The wages of antiquated procedural thinking: A critique of Chicago v. Morales

Abstract

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 This part shows that the courts relied primarily on an outdated interpretation of Papachristou v Jacksonville in order to find that the gang loitering ordinance failed a facial challenge.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