Juvenile curfews and gang violence: Exiled on main street

Harvard Law Review

Volumn 107, Issue 7, 1994, Pages 1693-1709

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EID: 0001584901     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: 10.2307/1341824     Document Type: Article

References (145)

1. Richard T. Ford, The Boundaries of Race: Political Geography in Legal Analysis, 107 HARV. L. REV. (forthcoming June, 1994).
2. See MARC MAUER, THE SENTENCING PROJECT, YOUNG BLACK MEN AND THE CRIMINAL JUSTICE SYSTEM 3 (1990).
3. Juvenile street gangs can be defined as "age- and sex-segregated cliques of young persons, sharing a certain group identity and occupying particular geographic territory, often in opposition to real or imagined 'enemies,' and who frequently behave in a destructive, disruptive, or illegal manner." Scott Cummings & Daniel J. Monti, Preface to GANGS vii (Scott Cummings & Daniel J. Monti eds., 1993). In addition, many gangs engage in activities for economic profit. This working definition is based on traits commonly associated with youth gangs and allows for wide variations in behavior among different gangs. See Joan Moore, Gangs and Gang Violence: What We Know and What We Don't, in GANG VIOLENCE PREVENTION 23, 26-28 (Alfredo Gonzalez, Shirley Better & Ralph Dawson eds., 1990) (describing variation in gang activity over time, by location and across cultures).
4. Juvenile street gangs can be defined as "age- and sex-segregated cliques of young persons, sharing a certain group identity and occupying particular geographic territory, often in opposition to real or imagined 'enemies,' and who frequently behave in a destructive, disruptive, or illegal manner." Scott Cummings & Daniel J. Monti, Preface to GANGS vii (Scott Cummings & Daniel J. Monti eds., 1993). In addition, many gangs engage in activities for economic profit. This working definition is based on traits commonly associated with youth gangs and allows for wide variations in behavior among different gangs. See Joan Moore, Gangs and Gang Violence: What We Know and What We Don't, in GANG VIOLENCE PREVENTION 23, 26-28 (Alfredo Gonzalez, Shirley Better & Ralph Dawson eds., 1990) (describing variation in gang activity over time, by location and across cultures).
5. This Note focuses on inner-city communities, which feel the gang problem acutely; but gang activity is not faced exclusively by the urban poor. See Daniel J. Monti, Gangs in More and Less-Settled Communities, in GANGS, supra note 3, at 219, 249.
6. One ex-gang member explains that gang membership "taught me that I like the feeling of fighting for something. . . . [T]o stand in my turf that I fought to make safe was the climax of banging for me." KODY SCOTT, MONSTER 278 (1993).
7. See Elliott Currie, Comments on the Social and Economic Context of Violence in Minority Communities, in GANG VIOLENCE PREVENTION, supra note 3, at 9, 21.
8. As a juvenile detention camp officer and former gang member explained: What do you think happened when that kid there first began to seek out his masculinity? What happened when he first tried to assert himself? If he lived in any other community but Watts there would be legitimate ways to express those feelings. Little League. Pop Warner. . . . And that's when the gang comes along, and the gang offers everything those legitimate organizations do. The gang serves emotional needs. You feel wanted. You feel welcome. You feel important. And there is discipline and there are rules. LÉON BING, DO OR DIE 12 (1991).
9. See Felix Padilla, The Working Gang, in GANGS, supra note 3, at 173, 179; see also FRANCES F. PIVEN & RICHARD A. CLOWARD, POOR PEOPLE'S MOVEMENTS 11 (1979) (explaining that the loss of economic opportunity results in a weakening of stabilizing social frameworks and can lead to crime and other signs of social breakdown).
10. See Felix Padilla, The Working Gang, in GANGS, supra note 3, at 173, 179; see also FRANCES F. PIVEN & RICHARD A. CLOWARD, POOR PEOPLE'S MOVEMENTS 11 (1979) (explaining that the loss of economic opportunity results in a weakening of stabilizing social frameworks and can lead to crime and other signs of social breakdown).
11. Despite news-media images of gangs, it remains important not to assume that all gangs and all gang members are violent or criminal. See Moore, supra note 3, at 28-32. Nevertheless, the violence stemming from some gang activity cannot be denied.
