ENDNOTES

(1) CHICAGO, ILL., MUNICIPAL CODE [sections] 8-4-015 (1992).

(2) American Civil Liberties Union of Illinois, Background on Chicago's

Anti-Gang Loitering Ordinance (Oct. 17, 1997). Sixty of the sixty-six

defendants in Morales, whose cases were randomly consolidated by the court,

were Black or Latino. Telephone interview with Harvey Grossman, Director, ACLU

of Illinois (April 14, 1999). Neighborhood organizations that supported the

ordinance conceded that it primarily affected inner-city minority communities.

See Brief Amicus Curiae of the Chicago Neighborhood Organizations in Support

of Petitioner at 19, City of Chicago v. Morales, 119 S. Ct. 1849 (1999)(No

97-1121).

(3) 687 N.E.2d 53 (Ill. 1997), aff'd, 119 S. Ct. 1849 (1999).

(4) Chicago v. Morales, 119 S. Ct. 1849 (1999). I capitalize the `B' in

"Black" because I believe that most Black Americans consider themselves to be

an ethnic group, whereas I believe that most white Americans do not.

(5) Judy Peres, City's Loitering Law Gets Last Chance at Top Court, CHI.

TRIB., Dec. 8, 1998, [sections] 1, at 1.

(6) For a description and critique of New York City's quality-of-life

initiative, see Bernard E. Harcourt, Reflecting on the Subject: A Critique of

the Social Influence Conception of Deterrence, the Broken Windows Theory, and

Order-Maintenance Policing New York Style, 97 MICH. L. REV. 291 (1998).

(7) See, e.g., Dan M. Kahan & Tracey L. Meares, Foreword: The Coming Crisis of

Criminal Procedure, 86 GEO. LJ. 1153, 1160431 (1998) [hereinafter Kahan &

Meares, The Coming Crisis] (referring loosely to discretionary policing

strategies including anti-loitering laws, warrantless building searches, and

New York City's quality-of-life initiative as the "new community policing").

(8) See WESLEY G. SKOGAN & SUSAN M. HARTNETT, COMMUNITY POLICING, CHICAGO

STYLE 5 (1997). Community policing "implies a commitment to helping

neighborhoods solve crime problems on their own, through community

organizations and crime-prevention programs." Id.

(9) See. Harcourt, supra note 6, at 388-89 & n.388 (citing Jonathan Eig, Eyes

on the Street: Community Policing in Chicago, 19 AM. PROSPECT 60, 63

(Nov.-Dec. 1996)). The Chicago Alliance for Neighborhood Safety vehemently

opposed the gang-loitering ordinance because it hindered community policing by

breeding suspicion and division among inner-city residents. See CHICAGO

ALLIANCE FOR NEIGHBORHOOD SAFETY, CHICAGO ALLIANCE FOR NEIGHBORHOOD SAFETY IS

FOR THE CONSTITUTION, AGAINST THE ANTI-GANG LOITERING LAW (undated pamphlet,

on file with author).

(10) See, e.g., Kolender v. Lawson, 461 U.S. 352 (1983); Papachristou v. City

of Jacksonville, 405 U.S. 156 (1972); Coates v. City of Cincinnati, 402 U.S.

611 (1971). See also John C. Jeffries, Legality, Vagueness, and the

Construction of Penal Statutes, 71 VA. L. REV. 189, 215-16 (1989) (noting the

susceptibility of loitering laws to constitutional challenge on vagueness

grounds).

(11) See, e.g., THE MIRANDA DEBATE: LAW, JUSTICE, AND POLICING (Richard A. Leo

& George C. Thomas III, eds., 1998)(including proposals to abolish the Miranda

rule); HAROLD J. ROTHWAX, GUILTY: THE COLLAPSE OF CRIMINAL JUSTICE

(1995)(advocating the reform of the criminal justice system, including

constraints on the exclusionary rule and the right to counsel); It. RICHARD

UVILLER, VIRTUAL JUSTICE: THE FLAWED PROSECUTION OF CRIME IN AMERICA (1996)

(arguing that the Supreme Court's interpretation of the Fourth, Fifth, and

Sixth Amendments excessively hamper law enforcement); William Barr, A

Practical Solution to Crime in Our Communities, 1 MICH. L. & POL'Y REV. 393,

394 (1996)(advocating pretrial detention power and vagrancy and anti-loitering

laws as important legal tools that will enable "the community to take back the

streets"); Christo Lassiter, The Stop and Frisk of Criminal Street Gang

Members, 14 NAT'L BLACK L.J. 1 (1995)(advocating stops and frisks of suspected

gang members as a means of addressing "Black-on-Black" crime); James Q.

Wilson, What to Do about Crime, 98 COMMENTARY 25, 28 (Sept. 1994) (advocating

increased police use of stops and frisks).

(12) See, e.g., Kahan & Meares, The Coming Ct/s/s, supra note 7.

(13) See James Q. Wilson & George L. Kelling, Broken Windows, THE ATLANTIC

MONTHLY, Mar. 1982, at 29.

(14) See Harcourt, supra note 6, at 292-93. Harcourt's article is an important

departure from the "euphoria of support" for the broken windows approach to

crime prevention. Recently, that euphoria began to dissipate as commentators

linked New York City's aggressive patrol tactics to cases of police brutality.

See infra note 140 and accompanying text.

(15) See Brief Amicus Curiae of the Chicago Neighborhood Organizations In

Support of Petitioner at 5, City of Chicago v. Morales, 119 S. Ct. 1849 (1999)

(No. 97-1121).

(16) City of Chicago v. Morales, 119 S. Ct. 1849, 1856 (1999).

(17) See supra note 2.

(18) Kolender v. Lawson, 461 U.S. 352, 357-58 (1983).

(19) CHICAGO, ILL., MUNICIPAL CODE, [sections] 8-4-015 (1992).

(20) Id.

(21) Morales, 687 N.E.2d at 61.

(22) Morales, 119 S. Ct. at 1861.

(23) Id.

(24) See Albert W. Alschuler & Stephen J. Schulhofer, Antiquated Procedures or

Bedrock Rights?: A Response to Professors Meares and Kahan, 1998 U. CHI. LEGAL

F. 215, 229-30.

(25) Justice Stephen Breyer explained the virtually standardless discretion

the law's terms accorded police officers: "Since one always has some apparent

purpose, the so-called limitation invites, in fact requires, the policeman to

interpret the words `no apparent purpose' as meaning `no apparent purpose

except for.... `And it is in the ordinance's delegation to the policeman of

open-ended discretion to fill in that blank that the problem lies." Morales,

119 S. Ct. at 1866 (Breyer, J., concurring).

(26) Kolender v. Lawson, 461 U.S. 352, 358 (1983)(quoting Smith v. Goguen, 415

U.S. 566, 574 (1974)).

(27) Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (1972).

(28) Chicago v. Morales, 687 N.E.2d 53, 64 (Ill. 1997).

(29) Morales, 119 S. Ct. at 1855. Some of these arrests occurred during

massive street sweeps in Chicago's inner-city neighborhoods. In 1994, for

example, the Chicago police Department instituted Operation EDGE as part of

its campaign to "enforc[e] drug laws and the anti-gang-loitering ordinance."

Rob Olmstead, Cops Taking EDGE in Crime Battles, CHI. SUN-TIMES, July 5, 1994,

at 14. Operation EDGE involved street sweeps by as many as sixty uniformed

officers who swooped down on "hot spots" over a several-hour period to make

dozens of arrests. One sweep netted one hundred arrests, sixty-nine of which

were for gang loitering. Sweep Nets 100 Arrests, CHI. SUNTIMES, Feb. 6, 1995,

at 4. George Kelling, one of the authors of Broken Windows, explicitly

criticizes the Chicago Police Department's practice of "streetsweeping" as a

misunderstanding of the type of order-maintenance he and Wilson advocated.

GEORGE L. KELLING & CATHERINE M. COLES, FIXING BROKEN WINDOWS: RESTORING ORDER

AND REDUCING CRIME IN OUR COMMUNITIES 23 (1996).

(30) Morales, 687 N.E.2d at 65.

