug

possession.(128) This gross racial disparity results in part from the

conscious decision of police departments to target their drug enforcement

efforts on urban and inner-city neighborhoods where people of color live.(129)

As journalist Jeffrey Goldberg notes, "[c]ommon sense, then, dictates that if

the police conducted pretext stops on the campus of U.C.L.A. with the same

frequency as they do in South Central, a lot of whites would be arrested for

drug possession."(130) This blatant and persistent pattern of race-based

arrests--the expression of police officers' association of Blacks with

crime--is replicated in the enforcement of order.

3. The Ordinance's Social Influence

While exaggerating or misrepresenting the impact of disorder on crime rates,

social norm theorists ignore the harm of discriminatory government campaigns

to eliminate disorder. We can apply social norm theorizing to explain the

negative social influence of race-based police harassment. Just as visible

disorder "tells" residents that the community is not enforcing norms of

orderliness, race-based policing tells the community that Blacks are presumed

to be lawless and are entitled to fewer liberties. Order has social meaning,

but so does order enforced in this way.

Social norm theory is very useful in explaining how seemingly trivial behavior

can have huge social consequences. Because of its social meaning, conduct with

little immediate practical impact can have a significant effect on people's

attitudes about social norms. Social norms, in turn, have a powerful influence

on individuals' behavior and community welfare.

The following figure depicts the argument asserting the positive social

influence of maintaining order.(131)

FIGURE 1: THE POSITIVE SOCIAL INFLUENCE OF ORDER-MAINTENANCE POLICING

Police Social Social Conduct [right arrow]

meaning [right arrow] Norm [right arrow] Police remove

Community Orderliness visible signs of cares &

criminals disorder are no longer in

control Police Impact on Conduct [right arrow] Community

Police remove Law-abiders feel visible signs of safe &

criminals disorder stop committing

crimes

FIGURE 2: THE NEGATIVE SOCIAL INFLUENCE OF ORDER-MAINTENANCE POLICING

Police Social Social Conduct [right arrow]

Meaning [right Norm [right arrow]

arrow] Racially- Blacks are Presumed biased

arrests suspect, require Black of loiterers

police criminality supervision, &

are entitled to fewer liberties Police

Impact on Conduct [right arrow] Community Racially- Blacks

are biased arrests perceived as of loiterers criminals

and experience more

discrimination

In the same way that minor infractions of order, such as loitering, vandalism,

or panhandling, can allegedly lead to serious crime, minor infringements of

citizens' liberties can cause serious damage to the relationship between

government and the governed and among citizens. This explains why seemingly

trivial police harassment, such as ordering someone to move along, can be a

significant infringement of liberty. Race-based harassment helps to reinforce

the second-class citizenship of Blacks and other people of color.

In addition to reinforcing racist norms of presumed criminality,

order-maintenance policing intensifies racial inequalities in the protection

of civil liberties. Distinguishing between citizens on the basis of presumed

criminality permits the state to minimize the rights of presumably lawless

citizens while expanding the authority of presumably law-abiding ones. Once

people are categorized as lawless it becomes easy to strip them of their

liberties. As the city argued before the Supreme Court, "In organized society,

the `amenities' of some must sometimes be regulated for the benefit of the

community as a whole."(132) The constitutional freedoms of lawless people

become mere "amenities" that may be sacrificed to protect law-abiding people.

The willingness to abrogate the rights of disorderly residents was especially

evident in the city's nonchalant dismissal of their freedom to travel: "If

gang members and their associates only obey orders to move along when

issued--exercising the very right to travel the Illinois Supreme Court

supposed was infringed by the ordinance--they will not be subject to

arrest."(133) This ludicrous convolution of the concept of rights applies only

to citizens deemed visibly lawless. Most Americans no doubt would be offended

by police orders to move along; they certainly would find it hard to see their

compliance with such orders as an exercise of liberty. We expect to find this

kind of Orwellian double think, confusing obedience to authority with liberty,

in totalitarian regimes. It is only the categorical separation of law-abiding

and lawless citizens that permits the simultaneous commitment to liberal and

totalitarian concepts of freedom.(134) Law-abiding citizens can continue to

frequent public forums free from police interference, while lawless people are

justifiably subject to increasingly aggressive police surveillance.