12. In 1988, the California legislature found that over 600 criminal gangs were operating in that state alone and declared that "California is in a state of crisis which has been caused by violent street gangs whose members . . . terrorize . . . the peaceful citizens of their neighborhoods." California Street Terrorism Enforcement and Prevention Act, 1988, CAL. PENAL CODE § 186.21 (West 1988 & Supp. 1994). Gang battles have disrupted inner city schools. See Paul D. Murphy, Note, Restricting Gang Clothing in Public Schools: Does a Dress Code Violate a Student's Right of Free Expression?, 64 S. CAL. L. REV. 1321, 1324-26 (1991). Children growing up under these conditions show signs of post-traumatic stress disorder like that of children in war-torn cities like Beirut or Sarajevo. See Alfredo Gonzalez, Shirley Better & Ralph Dawson, Introduction to GANG VIOLENCE PREVENTION, supra note 3, at 5, 6; Aileen M. Bigelow, In the Ghetto: The State's Duty to Protect Inner-City Children from Violence, 7 NOTRE DAME J.L. ETHICS & PUB. POL'Y 533, 545-47 (1993).
13. In 1988, the California legislature found that over 600 criminal gangs were operating in that state alone and declared that "California is in a state of crisis which has been caused by violent street gangs whose members . . . terrorize . . . the peaceful citizens of their neighborhoods." California Street Terrorism Enforcement and Prevention Act, 1988, CAL. PENAL CODE § 186.21 (West 1988 & Supp. 1994). Gang battles have disrupted inner city schools. See Paul D. Murphy, Note, Restricting Gang Clothing in Public Schools: Does a Dress Code Violate a Student's Right of Free Expression?, 64 S. CAL. L. REV. 1321, 1324-26 (1991). Children growing up under these conditions show signs of post-traumatic stress disorder like that of children in war-torn cities like Beirut or Sarajevo. See Alfredo Gonzalez, Shirley Better & Ralph Dawson, Introduction to GANG VIOLENCE PREVENTION, supra note 3, at 5, 6; Aileen M. Bigelow, In the Ghetto: The State's Duty to Protect Inner-City Children from Violence, 7 NOTRE DAME J.L. ETHICS & PUB. POL'Y 533, 545-47 (1993).
14. In 1988, the California legislature found that over 600 criminal gangs were operating in that state alone and declared that "California is in a state of crisis which has been caused by violent street gangs whose members . . . terrorize . . . the peaceful citizens of their neighborhoods." California Street Terrorism Enforcement and Prevention Act, 1988, CAL. PENAL CODE § 186.21 (West 1988 & Supp. 1994). Gang battles have disrupted inner city schools. See Paul D. Murphy, Note, Restricting Gang Clothing in Public Schools: Does a Dress Code Violate a Student's Right of Free Expression?, 64 S. CAL. L. REV. 1321, 1324-26 (1991). Children growing up under these conditions show signs of post-traumatic stress disorder like that of children in war-torn cities like Beirut or Sarajevo. See Alfredo Gonzalez, Shirley Better & Ralph Dawson, Introduction to GANG VIOLENCE PREVENTION, supra note 3, at 5, 6; Aileen M. Bigelow, In the Ghetto: The State's Duty to Protect Inner-City Children from Violence, 7 NOTRE DAME J.L. ETHICS & PUB. POL'Y 533, 545-47 (1993).
15. The most recent challenge to a juvenile curfew ordinance, and one of the few heard in federal court, was Qutb v. Strauss, 11 F.3d 488 (5th Cir. 1993), petition for cert, filed sub nom. Qutb v. Bartlett, 62 U.S.L.W. 3693 (U.S. Apr. 4, 1994) (No. 93-1571), which unsuccessfully attacked a. new curfew ordinance in Dallas, Texas. See id. at 496
16. All Things Considered: Hartford Mandates Curfew (NPR radio broadcast, Oct. 12, 1993) [hereinafter Hartford Mandates Curfew] (statement of Roberto Rivera).
17. This Note offers and uses these terms loosely to generalize conceptual viewpoints. These categories blur many differences among theorists, but they still provide a distinct and useful framework for evaluating juvenile curfews.
18. See, e.g., Doris S. Wong & Peter S. Canellos, Police Vow to Continue Searches, BOSTON GLOBE, Aug. 31, 1989, at 31, 35.
19. See Adrienne L. Meiring, Note, Walking the Constitutional Beat: Fourth Amendment Implications of Police Use of Saturation Patrols and Roadblocks, 54 OHIO ST. L.J. 497, 499-506 (1993).
20. See Margaret Russell, Entering Great America: Reflections on Race and the Consequence of Progressive Legal Theory and Practice, 43 HASTINGS L.J. 749, 765-66 (1992).