(31) For a discussion of the state's increasing use of prophylactic measures

to fight crime, see Carol S. Steiker, Foreword: The Limits of the Preventive

State, 88 J. CRIM. L & CRIMINOLOGY 771 (1998).

(32) See, e.g., Papachristou, 405 U.S. at 156.

(33) Expansive prosecutorial discretion is also "a major cause of racial

inequality in the criminal justice system." Angela J. Davis, Prosecution and

Race: The Power and Privilege of Discretion, 67 FORDHAM L. REV. 13, 16-17

(1998) ("[B]ecause prosecutors play such a dominant and commanding role in the

criminal justice system through the exercise of broad, unchecked discretion,

their role in the complexities of racial inequality in the criminal process is

inextricable and profound.").

(34) See generally Papachristou. But see Alschuler & Shulhofer, supra note 24,

at 227 (noting that Papachristou "did not invent the `void for vagueness'

doctrine, and the purpose of this doctrine was not to combat institutionalized

racism or black political disempowerment."). Benjamin Franklin expressed the

principle underlying the condemnation of vague loitering laws in universal

terms: "They that can give up essential liberty to obtain a little temporary

safety deserve neither liberty nor safety." People ex. rel. Gallo v. Acuna,

929 P.2d 596, 623 (Cal. 1997)(Mosk, J., dissenting)(quoting Benjamin

Franklin), cert. denied, 117 S. Ct. 2513 (1997). By focusing on the racial

impact of vague loitering laws, I do not mean to discount the universal

constitutional principles embodied in the courts' condemnation of these laws.

These principles predate judicial concern with institutionalized racism and

would provide important protections even in a racially homogeneous society. In

a society characterized by racial inequality, however, the pernicious features

of vague laws are likely to be imposed upon disempowered racial groups, and

may not be experienced by privileged groups at all. This racial

discrimination, then, is an integral part of the law's due process violation

and a central reason for limiting police discretion.

(35) Gary Stewart, Note, Black Codes and Broken Windows: The Legacy of Racial

Hegemony in Anti-Gang Civil Injunctions, 107 YALE L.J. 2249, 2261-62 (1998).

(36) Papachristou, 405 U.S. at 170 (citation omitted).

(37) Id. at 171.

(38) See William O. Douglas, Vagrancy and Arrest on Suspicion, 70 YALE L.J. 1

(1960).

(39) Id. at 13.

(40) See Kahan & Meares, The Coming Crisis, supra note 6, at 1155-60

(asserting a political process theory rationale for Fourth Amendment

protections); William J. Stuntz, Implicit Bargains, Government Power, and the

Fourth Amendment, 44 STAN. L. REV. 553, 560 (1992) ("[M]ost people probably

would approve of greater police authority to keep an eye on `undesirables'

(and to keep them of out of `nice' neighborhoods). That is why old-style

loitering and vagrancy laws were politically tolerable, notwithstanding their

stunning breadth"). Justice Antonin Scalia is completely oblivious to this

danger when he argues in dissent, "[t]he minor limitation upon the free state

of nature that this prophylactic arrangement imposed on all Chicagoans seemed

to them (and it seems to me) a small price to pay for liberation of their

streets." Morales, 119 S. Ct. at 1867 (Scalia, J., dissenting)(emphasis

added). The law's infringement on liberty may have seemed to a majority of

Chicagoans a small price to pay precisely because it was imposed on a minority

community and not on them.

(41) Harcourt, supra note 6, at 299.

(42) City of Akron v. Rowland, 618 N.E.2d 138 (Ohio 1993).

(43) Id. at 147-48 (quoting the Akron, Ohio ordinance at issue in the case).

The arrest statistics revealed that the ordinance was enforced in areas that

had a disproportionately high percentage of African-American residents and

that those arrested were disproportionately African-American compared to the

general population of the areas in which arrests occurred. Id. At 147. "This

means that even in areas where the population is almost evenly racially mixed,

the overwhelming number of arrests are of African-Americans." Id. at 148.

(44) See notes 107-130 infra and accompanying text.

(45) Tracey Maclin, Race and the Fourth Amendment, 51 VAND. L. REV. 333, 373 &

n.176 (1998) (citing sources that show how unrestrained police discretion

leads to racist police behavior; "Discretionary police authority may generate

discriminatory searches and seizures."); Davis, supra note 33, at 27.

(46) Davis, supra note 33, at 27.

(47) Sheryl Stolberg, 150,000 Are in Gangs, Report by D.A. Claims, L.A. TIMES,

May 22, 1992, at A1; Dirk Johnson, 2 of 3 Young Black Men in Denver Listed by

Police as Suspected Gangsters, N.Y. TIMES, Dec. 11, 1993, at 8. The Chicago

ordinance also directed the police department to maintain "Gang Information

Files" containing the names of juveniles and adults the department has

probable cause to believe are members of criminal street gangs. CHICAGO, ILL.

POLICE DEP'T GENERAL ORDER No. 92-4, [sections] VI (A)(5) (Aug. 8, 1992). Ray

Risley, Deputy Chief of Detectives with the Chicago Police Department,

identifies 60% of Chicago's street gangs as African-American, 35% as Hispanic,

4% as white, and 1% as Asian. Ray Risley, A police officer's perspective on

gangs, drugs, and guns on the streets of Chicago, 18 THE COMPLIER 4, 4 (Fall

1998).

(48) Brief of Chicago Alliance for Neighborhood Safety et al. as Amicus Curiae

in Support of Respondents at 20 n.33, City of Chicago v. Morales 119 S. Ct.

1849 (1999) (No, 97-1121); Matthew Mickle Wedegar, Note, Enjoining the

Constitution: The Use of Public Nuisance Abatement Injunctions Against Urban

Street Gangs, 51 SWAN. L. REV. 409, 423 (1999) (noting that criteria used in

California to identify gang members are highly subjective and imprecise;

"virtually every young African-American or Latino male living in neighborhoods

where gangs are active satisfies one or more of these criteria.").

(49) CHICAGO, IL. POLICE DEP'T GENERAL ORDER No. 92-4, [sections] VI (A) (1)

(Aug. 8, 1992). The Illinois Criminal Justice Authority, which helps the

Chicago Police Department identify gang "hot spots," reported that between

1987 and 1994, most gang-related offenses were committed by African-Americans

and Latinos. See Daniel Dighton, The Violence of Street Gangs, 16 THE COMPILER

4, 6 (Fall 1996).

(50) DOUGLAS S. MASSEY & NANCY A. DENTON, AMERICAN APARTHEID 76 tbl. 3.4

(1993).

(51) Morales, 119 S. Ct. at 1857.

(52) See Jeffrey S. Adler, A Historical Analysis of the Law of Vagrancy, 27

CRIMINOLOGY 209 (1989); Caleb Foote, Vagrancy-Type Law and Its Administration,

104 U. PA. L. REV. 603, 615-16 (1956).

(53) Foote, supra note 52, at 615-16.

(54) A. LEON HIGGINBOTHAM, JR., IN THE MATTER OF COLOR 276 (1978); Maclin,

supra note 40, at 335.

(55) THEODORE BRANTNER WILSON, THE BLACK CODES OF THE SOUTH 98-99 (1965). See

also ROBERT CRUDEN, THE NEGRO IN RECONSTRUCTION 20 (1969)(describing white

Southerners' fear of Negro mobility during Reconstruction).

(56) Morales, 119 S. Ct. at 1858 n.20.

(57) See Gabriel Carter, Remembering Water: Overcoming Historical Amnesia in

South Africa, 8 COLO. J. INT'L ENVT. L. & POL'Y 359, 369 (1997)(citing KADER

ASMAL ET AL., RECONCILIATION THROUGH TRUTH: A RECKONING OF APARTHEID'S

CRIMINAL GOVERNANCE 131 (2nd ed. 1997)). Cf. Saenz v. Roe, 119 S. Ct. 1518

(1999) (declaring unconstitutional California welfare reform measure that ties

amount of benefits to durational residency requirements as a violation of

citizens' constitutional right to travel from one state to another); Linda

Greenhouse, Newcomers to States Win A Right to Equal Welfare, N.Y. TIMES, May

18, 1999, at A1.

(58) Alshuler & Schulhofer, supra note 24, at 233-37 (arguing that the

ordinance's most problematic grant of discretion "lies in the almost

unfettered power of an arresting officer to determine whether a suspect has

adequately complied with a police order to disperse.").