Because the distinction between law-abiding and lawless people is racialized,

the depreciation of liberty it legitimates is equally racialized. As I

discussed earlier, stereotypes of Black criminality result in an ugly pattern

of racist police abuse and arrest. Social norm theory helps to explain why

this pattern strikes most Americans as benign. According to social norm

theorists, when social understandings are so uncontested that they become

invisible, the social meanings that arise from them appear natural. "The more

they appear natural, or necessary, or uncontested, or invisible," Lawrence

Lessig notes, "the more powerful or unavoidable or natural social meanings

drawn from them appear to be."(135) Myths of Black criminality are so embedded

in the white psyche that it seems perfectly natural to many Americans that

Blacks are disproportionately stopped for traffic infractions, arrested for

drug offenses, swept off the streets for loitering, and sent to prison.

It is helpful, then, to use social influence theory to elucidate the

pernicious impact of order-maintenance policing. Borrowing the relationship

between social meaning, social influence, and social norms, we can see how

social norm theory is just as effective at critiquing order-maintenance

policing as it is at supporting it. My hypothesis, however, diverges from the

broken windows theory by recognizing that the categories of order and disorder

have a pre-existing meaning that associates Blacks with disorder and

lawlessness. The following figure depicts the social influence of

order-maintenance policing that incorporates these racialized categories.

Recent events in New York City suggest that its order-maintenance policy had

precisely this racist social meaning, which reinforced pernicious norms within

the police department. While officials boasted of falling crime rates,

civilian complaints of police abuse rose almost 40% since 1993 and the amount

the city paid to settle these claims doubled.(136) The Street Crime Unit

stopped and frisked 45,000 people in 1997 and 1998, but made only 9,500

arrests.(137) This means that police detained more than 35,000 people--the

vast majority Black and Latino--who apparently had committed no crime.(138)

Shocking cases of police brutality against innocent Black citizens heightened

resentment toward the police and concerns about the city's policing policy.

The two most egregious were the beating and torture of a Haitian immigrant,

Abner Louima, in 1997 by two officers in a station house and the fatal

shooting of a Guinean immigrant, Amadou Diallo, in 1999 by four plainclothes

officers from the Street Grime Unit, who fired forty-one times at the unarmed

man with no criminal record.(139)

Numerous observers hold New York City's order-maintenance policy responsible

for the escalation of police abuse.(140) The mandate to aggressively control

disorderly behavior created an attitude of impunity and disrespect for Black

lives among police officers that ultimately led to these violations. The level

of daily harassment, capped by the barbarity of the Louima and Diallo cases,

dramatically eroded support for New York City's quality-of-life initiative,

especially among African Americans, and sparked demands for tough oversight of

police conduct.(141)

In the same way that proponents of the broken windows hypothesis measure the

benefits of order-maintenance policing in terms of falling crime rates, we can

measure the harms of order-maintenance policing in terms of the concrete

impact of the racial stereotypes it perpetuates.(142) I suspect, however, that

the damage inflicted by the social norm of presumed Black criminality is

immeasurable.

While high rates of incarceration for felonies have devastating repercussions

on Black communities,(143) widespread convictions for petty offenses also have

a degrading impact. Criminal conviction even for a misdemeanor places an

individual more definitively in the category of lawbreakers. Being arrested

and sent to jail is no picnic.(144) Many of the thousands of citizens arrested

under the Chicago ordinance were sentenced to a day or more in Cook County

Jail. Some were sent to jail for several weeks.(145) To diminish the

seriousness of criminal arrest, prosecution, and incarceration for any amount

of time reinforces the view that these experiences should be considered

routine for Blacks. The arrests of more than 42,000 people in Chicago for

loitering "lower[s] at least the threshold of tolerance to penality" and

"tends to efface what may be exorbitant in the exercise of punishment."(146)

No doubt the formerly law-abiding citizens among those harassed and arrested

are less likely ever "to engage positively" with the police. Although some

social norm theorists advocate order-maintenance policing as a gentler

alternative to draconian punishments and high incarceration rates of young

Black men,(147) both policies have the effect of reinforcing stereotypes of

Black criminality.