21. See Robert A. Destro, Gangs and Civil Rights, in GANGS, supra note 3, at 277, 284-85.
22. See S. Randall Humm, Comment, Criminalizing Poor Parenting Skills as a Means to Contain Violence By and Against Children, 139 U. PA. L. REV. 1123, 1130-33 (1991).
23. See CAL. PENAL CODE § 186.20-.27 (West 1988 & Supp, 1994).
24. See Susan L. Burrell, Gang Evidence: Issues for Criminal Defense, 30 SANTA CLARA L. REV. 739, 744 & n. 19 (1990).
25. See Patrick Jackson & Cary Rudman, Moral Panic and the Response to Gangs in California, in GANGS, supra note 3, at 257, 261-64.
26. See Burrell, supra note 20, at 743-44.
27. See Alternatives to Street Gangs: Urban Services Restoration Corps and Neighborhood Academies, Hearings Before the Joint Committee on Organized Crime and Gang Violence of the California Legislature 2-4, 11-15 (Mar. 31, 1989).
28. See Peer Counseling: A Proposal to Counter Street Gang and Drug Influence, Hearing Before the Joint Committee on Organized Crime and Gang Violence of the California Legislature 2-5, 20-21 (Mar. 27, 1989).
29. See Jodi Wilgoren, O.C. Groups Fight Gangs by Offering Alternatives, L.A. TIMES (Orange County Edition), Dec. 2, 1993, at A1.
30. See Patricia L. Baden & Peter Leyden, Can Cops and Gangs Work Together?, STAR TRIB. (Minneapolis, Minnesota), May 16, 1992, at 1A.
31. See Murphy, supra note 10, at 1326-29.
32. See Lisa A. Kainec, Curbing Gang Related Violence in America: Do Gang Members Have a Constitutional Right to Loiter on Our Streets?, 43 CASE W. RES. L. REV. 651, 660-63 (1993).
33. Curfews have long been used to control juvenile crime in the United States, See Note, Curfew Ordinances and the Control of Nocturnal Juvenile Crime, 107 U. PA. L. REV. 66, 66 n.5 (1958).
34. See Joyce Price, Curfew Laws Sweep Kids Off Streets, but Police Wonder "Does it Work?" WASH. TIMES, Dec. 11, 1990, at A1.
35. See Neela Banerjee, Curfews Spread, But Effects Are Still Not Clear, WALL ST. J., Mar. 4, 1994, at B1.
36. See Peter L. Scherr, The Juvenile Curfew Ordinance: In Search of a New Standard of Review, 41 WASH. U. J. URB. & CONTEMP. L. 163, 163 n.1 (1992).
37. See Jane Kwiatowski, Youth Curfew Poses Problems, BUFFALO NEWS, Dec. 7, 1993, at 1.
38. See American Survey: After Dark, ECONOMIST, Mar. 5, 1994, at 25, 25.
39. See Nancy Watzman, The Curfew Revival Gains Momentum, GOVERNING, Feb. 1994, at 20, 20.
40. See id. at 20-21. This list of cities is not intended to be exhaustive.
41. See Sabin Russell, Black Clergy Urges Curfew for Youths, S.F. CHRON. (San Francisco), Nov. 22, 1993, at A22.
42. See American Survey: After Dark, supra note 34, at 25.
43. See Clara Germani, Cities Try Curfews to Curb Crime, CHRISTIAN SCIENCE MONITOR, Mar. 14, 1991, at 15, 15.
44. See Waters v. Barry, 711 F. Supp. 1125, 1127-28 (D.D.C. 1989).
45. See Qutb v. Strauss, 11 F.3d 488, 496 (5th Cir. 1993), petition for cert, filed sub nom. Qutb v. Bartlett, 62 U.S.L.W. 3693 (U.S. Apr. 4, 1994) (No. 93-1571).
46. 43 The example of Hartford provides an anecdotal illustration of how curfews operate in one community and is not meant to imply that similar results are observed wherever curfews are used. Nevertheless, Hartford provides a good example as an average-sized city with a serious gang problem that the city has made active attempts to combat.
47. 43 The example of Hartford provides an anecdotal illustration of how curfews operate in one community and is not meant to imply that similar results are observed wherever curfews are used. Nevertheless, Hartford provides a good example as an average-sized city with a serious gang problem that the city has made active attempts to combat.
48. See Andrew Julien & Maria Alvarez, Bullets Hit Bystanders in Rash of Gang Shootings, HARTFORD COURANT, Aug. 19, 1993, at B1.