(59) Brief of Chicago Alliance for Neighborhood Safety et al., as Amicus

Curiae in Support of Respondents at 23, City of Chicago v. Morales, 119 S. Ct.

1849 (1999)(No. 97-1121).

(60) Id.

(61) City of Chicago v. Morales, 687 N.E.2d 53, 64 n. 21 (Ill. 1997).

(62) Id.

(63) Brief for the Petitioner at 3, 14, Morales, (No 97-1121).

(64) Wilson & Kelling, supra note 13, at 31.

(65) Brief for the Petitioner at 10, Morales, (No 97-1121).

(66) See, e.g., Robert C. Ellickson, Controlling Chronic Misconduct in City

Spaces: Of Panhandlers, Skid Rows, and Public-Space Zoning, 105 YALE LJ. 1165

(1996); Dan M. Kahan, Between Economics and Sociology: The New Path of

Deterrence, 95 MICH. L. REV. 2477 (1997); Dan M. Kahan, Social Influence,

Social Meaning, and Deterrence, 83 VA. L. REV. 349 (1997) [hereinafter Kahan,

Social Influence]; Tracey L. Meares, Social Organization and Drug Law

Enforcement, 35 AM. CRIM. L. REV. 191 (1998) [hereinafter Meares, Social

Organization].

(67) Kahan, Social Influence, supra note 66, at 370.

(68) Id. at 370-71.

(69) Id. at 391.

(70) Id. at 375-76.

(71) See supra note 9. In Fixing Broken Windows, on the other hand, Kelling

and Coles declare the constitutional limits of the broken windows approach to

crime prevention: "Clearly, all police actions involved in order maintenance

would have to be grounded in law and subject to clear constitutional

constraints against infringement of individual liberties." KEELING & COLES,

supra note 29, at 23. (Kelling and Coles wrote this admonition in connection

with their criticism of the Chicago Police Department's practice of

"streetsweeping.") Kelling and Coles devote considerable attention to the

question "whether police can be trusted to maintain order equitably, justly,

and in ways that preserve public peace." Id. at 164. They acknowledge that the

police discretion inevitably involved in order-maintenance "can enforce a

tyranny of the majority, a repression of minority or marginal elements within

the community." Id.

(72) See Kahan & Meares, The Coming Crisis, supra note 7, at 1182-85; Tracey

L. Meares & Dan M. Kahan, The Wages of Antiquated Procedural Thinking: A

Critique of Chicago v. Morales, 1998 U. CHI. LEGAL F. 197 [hereinafter Meares

& Kahan, The Wages of Antiquated Procedural Thinking].

(73) Meares, Social Organization, supra note 60, at 225. As I discuss below,

this claim is not supported by city crime statistics. See infra note 77 and

accompanying text.

(74) Kahan, Social Influence, supra note 66, at 368-69.

(75) Brief for Petitioner at 16, City of Chicago v. Morales, 119 S. Ct. 1849

(1999)(No. 97- 1121).

(76) In 1995, the last year the ordinance was enforced, gang-related homicide

in the city dropped faster than other homicides (26% compared to 9%), while

the rate jumped by 7% the following year when the rate of other homicides

continued to decrease. Brief for Petitioner at 16, Morales, (No.

97-1121)(citing CITY OF CHICAGO, GANG AND NARCOTIC--RELATED CRIME: 1993-1997

(1998)).

(77) CITY OF CHICAGO, supra note 76.

(78) Brief for Petitioner at 16-17, Morales, (No. 97-1121).

(79) See Geoffrey A. Campbell, Putting a Crimp in Crime: Experts Differ Over

Reasons for Falling Rates of Serious Offenses, 83 A.B.A.J., May 1997, at 24;

Alexis Chiu, Crime Rate at 29 year Low in City, BOSTON GLOBE Aug. 28, 1997, at

Al; Gordon Witkin, The Crime Bust, U.S. NEWS & WORLD REP., May 25, 1998, at

28, 30-37 (conceding that "the national causes of the improvement remain

mysterious," but attributing the decline in national crime rates primarily to

decreased crack use). Recent economic growth and relatively low rates of

unemployment are under-explored possible reasons for the drop in crime.

(80) CHICAGO COMMUNITY POLICING EVALUATION CONSORTIUM, COMMUNITY POLICING IN

CHICAGO, YEAR FOUR: AN INTERIM REPORT 9 (1998).

(81) Morales, 119 S. Ct. at 1855 n.7.

(82) Fox Butterfield, Reason for Dramatic Drop in Crime Puzzles the Experts,

N.Y. TIMES, Mar. 29, 1998, at 16.

(83) See Richard Curtis, The Improbable Transformation of Inner-City

Neighborhoods: Crime, Violence, Drugs, and Youth in the 1990s, 88 J. CRIM. L.

& CRIMINOLOGY 1233 (1999) (providing an ethnographic study of reduction in

Brooklyn, New York). Curtis rejects the claim that crime reduction stemmed

from the police department's policy: "While aggressive policing certainly

resulted in a reluctance by many people to linger in public places.... it can

hardly account for the profound changes which occurred in the daily lives of

inner city residents." Id. at 1275. s4 Michael Cooper, Homicides Decline Below

1964 Level in New York City, N.Y. TIMES, Dec.

(84) 1998, at Al. Mayor Guiliani's quality-of-life initiative may create an

impediment to law enforcement as the criminal courts are unable to handle the

surge of minor cases inundating the system. See David Rohde, A Glut of Minor

Cases Swamps City's Courts, N.Y. TIMES, Feb. 2, 1999, at A19.

(85) WESLEY G. SKOGAN, DISORDER AND DECLINE: CRIME AND THE SPIRAL OF DECAY IN

AMERICAN NEIGHBORHOODS (1990). Disorder and Decline concerns the broader

relationship between disorder and neighborhood decline, and its reanalysis of

existing data on victimization is only a small part of Skogan's study. I focus

on Skogan's conclusions about a disorder/crime nexus because they are cited as

proof of the broken windows hypothesis. See infra notes 8%88, and accompanying

text.

(86) See Skogan, supra note 85, at 75.

(87) Id.

(88) KELLING & COLES, supra note 29, at 24.

(89) Harcourt, supra note 6, at 295. Harcourt first identifies several

problems with Skogan's data and design decisions. He points out, for example,

that a number of the underlying surveys are missing values for most of the

main variables in Skogan's index of physical and social disorder. Id. at

315-17. Moreover, the independent variable called "disorder" includes elements

such as drug trafficking and gang activity which overlap with the dependent

variable--the level of serious criminal activity. Id. at 317-19. Analyzing

whether disorder is causally related to serious crime becomes tautological if

respondents considered these disorderly activities to be major crimes in

themselves.

(90) Id. at 320.

(91) Id. at 320-21. Skogan justifies relying on robbery victimization alone

because these data are more reliable than data on the other crimes. Skogan,

supra note 85, at 195 n.1. The small size of neighborhood samples for purse

snatching (16 neighborhoods) and rape (24 neighborhoods), and problems with

the survey questions for assault victimization were reasons to exclude these

crimes. Harcourt points out, however, that the data on burglary victimization

are more reliable than the robbery surveys: there are 10 more neighborhoods

for burglary (40 neighborhoods) than for robbery (30 neighborhoods). Harcourt,

supra note 6, at 322; memo from Bernard Harcourt to Dorothy Roberts (July 5,

1999)(on file with author). Moreover, the typical question for burglary

victimization is by definition neighborhood specific (i.e., burglaries

necessarily take place in the victim's neighborhood because they occur in the

home), whereas the questions about robbery victimization were not neighborhood

specific. Harcourt, supra note 6, at 322. By replicating Skogan's study,

Harcourt's aim is not to confirm that the victimization data are reliable, but

to show that they cannot be used to prove a causal connection between disorder

and serious crime. I am indebted to both Bernard Harcourt and Wesley Skogan

for correspondence clarifying their analyses.

(92) Id. at 323 (emphasis in original). Harcourt's exclusion of the five

Newark neighborhoods may be criticized for reducing the sample to an

unreliable size (from 30 neighborhoods to 25). Harcourt argues that, given the

small data set, it is fairer to exclude these neighborhoods than to include

them because they distort the relationship between disorder and crime.