Tracey Meares and Dan Kahan are willing to tolerate arrests for loitering

because they assume that "[t]he kids whom the police cannot order off the

streets today ... are the same ones they will be taking off to jail

tomorrow."(148) We should resist this assumption. Not everyone the police

suspect is a gang member or everyone who associates with a suspected gang

member is a criminal Meares and Kahan also assume that "[w]hen courts strike

down crime-preventive measures such as the ordinance, legislatures inevitably

attempt to compensate, with even more severe prison terms."(149) There is

evidence, however, that order-maintenance policing initiatives foster

increased police brutality without any corresponding leniency in

sentencing.(150) While crime rates have declined across the country,

incarceration rates have continued to soar.(151) Far from promoting community

cooperation with the police, moreover, New York City's aggressive patrol

tactics made many law-abiding citizens fearful of the police.(152)

Meares elaborates why tough sentencing for drug offenses is ultimately

counterproductive:

Unfortunately, by promoting stigmatization of all African Americans and

being insensitive to the dynamics of linked fate, and given the reality of

the difficulty of drawing lines between law abiders and law breakers in

many impoverished communities, it is likely that the racial asymmetry in

drug incarcerations that is the inevitable consequence of the current drug

law enforcement strategy undermines rather than enhances the deterrent

potential of long sentences.

Meares recognizes that all Blacks are stigmatized as law breakers by a law

enforcement strategy that produces prisons in which half the inmates are

Black.(154) The disproportionate incarceration of Blacks reinforces the

stereotypical association between Blacks and criminality. But the

gang-loitering ordinance has precisely the same stigmatizing effect. Although

its penalties are far less severe than those for drug dealing, the ordinance

permits police to remove and arrest perfectly law-abiding citizens because

their race makes them appear lawless. Thus, the "difficulty of drawing lines

between law abiders and law breakers" in Black communities becomes especially

pernicious when police are armed with a vague license to hassle and arrest. I

submit that the gang-loitering ordinance stigmatizes Blacks more directly than

tough drug laws because it practically invites the police to intervene based

on stereotypes of Black criminality and disorderliness rather than any

criminal conduct. The routine and public display of this racist exercise of

police power compounds its negative impact.

Order-maintenance policing is connected to lengthy imprisonment in a more

practical way, as well. Giving the police broad authority to arrest based on

mere suspicion increases the likelihood that they will find evidence of more

serious crimes. When this authority is exercised in a racially biased manner,

it increases the racial disparity in convictions for other offenses. Racial

profiling becomes a self-fulfilling prophecy: targeting Blacks for police

surveillance results in higher rates of arrests, reinforcing the presumption

of Black criminality. If police stopped and frisked whites as frequently as

they do Blacks, white arrest rates would increase. Arrests for petty

infractions such as loitering, moreover, create a criminal record, which can

enhance the penalty for more serious crimes. Order-maintenance policing, then,

is not a new regime that spares young Black men from imprisonment. It is part

and parcel of the old regime that marks young Black men as criminals destined

for prison.

In sum, social norm scholarship supporting order-maintenance policing

dramatically underestimates the cost of giving the state leeway to restrain

"visibly lawless" people. It overlooks the dangers inherent in identifying a

class of citizens as "lawless" apart from their criminal conduct and it

discounts the harm of race-based enforcement. While focusing on the negative

social influence of community disorder, the broken windows approach to crime

prevention fails to see the negative social influence of police strategies

that rely on myths of Black criminality.