49. See Maria Alvarez & Andrew Julien, Hartford Sets Curfew to Fight Gang Violence, HARTFORD COURANT, Sept. 9, 1993, at A1, A5.
50. See Andrew Julien & Maria Alvarez, Officials Work to Curb Violence in Hartford, State-wide, HARTFORD COURANT, Sept. 10, 1993, at A1. Hartford's curfew ordinance had been on the books but unenforced since 1977. See id. at A6.
51. See Andrew Julien & Dana Tofig, Curfew Age Raised, HARTFORD COURANT, Sept. 17, 1993 at A1. Coupled with the curfew, Hartford police inaugurated "Operation Liberty" to bolster law enforcement presence in troubled areas of the city and instituted an aggressive stop and search policy with the help of state troopers. See Matthew Kauffman, Fighting the Gangs by Any Means, HARTFORD COURANT, Sept. 30, 1993 at A1.
52. See Andrew Julien & Dana Tofig, Curfew Age Raised, HARTFORD COURANT, Sept. 17, 1993 at A1. Coupled with the curfew, Hartford police inaugurated "Operation Liberty" to bolster law enforcement presence in troubled areas of the city and instituted an aggressive stop and search policy with the help of state troopers. See Matthew Kauffman, Fighting the Gangs by Any Means, HARTFORD COURANT, Sept. 30, 1993 at A1.
53. See Hartford Mandates Curfew, supra note 12.
54. However, the violence has not stopped completely. See Ellen Nakashima, Gang Violence Led to Doubling of Homicide Rate, HARTFORD COURANT, Jan. 2, 1994, at A1.
55. Kauffman, supra note 47, at A8.
56. Julien & Alvarez, supra note 46, at A1 (quoting a Hartford police officer).
57. Hartford Mandates Curfew, supra note 12 (interview with a journalist).
58. See Kauffman, supra note 47, at A8.
59. See id. at A8.
60. Hartford Mandates Curfew, supra note 12 (statement of Michael Menatian, community organizer).
61. See generally Note, Juvenile Curfew Ordinances and the Constitution, 76 MICH. L. REV. 109, 132-35 (1977) (reviewing the general purposes of curfews).
62. See Note, supra note 29, at 93-94.
63. See supra note 42 and accompanying text.
64. See Note, supra note 56, at 109 ("Regardless of its actual effect on the crime rate, the new curfew was psychologically effective as a visible sign of public resolve to combat crime.").
65. As one commentator has remarked: [A]lthough curfews are typically envisioned to affect only lawless gangs of roaming teenagers, the ordinances also hold the threat of legal sanctions over a child who wishes simply to walk home from a friend's house, attend a late movie or show, or participate in any number of social activities that are harmful to no one and are beneficial to the child's development. Note, Assessing the Scope of Minors' Fundamental Rights: Juvenile Curfews and the Constitution, 97 HARV. L. REV. 1163, 1174 (1984).
66. See American Survey: After Dark, supra note 34, at 25.
67. See Martin P. Hogan, Note, Juvenile Curfews - the D.C. Council's "Quick Fix" for the Drug Crisis, 1 GEO. MASON. CIV. RTS. L.J. 313, 329 (1990).
68. Curfews may also be ineffective if their only sanctions are to return juveniles to homes in which parents are absent or do not actively supervise the children's behavior.
69. The particular danger exists that the police will use curfew ordinances as a pretext to arrest those suspected of committing crimes other than violating a curfew if the police lack probable cause for the arrest. See Note, supra note 56, at 150.
70. See Russell, supra note 16, at 764-66.
71. The process of citizens' lobbying for specific measures like curfews to respond to gang violence can, however, bring community members closer together, as was displayed in Hartford. See Maria Alvarez, Neighbors Pray for Peace, HARTFORD COURANT, Sept. 4, 1993, at B1, B7; Alvarez & Julien, supra note 45, at A1; Dana Tofig, Marchers Take Hope to Streets, HARTFORD COURANT, Sept. 24, 1993, at C1, C11.
72. The process of citizens' lobbying for specific measures like curfews to respond to gang violence can, however, bring community members closer together, as was displayed in Hartford. See Maria Alvarez, Neighbors Pray for Peace, HARTFORD COURANT, Sept. 4, 1993, at B1, B7; Alvarez & Julien, supra note 45, at A1; Dana Tofig, Marchers Take Hope to Streets, HARTFORD COURANT, Sept. 24, 1993, at C1, C11.