(93) Id. at 329.

(94) Conversely, even airtight proof that order-maintenance policing reduces

serious crime would not resolve the issue of its justice or morality. While

empirical research can assist us in deciding what justice requires, it cannot

replace our concern for justice.

(95) See McGowan v. Ward Parking Shopping Center Co., No. 98-0836-CV-W-9 (W.D.

Mo., filed July 28, 1998)(alleging security guards at shopping mall ejected

African American teenagers and had them arrested for trespass because of their

race). I am grateful to Beth Colgan for bringing this lawsuit to my attention.

(96) Columnist Bob Herbert reports that increased police abuse of Black New

Yorkers as a result of the city's aggressive policing initiative has

influenced the survival lessons Black children learn:

Some parents and civic leaders are teaching black and Hispanic children to

quickly display their hands during any encounter with the police, like

little criminals. This is to show that the youngsters are not armed and

therefore should not be blown into eternity at age 10 or 15 or 20 by a

trigger-happy stranger in a blue uniform.

Bob Herbert, A Brewing Storm, N.Y. TIMES, Feb. 11, 1999, at A31. See also Jodi

Wilgoren & Ginger Thompson, After Shooting, An Eroding Trust in Police, N.Y.

TIMES, Feb. 19, 1999, at A1 (quoting African-American captain in Department of

Corrections as saying young people in his Bronx neighborhood view the police

as "thugs with guns in blue uniforms").

(97) See CHICAGO ALLIANCE FOR NEIGHBORHOOD SAFETY, supra note 7, at 4 (stating

that 71% of respondents in a survey of 968 Chicago public high school students

conducted by CANS reported that they had been stopped by police and many were

"subjected to `racial slurs, name calling, being sworn at, told to shut-up,

being threatened and shoved.' Many described feeling they had been treated

like `a piece of trash,' `like dirt,' `like an animal,' `like a slave.'").

Sometimes police abuse of teens turns deadly. In December, police officers in

Riverside, California, shot Tyisha Miller, a Black 19-year-old girl, 12 times

as she sat in her car at a gas station, waiting for assistance with a flat

tire. Lisa O'Neill Hill, State DA Invited To Review of Police in Miller

Shooting, THE PRESS-ENTERPRISE (Riverside, CA), Jan. 16, 1999, at B5. Police

officers' claim that Miller reached for a gun when an officer broke the car

window is disputed by her relatives. See 300 Protest Police Shooting, HOUSTON

CHRONICLE, Jan. 5, 1999, at 4. See also, Jager v. Woodland Park, 543 F. Supp.

282 (D. Colo. 1982) (attributing police killing of teen to negligent training

and supervision).

(98) See Alshuler & Schulhofer, supra note 24, at 230 ("In the anti-gang

loitering ordinance, the council effectively awarded the police a hassling

license with teeth."). In the early 1980's the Chicago Police Department

implemented another racially-biased strategy for removing disorderly people

from the streets. Police officers arrested hundreds of thousands of Blacks and

Latinos for disorderly conduct with no intention of prosecuting the charges.

Barbara Brotman, ACLU lawsuit seeks to halt `harassment' arrests of

minorities, CHI. TRIB., Feb. 18, 1983, [sections] 2, at 3. People who were

picked up routinely spent a night in jail and were released the following day

when the arresting officer failed to appear in court. Id. A federal lawsuit

filed by the ACLU challenging the practice ended in a settlement that provided

for the city to pay damages to the plaintiffs and required police to appear in

court on disorderly conduct arrests. "Street Sweep" Suit Settled, CHI.

SUN-TIMES, Aug. 7, 1990, at 10.

(99) Brief for the Petitioner at 14, City of Chicago v. Morales, 119 S. Ct.

1849 (1999) (No. 97-1121).

(100) Harcourt, supra note 6, at 305.

(101) Kahan, Social Influence, supra note 66, at 370-71.

(102) Harcourt, supra note 6, at 297 (citations omitted) (quoting Kahan,

Social Influence, supra note 66 and Wilson & Kelling, supra note 13).

(103) Harcourt, supra note 6, at 354.

(104) Id. at 354-77.

(105) Id. at 297.

(106) Id. at 353. For a similar critique of a "prostitution free zone"

ordinance, which uses trespass law to permit the police to eject women

identified as prostitutes from public places, see Lisa E. Sanchez, Enclosure

Acts and Exclusionary Practices: Neighborhood Associations, Community Police

and the Expulsion of the Sexual Outlaw as Other, in BETWEEN LAW AND CULTURE:

THE IDENTITIES CRISIS IN SOCIO-LEGAL SCHOLARSHIP (Lisa Bower et al. eds.,

forthcoming 1999). Professor Sanchez, a sociologist, describes the ordinance

as "a spatial form of governance that seeks to enclose a boundary around the

lifespaces of privileged, propertied residents by excluding the visibly

sexual/sexualized body of the prostitute." Id. at 6. Sanchez notes that the

anti-prostitution ordinance, like vagrancy laws, imposes an outlaw identity on

women subjected to the law and then uses that identity as a basis for

geographic exclusion. Id. at 28.

(107) Jody D. Armour, Race Ipsa Loquitur: Of Reasonable Racists, Intelligent

Bayesians, and Involuntary Negrophobes, 46 STAN. L. REV. 781, 787 (1994). A

1990 University of Chicago study found that "over 56 percent of Americans

consciously believe that blacks tend to be `violence prone.'" Id. (citing Tom

W. Smith, Ethnic Images 9, 16 (Dec. 1990) (General Social Survey Topical

Report No. 19)).

(108) See GEORGE FREDRICKSON, THE BLACK IMAGE IN THE WHITE MIND 256-82

(1971);JOEL WILLIAMSON, THE CRUCIBLE OF RACE: BLACK-WHITE RELATIONS IN THE

AMERICAN SOUTH SINCE EMANCIPATION 111-21 (1984).

(109) See Ishmael Reed, Tuning Out Network Bias, N.Y. TIMES, Apr. 9, 1991, at

A25.

(110) See Tracey Meares, Place and Crime, 73 CHI.-KENT L. REV. 669, 678

(1998)("It appears fairly clear that the disproportionate involvement of

minorities (African Americans in particular) in the criminal justice system

generally stigmatizes all minorities, whether they are categorized as law

breakers or law abiders.").

(111) Armour, supra note 107, at 787; see also ELIJAH ANDERSON, STREETWISE:

RACE, CLASS AND CHANGE IN AN URBAN COMMUNITY 208 (1990)("The public awareness

is color-coded: white skin denotes civility, law-abidingness, and

trustworthiness, while African-American skin is strongly associated with

poverty, crime, incivility, and distrust.").

(112) See Sheri Lynn Johnson, Cross-Racial Identification Errors in Criminal

Cases, 69 CORNELL L. REV. 934, 949 (1984).

(113) Id. at 950-51. See also Sheri Lynn Johnson, Racial Imagery in Criminal

Cases, 67 TUL. L. REV. 1739 (1993)(describing the manipulation of racial fears

and stereotypes in criminal trials). White defendants in self-defense cases

"exploit the racial prejudices of jurors in asserting the reasonableness of

their fear of supposed assailants who are black." Armour, supra note 107, at

783. The disturbing acceptance of race-based evidence and arguments in

self-defense cases is illustrated by the acquittal of Bernhard Goetz for the

attempted murder of four Black teenagers who approached him for money on a New

York subway. See People v. Goetz, 497 N.E.2d 41, (N.Y. 1986); GEORGE P.

FLETCHER, A CRIME OF SELF-DEFENSE: BERNHARD GOETZ AND THE LAW ON TRIAL 206-08

(1988)(describing defense attorney's trial tactics that emphasized the racial

identity of the teenagers shot by Goetz).

