IV. BLACK EMPOWERMENT AND THE CONSTITUTIONAL BALANCE

I have argued that taking into account the race of the communities affected

most by Chicago's ordinance helps to explain the law's constitutional harm.

The potential for racially-biased law enforcement is one of the chief dangers

addressed by vagueness doctrine. Moreover, in deciding the constitutionality

of aggressive policing strategies we must be careful to calculate accurately

the costs of sacrificing liberty for the sake of order. Social norm theory

helps to explain the cost to Black Americans of policing strategies that

incorporate racialized categories of orderly and disorderly people. But what

if Black Americans are willing to bear this burden as the price for keeping

their neighborhoods safe? Would Black endorsement of expanded police

discretion change the constitutional balance between liberty and order?

A. LAW ENFORCEMENT AS BLACK LIBERATION

A growing branch of scholarship on race and the criminal justice system

emphasizes the benefit to Black communities of tougher law enforcement. The

decline in brutal police repression of Blacks in the wake of the civil rights

movement combined with the increase in Black-on-Black violence complicates the

unidimensional racial criticism of excessive law enforcement. An alternative

racial argument asserts that victimization by criminals poses a greater threat

to the well-being of Black communities than does the risk of police

abuse.(155) The most influential articulation of this thesis is Randall

Kennedy's book Race, Crime, and the Law. Kennedy contends that "the principal

injury suffered by African Americans in relation to criminal matters is not

overenforcement but underenforcement of the laws."(156) According to this

view, order-maintenance policing corrects the under-enforcement of the

criminal laws in Black neighborhoods and protects their residents from the

greater internal danger caused by the high rates of crime.(157)

Dan Kahan and Tracey Meares combined this thesis with social norm and

political process theory to launch an attack on current criminal procedure

doctrine.(158) Reversing the critical version of the dynamic between Blacks

and police authority, they present order-imposing laws like the Chicago

gang-loitering ordinance as a reflection of Black political strength. Kahan

and Meares argue that the constitutional standards used to evaluate these laws

have outlived their utility and should be replaced by a new criminal procedure

regime that is less hostile to police discretion.

The need for this doctrinal shift stems from changes in racial politics.

According to Kahan and Meares, the current constitutional rules that curb

discretionary policing were part of the civil rights revolution that sought to

prevent the use of law enforcement as an instrument of racial repression. They

allege that today, however, more powerful Black communities are demanding law

enforcement strategies such as anti-loitering laws and curfews to eliminate

visible signs of disorder from their streets. When courts apply criminal

procedure rules adopted in the 1960s to thwart contemporary inner-city crime

initiatives, they supposedly are hurting Black citizens. Thus, Kahan and

Meares assert that "[a] body of doctrine designed to assure racial equality in

law enforcement has now become an impediment to minority communities' own

efforts to liberate themselves from rampant crime."(159) Rules restricting

police discretion used to protect Black citizens from racist law enforcement

practices, they contend; now these rules prevent Black citizens from

protecting themselves from gang violence.

The argument for order-maintenance policing grounded in Black political

empowerment must be taken seriously. It presents a significant challenge to my

claim that vagueness doctrine continues to serve a crucial function in curbing

police abuse of African Americans and the perpetuation of damaging stereotypes

of Black criminality. Implementing more pluralistic interpretations of

constitutional norms is a worthy project. Black citizens' control of the

political, cultural, and economic life of their communities, moreover, is

essential to Black liberation.(160) An important part of this liberation

project is to increase Black citizens' participation in constructing responses

to crime.

Kahan and Meares also correctly observe that racial politics are more

complicated today than at the time liberal criminal procedure doctrines were

instituted. But the increase in Black political participation and shift from

de jure discrimination to other forms of institutional inequality does not

erase the need for these constitutional protections. To the contrary, the

changed conditions of American social and political life require a

constitutional jurisprudence that recognizes how seemingly color blind laws

continue to produce glaring racial inequities in the criminal justice system.

An important mechanism of this racial inequality is the social influence of

police conduct that perpetuates stereotypes of Black criminality.