73. The process of citizens' lobbying for specific measures like curfews to respond to gang violence can, however, bring community members closer together, as was displayed in Hartford. See Maria Alvarez, Neighbors Pray for Peace, HARTFORD COURANT, Sept. 4, 1993, at B1, B7; Alvarez & Julien, supra note 45, at A1; Dana Tofig, Marchers Take Hope to Streets, HARTFORD COURANT, Sept. 24, 1993, at C1, C11.
74. See Note, supra note 29, at 97; Note, supra note 56, at 135-36.
75. See Note, supra note 60, at 1179 ("The child's need to identify with a loving and authoritative caretaker suggests that if the child's rights are to be limited, the child is entitled to have her activities directed by her parents rather than by political institutions." (footnote omitted)).
76. One commentator has claimed that "[c]hildren subject to curfews are denied, at least in part, the opportunities for personal and intellectual growth offered by association with their peers." Id. at 1174.
77. See Watzman, supra note 35, at 21.
78. See RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 190-92, 269-70 (1977). Utilitarian trade-offs must be particularly resisted during times of perceived crisis. As Justice Marshall wrote regarding the war on drugs, "[h]istory teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure." Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602, 635 (1989) (Marshall, J., dissenting).
79. See RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 190-92, 269-70 (1977). Utilitarian trade-offs must be particularly resisted during times of perceived crisis. As Justice Marshall wrote regarding the war on drugs, "[h]istory teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure." Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602, 635 (1989) (Marshall, J., dissenting).
80. See West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943); JOHN H. ELY, DEMOCRACY AND DISTRUST 102-04 (1980).
81. See West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943); JOHN H. ELY, DEMOCRACY AND DISTRUST 102-04 (1980).
82. See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
83. "The right to walk the streets, or to meet publicly with one's friends for a noble purpose or for no purpose at all - and to do so whenever one pleases - is an integral component of life in a free and ordered society." Waters v. Barry, 711 F. Supp. 1125, 1134 (D.D.C. 1989) (citing Papachristou v. City of Jacksonville, 405 U.S. 156, 164 (1972)).
84. Even courts that have upheld curfews have acknowledged that fundamental rights are involved. See, e.g., Qutb v. Strauss, 11 F.3d 488, 492 (5th Cir. 1993), petition for cert, filed sub nom. Qutb v. Bartlett, 62 U.S.L.W. 3693 (U.S. Apr. 4, 1994) (No. 93-1571).
85. In particular, curfews have been challenged under the First Amendment's protection of association and assembly, see Susan M. Horowitz, A Search for Constitutional Standards: Judicial Review of Juvenile Curfew Ordinances, 24 COLUM. J.L. & SOC. PROBS. 381, 393-96 (1991);
86. under the substantive protections of the Due Process Clause of the Fourteenth Amendment to freedom of travel and movement, see Bykofsky v. Borough of Middletown, 429 U.S. 964, 964 (1976) (Marshall, J., dissenting from denial of certiorari);
87. under the rights of privacy of both children and parents, see Martin E. Mooney, Note, Assessing the Constitutional Validity of Juvenile Curfew Statutes, 52 NOTRE DAME LAW. 858, 861-62 (1977);
88. and under the Fourth Amendment's requirement of reasonable suspicion or probable cause to justify a stop or arrest, see Waters, 711 F. Supp. at 1137-38. The above claims have also been coupled with vagueness and overbreadth challenges. See Johnson v. City of Opelousas, 658 F.2d 1065, 1071-74 (5th Cir. 1981); Bykofsky v. Borough of Middletown, 401 F. Supp. 1242, 1249-52 (M.D.Pa. 1975), cert, denied, 429 U.S. 964 (1976).
89. Finally, the differential treatment of juveniles by curfews has also been questioned under the Equal Protection Clause of the Fifth Amendment. See Waters, 711 F. Supp. at 1138-40.
90. See Note, supra note 56, at 111 & n.11, 147-52.
91. See Charles R. Tremper, Respect for the Human Dignity of Minors: What the Constitution Requires, 39 SYRACUSE L. REV. 1293, 1319-20 (1988).
92. These concerns are most pronounced if those whose freedoms are restricted oppose the curfews, but even if such individuals support curfews, dangers may exist. See infra p. 1707.