(114) DAVID COLE, No EQUAL JUSTICE: RACE AND CLASS IN THE AMERICAN CRIMINAL

JUSTICE SYSTEM 16-62 (1998)(discussing racial bias in consent searches,

pretext stops, quality-of-life policing, and drug courier profiles); RANDALL

KENNEDY, RACE, CRIME, AND THE LAW 136-67 (1997) (criticizing racially

discrimination in investigative policing); Jeffrey Goldberg, The Color of

Suspicion, N.Y. TIMES, June 90, 1999, [sections] 6 (Magazine), at 51; Sheri

Lynn Johnson, Race and the Decision to Detain a Suspect, 93 YALE L.J. 214, 214

(1983); see also Wilgoren & Thompson, supra note 96 ("Among African-Americans,

the experience of having unwarranted run-ins with the police seems

universal.").

(115) MICHAEL K. BROWN, WORKING THE STREET: POLICE DISCRETION AND THE DILEMMAS

OF REFORM 170 (1981); David A. Harris, Factors for Reasonable Suspicion: When

Black and Poor Means Stopped and Frisked, 69 INDIANA L.J. 659 (1994). See

United States v. Williams, 714 F.2d 777, 780 (8th Cir. 1983)(upholding

officer's decision to detain two Black women during an investigation of a bank

robbery based on the observation that "it was `rare' for black persons to be

in the predominantly white neighborhood where the robbery occurred").

(116) Meares, Social Organization, supra note 66, at 681.

(117) See, e.g., United States v. Weaver, 966 F.2d 391, 391 (8th Cir.

1992)(including among factors that created reasonable suspicion the fact that

defendant was a "`roughly dressed' young black male"); Angela J. Davis, Benign

Neglect of Racism in the Criminal Justice System, 94 MICH. L. REV. 1660, 1661

n.5 (1996)(book review) (citing cases in which courts approved of race as a

factor in police decisions).

(118) Goldberg, supra note 114, at 56-57.

(119) Id. at 57.

(120) See Racial Discrimination on the Beat: Extending the Racial Critique to

Police Conduct, 101 HARV. L. REV. 1494, 1508 (1988).

(121) Davis, supra note 33, at 28-30.

(122) See Maclin, supra note 45, at 344-54; COLE, supra note 114, at 34-41.

(123) See Jeff Brazil & Steve Berry, Color of Driver is Key to Stops in 1-95

Videos, ORLANDO SENTINEL, Aug., 23, 1992, at Al; Henry Pierson Curtis,

Statistics Show Pattern of Discrimination, ORLANDO SENTINEL, Aug. 23, 1992, at

A11. For other studies showing racial bias in traffic stops, see John

Lamberth, Driving While Black, WASH. POST, Aug. 16, 1998, at C1; Paul W.

Valentine, Md. State Police Still Target Black Motorists, ACLU Says, WASH.

POST, Nov. 15, 1996, at Al. New Jersey Governor Christine Todd Whitman

recently conceded that "some state troopers singled out black and Hispanic

motorists on the highway, and that once they were pulled over, they were more

than three times as likely as whites to be subjected to searches." Iver

Peterson, Whitman Concedes Troopers Used Race In Stopping Drivers, N.Y. TIMES,

April 21, 1999, at Al. See also David Kocieniewski Trenton Charges 2 Troopers

with Faking Drivers' Race; Case Is Seen as Evidence of Racial Profiling, N.Y.

TIMES, April 20, 1999, at A23 (reporting indictments of two New Jersey state

troopers accused of common practice of "falsifying documents to make it appear

that some of the black motorists they stopped were white" and noting that the

officers shot three unarmed men, two Black and one Hispanic, during a traffic

stop); David Kocieniewski, Drivers Tell of Racial Profiling by Troopers, N.Y.

TIMES, April 14, 1999, at A24 (describing hearing held by Black and Latino

Caucus of New Jersey Legislature on allegations of racial profiling by state

police and noting 1996 court decision finding "evidence of systemic

discrimination by troopers against black motorists").

(124) Davis, supra note 33, at 28-30.

(125) See David A. Harris, "Driving While Black" and All Other Traffic

Offenses: The Supreme Court and Pretextual Traffic Stops, 87J. CRIM. L. &

CRIMINOLOGY 544 (1997); David Cole, "Driving While Black," Curbing Race-Based

Traffic Stops, WASH. POST, Dec. 28, 1998, at A25.

(126) See United States v. Leviner, 31 F. Supp. 2d 23 (D. Mass. 1998); Fox

Butterfield, Bias Cited in Reducing Sentence of Black Man, N.Y. TIMES, Dec.

17, 1998, at A22. Judge Gertner reasoned that by taking racially-biased

traffic convictions into account, the federal sentencing guidelines

overestimate the defendant's culpability and perpetuate racial disparities in

the state system. Leviner, 31 F. Supp. 2d at 33. Black motorists have filed

numerous individual and class-action lawsuits against city and county

officials charging racial bias in police traffic stops. Several have resulted

in out-of-court settlements agreeing to judicial monitoring of stops. Cole,

supra note 125; KATHERYN K. RUSSELL, THE COLOR OF CRIME: RACIAL HOAXES, WHITE

FEAR, BLACK PROTECTIONISM, POLICE HARASSMENT, AND OTHER MACROAGRESSIONS 40-43

(1998).

(127) See Whren v. United States, 517 U.S. 806, 819 (1996). For criticism of

Whren for failing to give African Americans a legal remedy for discriminatory

police stops, see Harris, supra note 125; Maclin, supra note 45; Angela J.

Davis, Race, Cops, and Traffic Stops, 51 U. MIAMI L. REV. 425 (1997).

(128) MARC MAUER & TRACY HULING, THE SENTENCING PROJECT, YOUNG BLACK AMERICANS

AND THE CRIMINAL JUSTICE SYSTEM: FIVE YEARS LATER 12 (1995).

(129) Davis, supra note 33, at 30.

(130) Goldberg, supra, note 114, at 87. Police also impose a racial double

standard in the way they treat drug offenders whom they catch--"the way in

which white drug users know with near 100-percent certainty that they will

never go to jail for marijuana possession. How they know that they will never

be jacked up during a pretext stop. How white cops cut white kids a break."

Id.

(131) Bernard Harcourt also provides a helpful figure to illustrate the social

influence conception of deterrence. See Harcourt, supra note 6, at 308.

(132) Brief for the Petitioner at 42, City of Chicago v. Morales, 119 S. Ct.

1849 (1999) (No. 97-1121). See also Reply Brief for the Petitioner at 31,

Morales, (No. 97-1121) (referring to police orders to disperse as a "minor

inconvenience").

(133) Brief for the Petitioner at 40, Morales, (No. 97-1121).

(134) Scientific racism similarly accounted for the anomaly of slavery

existing in a republic founded on a radical commitment to liberty, equality,

and natural rights. This contradiction necessitated the strict dichotomy

between slaves and free men based on the belief in the natural inferiority of

Blacks and superiority of whites. Barbara Jeanne Fields, Slavery, Race, and

Ideology in the United States of America, 181 NEW LEFT REV. 95 (1990).

(135) Lawrence Lessig, The Regulation of Social Meaning, 62 U. CHI. L. REV.

943, 960-61 (1995).

(136) Matt Bai & Gregory Beals, A Mayor Under Seige, NEWSWEEK, April 5, 1999,

at 40, 41.

(137) Michael Cooper, Safir May Use Police Data to Back Unit, N.Y. TIMES,

April 19, 1999, at A23.

(138) Id. These figures reflect an intensified version of the common practice

of police, dating back to the 1960's, to arbitrarily stop and frisk Black men.

See Tracey Maclin, Terry v. Ohio's Fourth Amendment Legacy: Black Men and

Police Discretion, 72 ST. JOHN'S L. REV. 1271, 1272-75 (1998).

(139) Bai & Beals, supra note 136, at 41; Joseph P. Fried & Blaine Harden,

Officer Guilty of Helping Torture Immigrant, N.Y. TIMES, June 9, 1999, at Al.

(140) See, e.g., Joel Berger, The Police Misconduct We Never See, N.Y. TIMES,

Feb. 9, 1999, at A23; Dan Berry, Leaders of Precinct Are Swept Out in Torture

Inquiry, N.Y. TIMES, Aug. 15, 1997, at Al; Bob Herbert, Beyond the Diallo

Case, N.Y. TIMES, April 4, 1999, [sections] 4, at 11; Bob Herbert, Pushing

People Around, N.Y. TIMES, Feb. 25, 1999, at A27. See also Jodi Wilgoren,

Police Profiling Debate: Acting on Experience, or on Bias, N.Y. TIMES, April

9, 1999, at A21 (linking New York City's aggressive policing policy, racial

profiling, and police abuse; "[A] growing chorus of community leaders see a

presumptive linking of minorities to crime that has caused intolerable

humiliation and physical abuse of innocent citizens--even Mr. Diallo's

death.").