Support by some Black inner-city residents for the gang-loitering ordinance,

moreover, does not determine its constitutionality. As the next Part

demonstrates, the claim that most inner-city residents endorse the ordinance

is itself hotly disputed. Moreover, there is no democratic process in place

empowering Black communities to determine for themselves the content of

criminal procedure rights. Finally, the argument for a weakened standard of

protection from police abuse that applies particularly to Blacks reinforces

the racial bias that mints the criminal justice system.

B. BLACK COMMUNITY OPINION ON THE GANG-LOITERING ORDINANCE

The Black empowerment argument in favor of the ordinance depends on the

empirical claim that Black citizens who are subject to the law support it.

Kahan and Meares contend that inner-city communities are willing to

internalize the law's deprivation of liberty in exchange for the increase in

order, and predicted reduction in crime, the law provides. Before proceeding

to the political and constitutional significance of Black community

preference, we should investigate the empirical claim that the gang-loitering

ordinance had "the overwhelming support of inner-city residents."(161) In

fact, a review of the legislative history reveals a complicated and diverse

picture of Black people's opinions on the matter. The Chicago Tribune

described the city council proceedings as "one of the most heated and

emotional council debates in recent memory."(162) Casting that debate as a

conflict between white liberals who opposed the ordinance on civil liberties

grounds and Black residents who demanded the ordinance to safeguard their

neighborhoods, as Meares and Kahan do, seriously mischaracterizes the range of

arguments expressed.(163) There were academics, activists, and residents of

all backgrounds on both sides of the issue.

Some witnesses at the hearings on the proposed ordinance supported the law

because they believed it would eliminate the intimidating presence of gang

members in their neighborhoods.(164) Others, however, seemed more concerned

about the impact that the public proximity of various types of socially

undesirable people had on property values and business revenues.(165) Several

residents testified that they were frustrated by the lack of police

responsiveness to their complaints about illegal activity on the part of

gangs.(166) One witness stated, for example, that when she complained about

gang members blowing whistles in her alley at night, a police officer

responded that "'until they break in and stab you, we aren't going to do

anything."(167) But community outrage about gang criminality and the police

department's failure to combat it did not necessarily translate into

endorsement of the anti-loitering measure. Another witness, for example, noted

that "people have to gather" and expressed concern that the ordinance might be

unfairly applied to "young people on our block ... going to school" and people

"going shopping in the area ... even going to the bus stop."(168)

Any claim of Black community consensus begs the questions, what defines the

community?, who represents the community?, and how are residents' voices

counted? Because the ordinance was proposed and passed by the Chicago City

Council, one relevant form of representation were the aldermen representing

the city's Black neighborhoods. This inquiry suggests that most of the Black

community was opposed to the ordinance: only six out the city's eighteen Black

aldermen voted to pass the gang-loitering law.(169) Several of the Black

aldermen argued passionately that the ordinance hurt the interests of their

constituents. Alderman John Steele declared that the law was "'drafted to

protect the downtown area and the white community' at the expense of innocent

blacks."(170) Alderman Dorothy Tillman called the law "anti-American and

anti-African American," claiming that it would "restrict the movement of young

blacks in a manner similar to the pass laws of South Africa."(171) One Black

alderman noted that there were already laws "dealing with drugs, recruitment

[and] intimidation" that were not being enforced, while another stated that

the ordinance reminded him of discriminatory "street sweeps" conducted by

Chicago police in the early 1980s.(172)

There was also a split in opinion among the grass-roots organizations that

represent inner-city residents and that regularly confront gang violence in

Chicago. Kahan and Meares filed an amicus brief in Morales on behalf of twenty

civic, religious, and other community groups throughout Chicago defending the

ordinance's constitutionality.(173) They argued that these organizations were

in the best possible position to address the law's practical impact because

their members "are the ones who daily face a heightened risk of criminal

victimization from gang criminality, and ... experience first-hand the

destructive impact of gangs--and more severe means of abating gangs---on the

lives of their communities."(174)