93. See Mooney, supra note 75, at 878-81. Constitutional review of individual curfew ordinances turns on consideration of the importance of the asserted rights, the level of infringement of those rights, the depth of the competing community interests, and the availability of less restrictive alternative policies. Curfew ordinances have been both upheld and struck down. Compare Qutb, 11 F.3d at 496 (upholding curfew ordinance), Bykofsky, 401 F. Supp. at 1266 (same), People ex rel. J.M., 768 P.2d 219, 224 (Colo. 1989) (same), and City of Panora v. Simmons, 445 N.W.2d 363, 370 (Iowa 1989) (same) with Johnson, 658 F.2d at 1074 (striking down curfew ordinance), Waters, 711 F. Supp. at 1137 (same), and S.W. v. State, 431 So.2d 339, 341 (Fla. Dist. Ct. App. 1983) (same). The United States Supreme Court has yet to hear a juvenile curfew case.
94. See Mooney, supra note 75, at 878-81. Constitutional review of individual curfew ordinances turns on consideration of the importance of the asserted rights, the level of infringement of those rights, the depth of the competing community interests, and the availability of less restrictive alternative policies. Curfew ordinances have been both upheld and struck down. Compare Qutb, 11 F.3d at 496 (upholding curfew ordinance), Bykofsky, 401 F. Supp. at 1266 (same), People ex rel. J.M., 768 P.2d 219, 224 (Colo. 1989) (same), and City of Panora v. Simmons, 445 N.W.2d 363, 370 (Iowa 1989) (same) with Johnson, 658 F.2d at 1074 (striking down curfew ordinance), Waters, 711 F. Supp. at 1137 (same), and S.W. v. State, 431 So.2d 339, 341 (Fla. Dist. Ct. App. 1983) (same). The United States Supreme Court has yet to hear a juvenile curfew case.
95. See Mooney, supra note 75, at 878-81. Constitutional review of individual curfew ordinances turns on consideration of the importance of the asserted rights, the level of infringement of those rights, the depth of the competing community interests, and the availability of less restrictive alternative policies. Curfew ordinances have been both upheld and struck down. Compare Qutb, 11 F.3d at 496 (upholding curfew ordinance), Bykofsky, 401 F. Supp. at 1266 (same), People ex rel. J.M., 768 P.2d 219, 224 (Colo. 1989) (same), and City of Panora v. Simmons, 445 N.W.2d 363, 370 (Iowa 1989) (same) with Johnson, 658 F.2d at 1074 (striking down curfew ordinance), Waters, 711 F. Supp. at 1137 (same), and S.W. v. State, 431 So.2d 339, 341 (Fla. Dist. Ct. App. 1983) (same). The United States Supreme Court has yet to hear a juvenile curfew case.
96. Cf. Nadine Strossen, The Fourth Amendment in the Balance: Accurately Setting the Scales Through the Least Intrusive Alternative Analysis, 63 N.Y.U. L. REV. 1173, 1185-86, 1210-12 (1988) (highlighting the importance of least restrictive alternative analysis if fundamental rights are at stake).
97. See MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE 179-81 (1982).
98. See MARY ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE 14-15, 105 (1991).
99. See Frank I. Michelman, Law's Republic, 97 YALE L.J. 1493, 1495-96, 1505 (1988); Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539, 1551 (1988). The label "civic republican" is often used to describe those whose analytical concern is collective deliberation and participation. Civic republicans can be seen as communitarian in the sense that they focus on the community or collective, but they place special emphasis on the creation of community through collective self-governance.
100. See Frank I. Michelman, Law's Republic, 97 YALE L.J. 1493, 1495-96, 1505 (1988); Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539, 1551 (1988). The label "civic republican" is often used to describe those whose analytical concern is collective deliberation and participation. Civic republicans can be seen as communitarian in the sense that they focus on the community or collective, but they place special emphasis on the creation of community through collective self-governance.
101. See SANDEL, supra note 81, at 150.
102. See Michelman, supra note 83, at 1502; Sunstein, supra note 83, at 1547-58 (describing liberal republicanism and the achievement of political freedom through individual participation in collective government).
103. See Michelman, supra note 83, at 1531-32.
104. As Michael Sandel writes, "we can know a good in common that we cannot know alone." SANDEL, supra note 81, at 183.
105. See, e.g., Randall Kennedy, The State, Criminal Law, and Purposeful Racial Discrimination, 107 HARV. L. REV. 1255, 1260 n.20 (1994). In a similar vein, another commentator argues: [P]erhaps we as Americans should begin to ask ourselves if the protection of individual constitutional rights should at some point be subordinated to the protection of our cities and communities. For if the communities we call "home" are destroyed, the America that the Constitution is meant to protect and preserve may well cease to exist. Kainec, supra note 28, at 668.