(141) Bai & Beals, supra note 136, at 40 (describing demonstration at New York

City Hall following Diallo killing in which 1,000 protestors were arrested);

Jodi Wilgoren, Thousands Rally in Diallo's Memory for Strong Oversight of

Police, N.Y. TIMES, April 16, 1999, at A21 (reporting four-hour rally at the

Federal Plaza in New York City demanding 10-point plan for police reform,

including federal monitoring of police conduct). As Joseph D. McNamara, a

former police chief, writes, "When Amadeo Diallo died, so did quality-of-life

policing." Joseph D. McNamara, Giuliani Cop System Doesn't Work, Newsday,

April 15, 1999, (available at <http://www.openair.org/alerts / artist /

nycmcnam.html>). McNamara argues that the Diallo killing occurred because

[T]he four policemen indicted on murder charges, and their fellow officers,

have been conditioned to believe that quality of life policing--cracking

down on minor violations by aggressively confronting people walking the

streets of New York--is the way to reduce crime,... [which] reinforces a

growing view among police officers that the public is teeming with

predatory criminals....

Id.

(142) See RUSSELL, supra note 126, at 13848. Russell describes the harms

created by racial discrimination in the criminal justice system as

"alienation, violence, community unrest, negative health consequences, and

greater adherence to genocidal theories." Id. at 148.

(143) See Tracey L. Meares, Social Organization, supra note 66, at 205 (noting

that tough sentences produce negative consequences for community social

organization in poor, minority neighborhoods, including family disruption,

unemployment, and low economic status.) David Cole summarizes the alarming

statistics regarding Black imprisonment:

The per capita incarceration rate among blacks is seven times that among

whites. African Americans make up about 12 percent of the general

population, but more than half of the prison population. They serve longer

sentences, have higher arrest and conviction rates, face higher bail

amounts, and are more often the victims of police use of deadly force than

white citizens. In 1995, one in three young blacks between the ages of

twenty and twenty-nine was imprisoned or on parole or probation. If

incarceration rates continue their current trends, one in four young black

males born today will serve time in prison during his lifetime (meaning

that he will be convicted and sentenced to more than one year of

incarceration). Nationally, for every one black man who graduates from

college, 100 are arrested.

COLE, supra note 114, at 4-5.

(144) See Harcourt, supra note 6, at 381-82 (describing the ordeal of arrest

for minor offenses).

(145) See, e.g., Robyn Blumner, When the Law is Based on Looks, ROCKY MOUNTAIN

NEWS, May 10, 1998, at 5B (describing arrest of Gregorio Gutierrez who was

sentenced to 27 days in jail).

(146) MICHEL FOUCAULT, DISCIPLINE AND PUNISH 301 (1977).

(147) See Kahan, Social Influence, supra note 66; Kahan & Meares, The Coming

Crisis, supra note 7; Meares & Kahan, The Wages of Antiquated Procedural

Thinking, supra note 77, at 213 ("Chicago's gang loitering ordinance is an

example of a policy tool that is a tolerably moderate way to steer children

away from criminality.").

(148) Meares & Kahan, The Wages of Antiquated Procedural Thinking, supra note

72, at 213.

(149) Id.

(150) See supra note 140 and accompanying text.

(151) Timothy Egan, Less Crime, More Criminals, N.Y. TIMES, March 7, 1999,

[sections] 4, at 1; Fox Butterfield, Number of Inmates Reaches Record 1.8

Million; Data Show Crime Rate Continues to Decline, N.Y. TIMES, March 15,

1999, at A14.

(152) See Herbert, supra note 96.

(153) Meares, Social Organization, supra note 66, at 213.

(154) Id.

(155) KENNEDY, supra note 114, at 19; Kahan & Meares, The Coming Crisis, supra

note 7, at 1166.

(156) KENNEDY, Supra note 114, at 19.

(157) Kahan & Meares, The Coming Crisis, supra note 7, at 1166. It is

interesting to note, however, that Kennedy co-authored an amicus brief

opposing the Chicago ordinance. See Brief of Chicago Alliance for Neighborhood

Safety et al. as Amicus Curiae in Support of Respondents, City of Chicago v.

Morales, 119 S. Ct. 1849 (1999) (No. 971121). See also Randall Kennedy, Guilty

by Association, THE AM. PROSPECT 66 (May-June, 1997)(criticizing California

Supreme Court's decision in People ex rel. Gallo v. Acuna upholding injunction

against 38 individuals deemed to be members of a criminal street gang).

(158) Kahan & Meares, The Coming Crisis, supra note 7; Meares & Kahan, The

Wages of Antiquated Procedural Thinking, supra note 72; Tracey L. Meares & Dan

M. Kahan, When Rights Are Wrong: Chicago's Paradox of Unwanted Rights, 24

BOSTON REV. 4 (April/May 1999). Kahan and Meares reiterate their argument in

an amicus brief they filed in Morales on behalf of twenty neighborhood

organizations which backed the gang-loitering ordinance. See Brief Amicus

Curiae of Chicago Neighborhood Organizations in support of Petitioners,

Morales (No. 97-1121).

(159) See Kahan & Meares, The Coming Crisis, supra note 7, at 1154. Justice

Clarence Thomas dissented in Morales on similar grounds: "Today, the Court

focuses extensively on the `rights' of gang members and their companions. It

can safely do so--the people who live with the consequences of today's opinion

do not live in our neighborhoods." Morales, 119 U.S. at 1887 (Thomas, J.,

dissenting). A Chicago columnist retorted, "True--and Clarence Thomas,

ensconced in well-to-do Fairfax County, Va., will never be ordered to leave

his front sidewalk for chatting with someone who, unknown to him, is a gang

member." Steve Chapman, Court Upholds America's Right to Hang Out, CHI. TRIB.,

June 13, 1999, [sections] 1, at 19.

(160) See Dorothy E. Roberts, Welfare and the Problem of Black Citizenship,

105 YALE L. J. 1563, 1597-1602 (1996) (book review) (citing ROBERT ALLEN,

BLACK AWAKENING IN CAPITALIST (2d ed. 1970)).

(161) See Kahan & Meares, The Coming Crisis, supra note 7, at 1182 (asserting

"the over-whelming support of inner-city residents for the elements of the new

community policing"), see also Brief Amicus Curiae of the Chicago Neighborhood

Organizations in Support of the Petitioner at 14, Morales (No. 97-1121)

(stating that the gang-loitering ordinance was "enacted at the behest of"

minorities in Chicago).

(162) Robert Davis, New Police Arrest Power Lights City Council Fuse, CHI.

TRIB., June 18, 1992, [sections] 1, at 1.

(163) Kahan and Meares castigate the Illinois ACLU for opposing the

gang-loitering ordinance without taking into account the experiences of black

inner-city residents. Kahan & Meares, The Coming Crisis, supra note 7, at

1159-60.

(164) For example, Jim Fields, Director of the Northwest Federation Coalition

of Community Groups, testified that "[G]ang loitering is very intimidating. It

prohibits... people from using the park. It prohibits seniors from walking

outside their door." Chicago City Council Committee on Police and Fire,

Transcription of Proceedings 139 (May 15, 1992).

(165) George Kyros, who represented the United Business Association of

Woodlawn, testified that he supported the ordinance to combat "[c]orners

loaded with either gangs, professional gangs or to a lesser extent and

probably to a more pitiful extent the bottle gangs, which create just as bad a

sight, just as bad on destroying our community as sophisticated street gangs."

Id. at 65. Another witness complained that "you can't cut through the alley

because it's so many women with they babies out there." Id. at 122.

(166) See id. at 95, 101,108.

(167) Chicago City Council Committee on Police and Fire, Transcription of

Proceedings 36 (May 18, 1992).