Another group of organizations representing Black and Latino residents,

however, filed an amicus brief challenging the constitutionality of the

ordinance.(175) One of the organizations, The Chicago Alliance for

Neighborhood Safety (CANS), is at the forefront of efforts to implement

community policing in Chicago at the grass-roots level. CANS asserted that the

ordinance is "destructive of genuine community policing and ultimately likely

to make Chicago neighborhoods less safe."(176) CANS' opposition to the

loitering ordinance reflects the position of many of Chicago's major

neighborhood-safety organizations, whose representatives sit on CANS' board of

directors.(177) This amicus brief contended, moreover, that the ordinance had

"evoked substantial community opposition"(178) and that this opposition "was

especially intense in the African-American community."(179) It also disputed

the claim that the ordinance was enacted "at the behest of" minority

residents:(180) a neighborhood federation based in a predominantly white

section of the city initiated the proposal, which was then drafted by several

white aldermen and endorsed by the mayor.(181)

At any rate, there is no systematic way of ensuring that the predominantly

Black neighborhood organizations that ratified the ordinance represent a

majority of inner-city residents. No one polled these citizens to determine

their sentiments about the law, nor would such a poll necessarily provide a

reliable indication of community opinion.(182) Without a mechanism for fair

representation, there is a grave danger that neighborhood groups holding a

minority view will become the self-proclaimed voice of the community. Indeed,

it seems likely that the neighborhood associations that supported the

ordinance gained legitimacy and visibility precisely because of their alliance

with the police and city officials. Using their support of the ordinance as an

independent ground to defend deprivations of other residents' rights,

therefore, is especially problematic.

Finally, the Black media, another vehicle for expressing Black residents'

views, appeared generally to oppose the law. Chicago's leading Black

newspaper, the Chicago Defender, condemned the ordinance in an editorial that

boldly declared "Supreme Court Should Squash Anti-Gang Ordinance."(183) One of

Chicago's most popular Black radio hosts also regularly spoke out against the

ordinance.(184)

The conflicting opinions among Blacks about the wisdom of the gang-loitering

ordinance reflect a deeper ambivalence among Blacks about law enforcement

strategies. My sense, confirmed by survey research, is that despite their

opposition to neighborhood crime, most African Americans believe that the

criminal justice system is profoundly biased against them and do not trust the

police to fairly enforce the laws.(185)

C. THE CONSTITUTIONAL IMPLICATIONS OF BLACK EMPOWERMENT

Even if it could be proven that a majority of Black inner-city residents

endorse the loitering law, what relevance would that support have to the law's

constitutionality? The racial argument for relaxing procedural protections

against police abuse hinges on a controversial assessment of Black political

empowerment. According to Kahan and Meares, the implementation of aggressive

policing techniques in urban centers results from Blacks "[f]lexing their

newfound political muscle."(186) Increased Black political strength after the

civil rights movement, they argue, means that inner-city residents are now

involved in deciding police policy and in curbing police abuses. Close

judicial monitoring of police, based on the outdated assumption that white

majorities were imposing order on powerless minorities, is therefore no longer

necessary in today's political context. Political process theory suggests that

less judicial scrutiny is needed when average members of a community whose

political representatives passed an order-enforcing law bear the burden the

law imposes on individual freedom.

The application of political process theory to criminal procedure doctrine

merits serious consideration. As I discussed in Part II, the constitutional

prohibition against vague allocations of police authority stems partly from

the fear that this discretion will be used to repress minority groups. But

political process theory does not support relaxing constitutional scrutiny of

the gang-loitering ordinance or other order-maintenance policing strategies.

To the contrary, the racial divide between those who enacted the law in

Chicago and those who were burdened by it calls for heightened judicial

skepticism. The gang-loitering ordinance was passed by the predominantly white

Chicago City Council, not an inner-city political body. Elected officials of

white districts enacted the ordinance while minority communities were

disproportionately subjected to the violations of liberty it imposed. Most of

the political representatives of the Black communities affected by the

ordinance opposed it. Relatively few white Chicagoans, on the other hand,

risked being arrested for standing on the streets of their neighborhoods: by

centering on suspected gang members and their companions, the very terms of

the law applied virtually to minorities only. Although Black citizens

certainly influence politics in cities like Chicago, they do not (yet)

determine, design, or implement the law enforcement policies that govern their

communities.(187)