106. See, e.g., Randall Kennedy, The State, Criminal Law, and Purposeful Racial Discrimination, 107 HARV. L. REV. 1255, 1260 n.20 (1994). In a similar vein, another commentator argues: [P]erhaps we as Americans should begin to ask ourselves if the protection of individual constitutional rights should at some point be subordinated to the protection of our cities and communities. For if the communities we call "home" are destroyed, the America that the Constitution is meant to protect and preserve may well cease to exist. Kainec, supra note 28, at 668.
107. See Kennedy, supra note 88, at 1259-60 (maintaining that criminal law enforcement is a "public good" and stressing the need to sympathize with the victims and potential victims of crime even if that means "narrowing . . . the liberties that individuals currently enjoy").
108. See, e.g., Bykofsky v. Borough of Middletown, 401 F. Supp. 1242, 1256-57 (M.D.Pa. 1975), cert, denied, 425 U.S. 964 (1976).
109. See Note, supra note 60, at 1174.
110. See Cass R. Sunstein, Legal Interference with Private Preferences, 53 U. CHI. L. REV. 1129, 1143 (1986).
111. Professor Gerald Frug writes generally about the importance to cities of decentralizing power. See Gerald E. Frug, The City as a Legal Concept, 93 HARV. L. REV. 1059, 1068-73 (1980). One problem is that both the neighborhood and the city may view the decision about whether to impose a curfew as an important locus for municipal decisionmaking. A communitarian response would probably attempt to invest the unit most affected by gang activity - whether a neighborhood or a city as a whole - with control over the curfew decision.
112. Note that civil libertarianism highlights similar concerns based on a different rationale. See supra pp. 1701-02.
113. See Michelman, supra note 83, at 1532 & n.162. But see Scherr, supra note 32, at 191 (calling only for an intermediate level of scrutiny for juvenile curfews).
114. See Kathleen M. Sullivan, Rainbow Republicanism, 97 YALE L.J. 1713, 1718 (1988).
115. Some commentators contend that communitarian justifications for rights generally slide back into libertarian theories. See Derrick Bell & Preeta Bansal, The Republican Revival and Racial Politics, 97 YALE L.J. 1609, 1614, 1616 (1988); Sullivan, supra note 96, at 1722-23.
116. Some commentators contend that communitarian justifications for rights generally slide back into libertarian theories. See Derrick Bell & Preeta Bansal, The Republican Revival and Racial Politics, 97 YALE L.J. 1609, 1614, 1616 (1988); Sullivan, supra note 96, at 1722-23.
117. See Bell & Bansal, supra note 97, at 1619-21.
118. See, e.g., Richard Delgado, Recasting the American Race Problem, 79 CAL. L. REV. 1389, 1393-96 (1991) (reviewing ROY L. BROOKS, RETHINKING THE AMERICAN RACE PROBLEM (1990)). Margaret Russell writes that racism is "the overarching affliction of the American legal system." Russell, supra note 16, at 763.
119. See, e.g., Richard Delgado, Recasting the American Race Problem, 79 CAL. L. REV. 1389, 1393-96 (1991) (reviewing ROY L. BROOKS, RETHINKING THE AMERICAN RACE PROBLEM (1990)). Margaret Russell writes that racism is "the overarching affliction of the American legal system." Russell, supra note 16, at 763.
120. See, e.g., Richard Delgado, Recasting the American Race Problem, 79 CAL. L. REV. 1389, 1393-96 (1991) (reviewing ROY L. BROOKS, RETHINKING THE AMERICAN RACE PROBLEM (1990)). Margaret Russell writes that racism is "the overarching affliction of the American legal system." Russell, supra note 16, at 763.
121. See Kimberlé W. Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331, 1336 (1988).
122. See Russell, supra note 16, at 762-63.
123. See Dorothy E. Roberts, Crime, Race, and Reproduction, 67 TUL. L. REV. 1945, 1954-61 (1993) (citing the "War on Drugs," the criminalization of prenatal drug use, the selection of crimes for severe punishment, and sentencing as examples of using the criminal law to subjugate blacks).
124. See Crenshaw, supra note 100, at 1344-45.
125. See id. at 1357, 1365; Patricia J. Williams, Alchemical Notes: Reconstructing Ideals from Deconstructed Rights, 22 HARV. C.R.-C.L. L. REV. 401, 405-06, 410-11 (1987).