(168) Chicago City Council Committee on Police and Fire, Transcription of

Proceedings 97-98 (May 15, 1992) (testimony of Velma Jetton). Ms. Jetton

stated that she supported the ordinance, but wanted its language changed to

avoid this potential unfairness. Id.

(169) Brief of Chicago Alliance for Neighborhood Safety et al. as Amicus

Curiae in Support of Respondents at 5, Chicago v. Morales, 119 S. Ct. 1849

(1999) (No. 97-1121).

(170) Fran Spielman, Loitering Ban Passes, CHI. SUN-TIMES, June 18, 1992, at

16.

(171) Id.

(172) Brief of Respondents at 3, Morales, (No. 97-1121).

(173) Brief Amicus Curiae of the Chicago Neighborhood Organizations in Support

of Petitioner, Morales, (No. 97-1121).

(174) Id. at 2.

(175) Brief of Chicago Alliance for Neighborhood Safety et al. as Amicus

Curiae in Sup port of Respondents, Morales, (No. 97-1121).

(176) Id. at 1.

(177) Id. at 1 n.4. Only one of these organizations dissented.

(178) Id. at 3.

(179) Id. at 4.

(180) Brief Amicus Curiae of the Chicago Neighborhood Organizations in Support

of Petitioner at 14, Morales, (No. 97-1121).

(181) Brief of Chicago Alliance for Neighborhood Safety et al. at 9-10,

Morales (No. 97-1121). See also Chicago City Council Committee on Police and

Fire, Transcription of Proceedings 55-56 (May 15, 1992)(describing the role of

the U.S. Department of Justice, Chicago Corporation Counsel, Chicago Police

Department, and Illinois States' Attorney in drafting the ordinance. But see

Meares & Kahan, The Wages of Antiquated Procedural Thinking, supra note 72, at

199 (stating that the representative of a predominantly Black ward, Alderman

Beavers, sought to introduce the ordinance). Albert Alschuler and Stephen

Schulhofer strenuously dispute Meares and Kahan's portrayal of community

support for the ordinance. See Alschuler & Shulhofer, supra note 24, at

217-20. They point out that Alderman Beavers forwarded the draft ordinance to

the full council only after it had been introduced six months earlier by white

aldermen. Alschuler and Schulhofer conclude that Meares and Kahan's claim that

inner-city residents favor the ordinance is "oversimplified and misleading."

Id. at 220.

(182) See David B. Wilkins, Two Paths to the Mountaintop? The Role of Legal

Education in Shaping the Value of Black Corporate Lawyers, 45 STAN. L. REV.

1981, 2016 (1993)(stating that "there is no way to poll the black community to

determine their true desires"). See also Alschuler & Schulhofer, supra note

24, at 240-43 (noting difficulties in defining that relevant community).

(183) Editorial, Supreme Court Should Squash Anti-Gang Ordinance, CHI.

DEFENDER, April 23, 1998, at 11.

(184) Cliff Kelly Radio Show (WVON Chicago radio broadcasts, various dates).

(185) See RUSSELL, supra note 126, at 35 (discussing surveys that demonstrate

most Blacks believe the police, and criminal justice systems are racially

biased against them); Tracey Maclin, "Black and Blue Encounters"--Some

Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter?, 26

VAL. U.L. REV. 243, 243-45 (1991). See also Maclin, supra note 138, at 1279-87

(discussing history of resentment stop and frisk tactics caused in Black

neighborhoods). New York Times reporters who interviewed more than 100 New

York City residents following the police shooting of an unarmed West African

immigrant found "anger and fear mixed with sadness and suspicion as people

drew links between the shooting and their own lives." Wilgoren & Thompson,

supra note 96. A 20-year-old Black construction worker from Brooklyn told the

reporters "he feels safer at night passing the projects than the local police

station." Id.

(186) Kahan & Meares, The Coming Crisis, supra note 7, at 1154.

(187) See Alschuler & Schulhofer, supra note 24, at 221-22 (describing control

of Chicago's city government by whites, despite election of African American

mayor in 1983).

(188) See DERRICK BELL, FACES AT THE BOTTOM OF THE WELL: THE PERMANENCE OF

RACISM (1992); see also Derrick A. Bell, Jr., Brown v. Board of Education and

the Interest-Convergence Dilemma, 93 HARV. L. REV. 518 (1980).

(189) Paul Buffer, Racially Based Jury Nullification: Black Power in the

Criminal Justice System, 105 YALE L.J. 677 (1995). For a critique of Butler's

jury nullification proposal and Buffer's reply, see Andrew D. Leipold, The

Dangers of Race-Based Jury Nullification: A Response to Professor Butler, 44

UCLA L. REV. 109 (1996), and Paul Buffer, The Evil of American Criminal

Justice: A Reply, 44 UCLA L. REV. 143 (1996) [hereinafter Buffer, The Evil of

American Criminal Justice]. Butler's response to Leipold's fear of a white

backlash to Black jury nullification is particularly relevant to this

discussion: "If African Americans adapted their political and self-help

strategies so as not to raise the possibility of white backlash, they would

scarcely advance at all." Butler, The Evil of American Criminal Justice,

supra, at 155. Buffer contends that many Black Americans side with him. I& at

147.

(190) See Paul Butler, Affirmative Action and the Criminal Law, 68 U. COLO. L.

REV. 841, 877, 880-82 (1997). Buffer advocates an affirmative action program

for Black criminal defendants that also provides that Black people not be

sentenced to death for interraccial homicide; that Blacks be arrested and

sentenced to prison for drug offenses only in proportion to their actual

commission of those crimes (no more than 12% of the total); and that a goal

for 2000 should be a prison population that more accurately reflects the

proportion of Blacks in the general population. See id. at 877.

(191) See RUSSELL, supra note 126, at 47-55; Henry L. Gates, Jr., Thirteen

Ways of Looking at a Black Man, NEW YORKER, Oct. 23, 1995, at 56.

(192) See Kahan & Meares, The Coming Crisis, supra note 7, at 1154.

(193) See Steve Mills, One Step to Reform: 2 Steps Back Corruption, Brutality

Charges still Tarnish Police, CHI. TRIB., Feb. 11, 1999, [sections] 1, at 1

(describing recent incidents of police misconduct in Chicago and asserting

that "community trust in the police is eroding in some of the city's most

troubled neighborhoods, threatening to undercut the department's community

policing program."). As noted above, New York City is experiencing a similar

epidemic of race-based police abuse--"killings, the torturing of Abner Louima,

the invasions of rampaging cops of the apartments of innocent families, the

routine beatings and harassment of young men and boys, the curses and the

racial slurs, the arrests on phony charges of individuals who dare to object

to abusive treatment and more." Herbert, supra note 96, at A31. See also

Deborah Sontag & Dan Barry, Challenge to Authority: A Special Report;

Disrespect as Catalyst for Brutality, N.Y. TIMES, Nov. 19, 1997, at A1

(describing numerous cases of police abuse of New Yorkers who challenged

police authority).

(194) Lynn Sweet, Rights Group Notes City's Police Abuse, CHI. SUN-TIMES, July

8, 1998, at 22. The Human Rights Watch report notes that between 1992 and

1997, the city paid more than $29 million in settlements stemming from 1,657

lawsuits alleging excessive force, false arrest, and improper search. Id.

(195) See Robert Blau & David Jackson, Police Study Turns Up Heat on

Brutality, CHI. TRIB., Feb. 9, 1992, [sections] 1, at 1. See also People v.

Cannon, 688 N.E. 2d 693 (Ill. App. Ct. 1997) (vacating denial of motion to

suppress evidence of confession based on newly discovered evidence showing 28

suspects were tortured at Chicago police station where defendant was

interrogated).

(196) See Jonathan Eig, Making Them Talk, CHI. MAG., Jan. 1, 1999, at 50. The

family of the eight-year-old filed a lawsuit against the City of Chicago, the

Chicago Police Department, and two officers who interrogated the boys alleging

false arrest and imprisonment, malicious prosecution, and intentional

infliction of emotional distress. Matt O'Connor & Teresa Puente, 8-Year-Old's

Family Sues Over Arrest for Murder, CHI. TRIB., Feb. 18, 1999, [sections] 2,

at 1.

(197) Tests revealed semen on the victim's underwear, which the boys were

incapable of producing. O'Connor & Puente, supra note 196.