A more realistic view of the political process suggests that white support for

tougher police supervision of Blacks helped to guarantee the law's passage,

despite vehement opposition by many Black representatives. The jurisprudence

of racial realism posits that white Americans have repeatedly sacrificed Black

people's rights to maintain their privileged position; legal measures that

improve Black people's status are implemented only if they also further the

interests of the white majority.(188) Whites embrace law enforcement

strategies to crack down on Black criminals that converge with white interests

in reducing crime while preserving their own individual freedoms. Proposals

for increased Black control over criminal justice decision making that

threaten white supremacy, on the other hand, are soundly condemned as radical

nonsense. The enthusiasm whites have for order-maintenance policing is not

extended to, for example, Paul Butler's recommendations that Black jurors

engage in race-based nullification(189) or that Black criminal defendants have

the right to majority Black juries that are authorized to sentence them.(190)

There is a dramatically different response to Black self-help strategies that

would escalate arrests of Blacks and suspend their civil liberties versus

those that might result in greater leniency toward Black offenders. I would

venture that most white Americans find the notion of putting law enforcement

in the hands of Black communities downright terrifying. Witness the angry

reaction of many white Americans to the acquittal of O J. Simpson of murder by

a predominantly Black jury.(191)

Moreover, recent events refute Meares and Kahan's sanguine view of "the

competence of inner-city communities to protect themselves from abusive police

behavior."(192) Cases of horrible police mistreatment of Blacks have dominated

Chicago's political landscape over the last few years.(193) Human Rights Watch

recently highlighted police brutality in Chicago in a report on excessive

force in U.S. cities in the 1980s and 1990s, citing the 1997 beating of

Jeremiah Mearday, who is Black, by two white police officers.(194) Lawsuits

have confirmed numerous complaints about the systematic torture of suspects at

an inner-city police station from 1973 to 1986.(195) Perhaps most emblematic

of the police department's willingness to assume Black criminality was the

arrest of two Black little boys, ages seven and eight, for the brutal sexual

assault and murder of an eleven-year-old Black girl in July 1998.(196) Despite

community protest over officers' unethical means of extracting "confessions"

from the children, charges were dropped only after tests revealed the boys

were too young to commit the crime.(197) A year later, in separate incidents

in June 1999, Chicago police officers fatally shot two unarmed Black

motorists, La Tanya Haggerty, a 26-year-old computer analyst, and Robert Russ,

a Northwestern University senior.(198)

Unfortunately, law enforcement continues to play "a central role in

maintaining the exclusion of African-Americans and other minorities from the

Nation's political life."(199) Political process theory and democratic ideals

mandate attention to Black residents' views about criminal justice in

inner-city communities. They do not justify, however, the dilution of

constitutional protections against police departments that still enforce the

criminal laws in a racially-biased manner.

The question whether an autonomous Black community that enacted its own laws

and controlled its own police force could adjust the current constitutional

balance between liberty and order is an intriguing hypothetical question.(200)

But given the relative political disenfranchisement of Black inner-city

residents, it is only a hypothetical question. Increasing Black political

power is not the occasion for the demise of the Warren Court's criminal

procedure protections.(201) That trend started two decades ago and was hardly

initiated by Blacks.(202) The Court has already relaxed the Terry standard for

reasonable suspicion in deference to law enforcement concerns in ways that

promote the arrest of Blacks and Latinos.(203) The retrenchment in criminal

procedure protections is more accurately attributed to a conservative backlash

against Black political advancement combined with the get-tough-on-crime

politics of the Reagan and succeeding administrations.(204) If vague loitering

laws are upheld as constitutional it would pull out one more thread from the

rapidly unraveling quilt of constitutional safeguards against police abuse

implemented during a bygone era.

In short, the political process required for political process theory to

support the ordinance simply does not exist. There is no secure means for

determining Black citizens' opinions about aggressive policing, let alone a

democratic process for implementing them. It is therefore highly presumptuous

to claim that inner-city residents have voluntarily relinquished their civil

liberties in exchange for safer streets. Given the political vulnerability of

Blacks and persistent bias against them by the police; given the damaging

social meaning of order-maintenance policing; and given the danger of

arguments advocating further deprivation of Black citizens' freedoms, those

who use racial politics to defend weakening rights should bear a heavy burden

of proof. They have failed to make their case.

