THE SUPREME COURT RULING ON BUSTING GANGS
BY Lewis Yablonsky, Ph.D.
12/13/98
Emeritus Professor of Sociology and Criminology, California State
University-Northridge; Author of 16 books including: THE VIOLENT GANG (Macmillan,
l962); GANGSTERS: 50 YEARS OF MADNESS, DRUGS, and DEATH ON THE STREETS OF AMERICA
(New York University Press, l998.); and JUVENILE DELINQUENCY INTO THE 21st CENTURY
(Chicago, Nelson-Hall in press for publication 1999.)
The United Stateís Supreme Court is in the process of reviewing a Chicago anti-loitering
law designed to curb gang activity that raises First Amendment issues of freedom
of assembly and association. In general the law authorizes a police officer who "observes
a person whom he reasonably believes to be a criminal street gang member, loitering
in any public place with one or more other persons, to order the entire group to
move on and to arrest anyone who remains.î Loitering is defined as "to remain
in any one place with no apparent purpose."
The Illinois Supreme Court ruled last year that the Chicago law was unconstitutionally
vague, in failing to give "fair notice" of what conduct was prohibited.
The state court also said the law violated a number of other constitutional rights,
including due process, the right to associate with others, and the "personal
liberty of being able to freely walk the streets."
The anti-loitering ordinance is supported by local neighborhood organizations, the
National League of Cities and the U.S. Conference of Mayors, the National Governorsí
Association, 31 states and the Clinton administration. The Supreme Court decision
will no doubt affect the enforcement of a growing number of injunction laws in cities
around the United States, and especially in Los Angeles.
At the hearings on the law in the Supreme Court on December 9,1998, a majority of
the justices voiced doubts about reinstating the city of Chicagoís Gang Congregation
Ordinance, which was used to arrest more than 42,000 people during the three years
it was in effect. The city's appeal is one of the important civil liberties cases
of this Supreme Court term, questioning at least implicitly whether several Supreme
Court decisions from the 1970s, which sent into eclipse the vagrancy and loitering
laws that were once common in American cities, are still good laws.
At the hearing several justices expressed serious doubts about the Chicago law. Justice
Sandra Day OíConnorís commented ìThere is a concern here for arbitrariness of the
police.î Another significant viewpoint was Justice David H. Souterís comment , "I'm
bothered by the seemingly open-ended possibilities of what is and is not an 'apparent
purpose. Some people with nothing better to do like to sit and watch the cars go
by." On the issue, based on my 45 years of research into the structure and functioning
of gangs, I am in agreement with these and other concerns.
A major issue that is at the core of these laws--is the difficulty of the police,
in the moment of contact, to accurately determine who is in fact a gang member, and
whether or not a group of youths on a corner is in fact a gang. Moreover, apart from
the murky constitutional issues, the laws involve banning interactions between law-abiding
citizens who have not committed any illegal acts.
It is even unfair to known gangsters or gangs who are not committing any illegal
acts but simply want to hang out with their ìhomies.î For example, it enables the
police to order law -abiding youths, including brothers or cousins, to be legally
banned from talking to each other or watching the girls (or boys) go by on a street
corner. These ìhanging-outî activities for youths are widely accepted cultural aspects
of American society.
Injunction and loitering laws are based on the erroneous assumption that gangs are
coherent, cohesive entities, and that gang ìmembershipî is a clearly defined fact
that can easily be identified by police officers. Based on my extensive research
into violent gangs on the streets and in prisons I have concluded that gangs are
ìnear-groupsî with core and peripheral ìmembersî. Also, appearances can be misleading.
Dressing up like a gangster, a style found in many clothing advertisements, does
not make a youth a gangster anymore than the ìheroin-lookî perfume ads identifies
skinny teenage models as heroin addicts.
It is necessary to accurately diagnose a social pathology in order to prescribe a
viable solution to the problem. What is a gang? In my research I have identified
three basic types of gangs: (1) social gangs, involving youths who simply hang out
together and participate for the most part in legal activities; (2) delinquent gangs
involving small cohesive groups of youths whose primary goal is theft for monetary
gain; and (3) violent gangs.
This latter type of gang is ostensibly the type of gang the injunctions laws are
meant to control. In appearance, most participants in these different gangs look
alike with regard to their speech patterns and dress.Before they commit a criminal
act, how do the police identify and separate the good kids from the ìdelinquentsî
?
In most criminal and deviant groups, including violent criminal gangs, the definition
of who is a member, the norms of the group, and the expected behavior of participants
in the group is murkier and less clear than in law-abiding groups. For these reasons,
a youth erroneously identified as a gangster and arrested without criminal cause
has had his constitutional protections violated.
These laws can also backfire. Labelling an innocent youth as a criminal gangster
and forcing him in the judicial system through a debatable loitering or injunction
arrest can have dire consequences on his life. Labelling, often results in a self-fulfilling
prophecy. Arresting and enmeshing a relatively innocent youth in the criminal justice
system can help to create a core violent gangster. In my role as an expert-witness
in gang cases I have observed the police and prosecutors label non-gang members as
gangsters, convict them, and send them to prison for unwarranted lengthy sentences.
Laws and law enforcement are not the only approaches for curbing gang violence. There
are many proven treatment approaches for controlling illegal gang activities. Among
these useful interventions is the ìtherapeutic communityî approach that utilizes
ex-gangsters as role-models to work with wannabe gangsters. There are also a variety
of effective after-school projects, some involving athletic activities, that can
help ameliorate the violent gang problem. These more humanistic anti-gang methods
are, in the long-run, more effective in redirecting our youths from illegal activities
than debatable laws which can and often do violate their civil rights.
The laws, now under consideration by the Supreme Court facilitate legal action against
youths who are innocent of criminal behavior. The ratification of gang loitering
and injunction laws by the United States Supreme Court can significantly escalate
the already clogged criminal justice system, by increasing the growing number of
youths in the courts, and prisoners in custodial institutions.
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