(198) Todd Lighty & Gary Marx, Questions, Protest Cloud Cop Shootings, CHI.

TRIB., June 8, 1999, [sections] 2, at 1. That same month, the U.S. attorney's

office initiated an inquiry into the 1996 killing of another unarmed Black

motorist, Emmett Blanton, Jr., by Chicago police officers, and the Cook County

medical examiner ruled the death of a suspected drug dealer, Gregory Ryan,

during a struggle with police a homicide. Steve Mills & Todd Lighty,

Cop-Linked Death Ruled a Homicide, CHI. TRIB., June 19, 1999, [sections] I, at

1; Todd Lighty & Liam T.A. Ford, Police Face New Probe for 1996 Killing, CHI.

TRIB., June 11, 1999, [sections] 2, at 1. As I completed this Foreword in the

spring and summer of 1999, I recorded an alarming explosion of police

brutality against Blacks across the country, including several killings of

unarmed individuals in New York City, Chicago, and Los Angeles. See supra;

sources cited supra note 139; Todd S. Purdum, A Police Shooting Death, a Study

in Contrasts, N.Y. TIMES, June 5, 1999, at A9 (reporting the fatal shooting in

Los Angeles of Margaret Laverne Mitchell, a 55-year-old homeless woman, who

police say brandished a screwdriver when 2 officers approached her to ask her

whether the shopping cart she was pushing was stolen).

(199) See Kahan & Meares, The Coming Crisis, supra note 7, at 1156. See also

Alschuler & Schulhofer, supra note 24, at 238 ("Anyone who contends that the

institutionalized racism' of American police departments has vanished does not

read the newspapers.").

(200) Similar questions arise in applying constitutional rules to decisions by

sovereign Indian tribes. See Jill E. Adams, The Indian Child Welfare Act of

1978: Protecting Tribal Interests in a Land of Individual Rights, 19 AM.

INDIAN L. REV. 301 (1994) (discussing the conflict between parents'

constitutional rights and tribal sovereignty in issues involving Indian

children); James A. Poore III, The Constitution of the United States Applies

to Indian Tribes, 59 MONT. L. REV. 51 (1998). Moreover, legal protections

against arbitrary official power may be unnecessary, and even harmful, in

community-controlled programs that minimize hierarchical distance between

those in authority and those served. Richard Boldt argues, for example, that

federal confidentiality provisions that reflect liberal legalism's abhorrence

of official discretion undermine helpful communication between staff members

and parents at Head Start centers. See Richard C. Boldt, A Study in Regulatory

Method, Local Political Cultures, and Jurisprudential Voice: The Application

of Federal Confidentiality Law to Project Head Start, 93 MICH. L. REV. 2325

(1995). The stark difference between Head Start staff-parent relationships

based on "a strong commonality of interest and experience," id. at 2363, and

the largely antagonistic relationship between police and inner-city residents

helps to illuminate why official discretion should be allowed in one context

and restrained in the other.

(201) See Kahan & Meares, The Coming Crisis, supra note 7, at 1154 (asserting

that "It]he occasion for the current doctrine's demise, we predict, will be

the political revolution that's now remaking urban law enforcement").

(202) See COLE, supra note 114, at 6 ("At virtually every juncture since

Gideon and Miranda, the Supreme Court has undercut the principle of equality

reflected in those decisions.... Today those decisions stand out as

anomalies").

(203) Harris, supra note 125, at 560-73; Omar Saleem, The Age of Unreason: The

Impact of Reasonableness, Increased Police Force, and Colorblindness on Terry

"Stop and Frisk," 50 OKLA. L. REV. 451 (1997); Gregory Howard Williams, The

Supreme Court and Broken Promises: The Gradual But Continual Erosion of Terry

v. Ohio, 34 How. L.J. 567 (1991). See also Terry v. Ohio, 392 U.S. 1, 30

(1968) (permitting a police officer to stop and frisk suspects without

probable cause if he has reasonable and articulable suspicion that "criminal

activity may be afoot and that the persons with whom he is dealing may be

armed and presently dangerous."). Tracey Maclin argues that Terry itself

"deserves critical attention because it authorized a police practice that was

being used to subvert the Fourth Amendment rights of blacks nationwide."

Maclin, supra note 138, at 1277.

(204) See generally Michael C. Dawson, Black Power in 1996 and the

Demonization of African Americans, 29 POL. SCI. & POL. 456, 458-60

(1996)(describing that marginalization of African Americans in mainstream

democratic politics since the 1970s that has "disrupted black political

aspirations and weakened black power since the end of the civil rights and

black power eras.").

(205) See Dorothy E. Roberts, The Priority Paradigm: Private Choices and the

Limits of Equality, 57 U. PITT. L. REV. 363 (1996).

(206) See DOROTHY ROBERTS, KILLING THE BLACK BODY: RACE, REPRODUCTION, AND THE

MEANINGS OF LIBERTY (1997).

(207) Id. at 202-45.

(208) Id. at 106-08 (discussing Donald Kimelman, Poverty and Norplant: Can

Contraception Reduce the Underclass?, PHILADELPHIA INQUIRER, Dec. 12, 1990, at

A18).

(209) Id. at 150-201.

(210) Rachel L. Swarns, In a Policy Shift, More Parents Are Arrested for Child

Neglect, N.Y. TIMES, October 25, 1997, at Al. Examples of offenders include

Sourette Alwysh, a 34-year-old Haitian immigrant, who "was arrested for living

with her 5-year-old son in a roach-infested apartment without electricity or

running water;" and Sidelina Zuniga, a 39-year-old Mexican immigrant, who was

charged for leaving her sons, ages 10 and four, at home for an hour and a half

while she shopped at a grocery store. Id.

(211) See Skinner v. Oklahoma, 316 U.S. 535 (1942) (striking down eugenic law

that imposed involuntary sterilization of certain criminals).

(212) Butler, The Evil of American Criminal Justice, supra note 189, at 153.

Butler notes the reluctance of white Americans to use the criminal law to deal

with their own drug use while supporting imprisonment of Blacks for drug

offenses. Id. at 149 (noting that "African Americans account for only 13% of

drug users, and yet make up 74% of the people who are incarcerated for drug

use").

(213) COLE, supra note 114, at 5.

(214) Id. A police officer responding to Blacks who resisted aggressive patrol

tactics used in the 1960's poignantly expressed the tension between crime

control in Black neighborhoods and Black rights:

It's harder to work in these neighborhoods now than it used to be because

we send the kids to school and teach them about fights and then put them

back in the neighborhood. I think we ought to either get rid of these

neighborhoods or stop teaching these kids about their rights.

Maclin, supra note 138, at 1271 (quoting JEROME H. SKOLNICK, JUSTICE WITHOUT

TRIAL: LAW ENFORCEMENT IN DEMOCRATIC SOCIETY 88 (2d ed. 1975)).

(215) See Butler, The Evil of American Criminal Justice, supra note 189, at

14748 (noting that his defense of jury nullification is based on the moral

case against racism in the criminal justice system rather than democratic

consensus among Blacks). Of course, these two aspects of the problem--morality

and democracy--are related in the question, "who should be empowered to make

that moral judgment?" See Tracy L. Meares & Dan M. Kahan, Meares and Kahan

Respond, 24 BOSTON REV. 22, 22-23 (April/May 1999). At this stage, we must

rely more on moral argument than evidence of democratic decisionmaking within

Black communities.

DOROTHY E. ROBERTS, Professor, Northwestern University School of Law; Faculty

Fellow, Institute for Policy Research, Northwestern University. I presented a

draft of this Foreword at a faculty workshop at Washington University School

of Law and thank the participants for their very helpful comments and

suggestions. I owe special thanks to Stephen Schulhofer for his engaging

discussion and written comments on an earlier draft. I am also grateful to

Paul Butler, Bernardine Dohrn, Steven Drizin, Harvey Grossman, Bernard

Harcourt, Maurice Lipson, Jeffrey Sharer, and Benjamin Wolf for generously

sharing their insights and information about the Morales case, Monica Neuman

for her dedicated research assistance, and Lesliediana Jones and Lynn Kincade

for expeditious library services.3

-- End --

Back to Gangs and Public Policy Room

Back to Gang Research On Line