V. CONCLUSION: SACRIFICING BLACK FREEDOMS FOR THE PUBLIC GOOD

The Chicago gang-loitering ordinance can be seen as a state-sponsored

experiment that tests the broken windows hypothesis in inner-city communities

using an especially broad grant of police power. This brand of community

policing is part of a broader practice of experimenting with solutions to

social problems at the expense of Black citizens' liberties. Protecting white

people's liberties, on the other hand, usually takes precedence over efforts

to institute substantive racial equality.(205) Arguments that white Americans

should relinquish a piece of their liberty for the sake of creating a more

egalitarian society are renounced as reverse discrimination. At the same time,

proposals that restrict Black Americans' freedoms to improve public welfare

span the arenas of crime control, welfare reform, reproductive health policy,

and child protection.

I have documented elsewhere the proliferation of policies that seek to

influence Black women's reproductive decision making based on the misguided

premise that decreasing Black fertility can achieve positive social

objectives.(206) States are experimenting with so-called family caps to see if

they deter welfare mothers from having more babies.(207) A major newspaper

proposed experimenting with incentives to use the long-acting contraceptive

Norplant to see if they would reduce Black poverty.(208) Prosecutors have

charged Black mothers with fetal crimes to see if it will deter crack use

during pregnancy.(209) New York City recently extended the broken windows

philosophy to its child protection policy, implementing a campaign of

arresting primarily Black and Latina mothers for misdemeanor child

endangerment on the theory that it will deter more serious child abuse.(210)

The Constitution places limits on the government's ability to conduct social

experiments that sacrifice minority freedoms to enhance the welfare of the

majority.(211) Without this restraint, the most powerful members of society

would freely tinker with social programs designed to improve their own welfare

but burden only minority groups. As Paul Butler notes about the

disproportionate imprisonment of Blacks for drug offenses, "the luxury of

maintaining a failed experiment in public policy can be appreciated only by

those who do not bear the brunt of the failure."(212)

Whether or not the gang-loitering ordinance was approved by Black residents,

its enactment depended on confining its deprivation of liberty to minority

communities. It is a perfect example of the mechanism that perpetuates a

criminal justice system that brutally punishes Blacks while preserving white

Americans' civil liberties. The criminal law has resolved the tension between

liberty and order by protecting the freedoms of white citizens while enforcing

order against Blacks. David Cole argues that the criminal justice system

affirmatively exploits this inequality: "[a]bsent race and class disparities,

the privileged among us could not enjoy as much constitutional protection of

our liberties as we do; and without those disparities, we could not afford the

policy of mass incarceration we have pursued over the past two decades."(213)

The gang-loitering ordinance that targets Chicago's minority youth similarly

exploits America's racial divide, continuing to "sidestep[] the difficult

question of how much constitutional protection we could afford if we were

willing to ensure that it was enjoyed equally by all people."(214) White

citizens expect police to protect their neighborhoods from crime without

infringing their freedom to travel on public streets or to be safe from arrest

because of the way they look. Black citizens deserve no less.

There is no consensus among Black scholars, politicians, or inner-city

residents about the law enforcement policies that will best serve Black

people's interests. Yet it remains possible to evaluate these policies based

on whether they further racial subordination or help to eradicate it. This

decision is essentially a moral rather than a democratic one.(215) Scholars

who advocate expanding police authority over Black communities have gravely

underestimated the abiding antagonism between law enforcement and Blacks in

America. These social norm theorists have misjudged the social meaning of

aggressive policing and the way it influences racialized norms of criminal

justice. Contrary to the prevailing faith in the positive influence of

order-maintenance policing, this strategy--especially vague loitering

laws--reinforces stereotypes that portray Blacks as lawless and legitimate

police harassment in Black communities. The racism that pervades the criminal

justice system demands innovations that will give Blacks greater say in crime

control strategies deployed in their communities. This project requires that

we strengthen constitutional safeguards against race-based police abuse, not

eviscerate them. End --

Endnotes

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