126. See id. at 1357, 1365; Patricia J. Williams, Alchemical Notes: Reconstructing Ideals from Deconstructed Rights, 22 HARV. C.R.-C.L. L. REV. 401, 405-06, 410-11 (1987).
127. See Bell & Bansal, supra note 97, at 1610-12.
128. See Regina Austin, "The Black Community," Its Lawbreakers, and a Politics of Identification, 65 S. CAL. L. REV. 1769, 1815-17 (1992).
129. See, e.g., Russell, supra note 16, at 764-66.
130. See Jackson & Rudman, supra note 21, at 271. Despite historical swings in the levels of gang violence in California, for example, "public and political perception is that Southern California is in the midst of an unprecedented gang holocaust." Burrell, supra note 20, at 741.
131. Joan Moore has explained that society's fears - in particular fears about minority youth - drive the reaction: Moral panics build on existing cleavages in the society - cleavages of race and class. In the case of gangs, they build on fear and ignorance of what is happening in the inner city. And they reinforce the convictions of conventional Americans that their moral universe is superior and their fear that this moral universe is under assault. Joan Moore, Gangs, Drugs, and Violence, in GANGS, supra note 3, at 23, 29.
132. See Burrell, supra note 20, at 782 ("[G]ang membership need not be handled as a search and destroy mission. It is a predictable response to life as these young people have experienced it").
133. See, e.g., Jackson & Rudman, supra note 21, at 260-61 (summarizing California's response to the perceived gang crisis).
134. Juvenile curfews were in fact used prior to the Civil War to regulate free blacks and slaves. See Scherr, supra note 32, at 164-65. Stereotypes continue to contribute to the subordination of minority groups. See Crenshaw, supra note 100, at 1371; Roberts, supra note 102, at 1948-50.
135. Professor Regina Austin explains, for example, that some members of the black community may repudiate criminal elements and endorse the "politics of distinction," whereby some blacks distance themselves from those who stigmatize the community and drag down collective progress. Austin, supra note 106, at 1772-73. Although Austin notes that such repudiation is legitimate, it may also divide a community and favor those trying to fit into dominant white society. See id. at 1773.
136. See Frank E. Harper, To Kill the Messenger: The Deflection of Responsibility Through Scapegoating, 8 HARV. BLACKLETTER J. 41, 46-48 (1991). In addition, police might enforce curfews more stringently in minority neighborhoods out of a belief that minorities are more likely to commit crimes. See Roberts, supra note 102, at 1949-50.
137. See Frank E. Harper, To Kill the Messenger: The Deflection of Responsibility Through Scapegoating, 8 HARV. BLACKLETTER J. 41, 46-48 (1991). In addition, police might enforce curfews more stringently in minority neighborhoods out of a belief that minorities are more likely to commit crimes. See Roberts, supra note 102, at 1949-50.
138. As Professor Austin notes, greater surveillance of minority communities leads to "harassment of those black citizens who are most vulnerable to unjustified interference because they resemble the lawbreakers in age, gender, and class." Austin, supra note 106, at 1773-74.
139. See Roberts, supra note 102, at 1948-49. Margaret Russell writes of the special danger of fostering a "ready conflation of race and ethnicity with culpability." Russell, supra note 16, at 766. Because of their message that parents need to be regulated to supervise their children properly, curfews present an acute danger of reinforcing popular stereotypes of broken families and lost values in inner city families.
140. See Jackson & Rudman, supra note 21, at 271.
141. See Austin, supra note 106, at 1780. In fact, the oppressed communities themselves may legitimize the behavior "as an act of defiance" or "in the name of racial justice." Id. at 1774; see also Gary Peller, Criminal Law, Race, and the Ideology of Bias: Transcending the Critical Tools of the Sixties, 67 TUL. L. REV. 2231, 2238 (1993) (questioning whether individuals in fact exercise free will in choosing to commit certain crimes).
142. See Austin, supra note 106, at 1780. In fact, the oppressed communities themselves may legitimize the behavior "as an act of defiance" or "in the name of racial justice." Id. at 1774; see also Gary Peller, Criminal Law, Race, and the Ideology of Bias: Transcending the Critical Tools of the Sixties, 67 TUL. L. REV. 2231, 2238 (1993) (questioning whether individuals in fact exercise free will in choosing to commit certain crimes).
143. Austin, supra note 106, at 1815.
144. See Kennedy, supra note 88, at 1273.
145. As Cummings and Monti note, "neighborhood groups can seduce gang members or push them out of an area when the community is mobilized against gangs." Cummings and Monti, supra note 3, at ix.