Foreword: race, vagueness, and the social meaning of order-maintenance policing.

• Author: Roberts, Dorothy E.

1. INTRODUCTION

   In June, 1992, the Chicago City Council passed a loitering ordinance that gave police officers exceptionally broad power to disperse any group of two or more people standing in public if the police suspect that the group includes a gang member.(1) Any person who does not promptly obey an order to disperse is subject to arrest and six months in prison. The law's language is deliberately expansive to allow the police to clean up the streets based on their suspicions of gang membership rather than waiting for a crime to take place. During the three years the law was in effect, it yielded arrests of more than 40,000 citizens, most of whom were Black or Latino residents of inner-city neighborhoods.(2) The arrests were halted when the Illinois Supreme Court ruled in City of Chicago v. Morales(3) that the gang-loitering ordinance is unconstitutionally vague. The United States Supreme Court agreed in a six to three decision.(4) The Morales case is one of the Court's "most important law-enforcement rulings in decades"(5) because it bears on the legality of policies recently initiated in many of the nation's cities that expand police authority as a means of maintaining order. Around the same time the Chicago ordinance was passed, for example, New York City implemented a quality-of-life initiative that directs police to aggressively make arrests for petty misdemeanor offenses such as turnstile jumping, panhandling, and public drinking.(6) Officials defend both laws with the theory that by keeping order in the streets police will deter more serious crime. The two policies are distinct in an important respect, however. While New York City's quality-of-life initiative involves arrests for clearly defined criminal offenses, Chicago's ordinance gave the police discretion to define permissible public presence.

   Local policies that delegate to police greater authority to maintain order are sometimes confused with a related innovation called community policing.(7) According to its advocates, community policing is an "organizational strategy" that integrates police departments into the community to make them more responsive to citizens' demands.(8) Although order-maintenance and community-policing programs sometimes overlap, I prefer to keep the two terms separate. Order-maintenance policing policies do not necessarily involve communities in either their design or implementation. Community policing, on the other hand, need not include laws that expand police discretion to maintain order or encourage arrests for minor offenses. Indeed, some types of community policing limit police power and discourage misdemeanor arrests to facilitate interaction between officers and the community.(9)

   Acknowledging the potential for police abuse, the Supreme Court has held in several important decisions that vague loitering laws violate constitutional requirements of due process.(10) Laws that give police a wide net to trap citizens who look dangerous not only fail to give adequate notice to citizens of the nature of offending behavior but also allow police to discriminate against citizens based on personal prejudices. The Morales decision re-affirmed the due process limits on statutory grants of expansive police discretion.

   For the last several decades, conservative commentators have called for a relaxation of the vagueness doctrine as well as procedural restraints on police discretion to permit bolder law enforcement efforts to investigate, punish, and prevent crime.(11) More recently, legal scholars borrowing from sociological theory have argued that the role of social norms in criminal behavior also suggests that it is time to curtail or abandon certain constitutional checks on police power to maintain order.(12) These proponents of order-maintenance policing rely on the "broken windows" hypothesis, originally advanced by James Q. Wilson and George L. Kelling, which posits that eliminating visible signs of neighborhood disorder deters more serious crime.(13) A virtually unanimous chorus of scholars, politicians, and the media has championed policing strategies based on the broken windows theory and credited these strategies with falling crime rates across the nation.(14) Morales invited the Court to reconsider its condemnation of vague loitering laws in light of this trend in law enforcement theory and practice.

   The Morales case was decided without much attention to race. Race did not play a role in either the Illinois Supreme Court's opinion overturning the Chicago ordinance or the United States Supreme Court's affirmance. Yet issues of race are critical to the constitutionality of the gang-loitering law from the perspectives of both its supporters and its opponents. The disproportionate number of Blacks and Latinos arrested under the ordinance alone suggests that race mattered in the passage and enforcement of the ordinance. Racism is also one of the motivating concerns underlying constitutional objections to vague loitering laws like the Chicago ordinance. Ironically, race is also at the center of the strongest argument in favor of upholding the ordinance. Some of the law's defenders argue that Black support for the ordinance demonstrates its efficacy at protecting inner-city communities from crime and outweighs concerns about the violations of citizens' civil liberties.(15)

   Given the predominance of race in the arguments both for and against the gang-loitering ordinance, the debate about its constitutionality should carefully address the relation between this and similar order-maintenance policing measures and Black Americans' political and social status. Is the disproportionate arrest of people of color under the ordinance evidence of racial discrimination, or evidence that the Chicago Police Department is finally starting to protect the city's minority communities against internal disorder? Does the apparent support of many inner-city residents for new policing techniques trump constitutional arguments based on the racial disparity in the arrests? To borrow the terms of the sociological theorists, are the social norms enforced by order-maintenance policing beneficial or detrimental to African Americans given current political conditions?

   In this Foreword, I endorse the new attention paid to the relationship between sociology and criminal law. I argue, however, that some social norm theorists have focused too heavily on questionable evidence that order-maintenance policing has a positive influence on social norms in Black communities while ignoring the disturbing potential for these practices to enforce and magnify racist norms of presumed Black criminality. The Chicago gang-loitering ordinance in particular entrenches the racialized division of Americans into the presumptively lawless whose liberties deserve little protection and the presumptively law-abiding who are entitled to rule over them. This danger is an important reason to preserve the constitutional prohibition against vague delegations of broad police discretion.

   Upholding the Chicago ordinance would have legitimated the already prevalent practice of police harassment of Blacks on city streets. More ominously, it would have reinforced the view that Blacks are potential criminals for whom police surveillance and even arrest are mundane occurrences, not warranting constitutional concern. Morales gave the Court a timely opportunity to shore up its crucial jurisprudence placing constitutional limits on police power. I expose as well the evidentiary, theoretical, and ethical weakness of arguments that use social norm theory to support free-wheeling police tactics targeted against minorities.

2. RACE AND THE PROBLEM WITH VAGUENESS

   The Supreme Court held that the Chicago gang-loitering ordinance violated the due process clause of the Constitution because it was an excessively vague impairment of citizens' personal liberty to move freely on the streets.(16) Although this constitutional flaw can be explained in race-neutral terms, in Chicago it resulted in a particular racial injury; the gang-loitering law disproportionately violated the rights of Black and Latino citizens.(17) One of the main problems with vague statutes is their capacity to further racial injustice in the criminal justice system. Examining the relationship between racial inequality and the vagueness doctrine in the context of Morales helps to illuminate the political basis for this important constitutional shield against police abuse.

   Vague statutes pose two problems: when criminal codes fail to clearly define the offense, citizens may not understand what conduct is prohibited and police are likely to enforce the law in an arbitrary and discriminatory manner.(18) The Chicago law's definition of loitering raised both of these problems. The ordinance directed police officers who observe anyone whom they reasonably believe to be a gang member standing in any public place "with no apparent purpose" with one or more other persons to order the entire group to leave the area.(19) Officers were permitted to arrest anyone who fails to promptly obey the dispersal order.(20) The prohibition against remaining in a place without an "apparent purpose" offers no guidance for determining what behavior an officer might consider illegal. How can someone standing on a Chicago sidewalk predict an observing officer's interpretation of her reason for being there?

   This confusion arises not because the statute's words themselves are ambiguous, but because they literally encompass so many innocent acts. The Illinois court pointed out, for example, that "a person waiting to hail a taxi, resting on a corner during a jog, or stepping into a doorway to evade a rain shower has a perfectly legitimate purpose in all of these scenarios; however, that purpose will rarely be apparent to an observer."(21) The Chicago City Council certainly meant to leave these harmless instances outside the law's reach. The United States...