Gang loitering and race.

When the United States Supreme Court held in City of Chicago v. Morales(FN1) that Chicago's anti-gang loitering ordinance--authorizing the police to disperse groups of loiterers containing criminal street gang members(FN2)--was unconstitutionally vague, Harvey Grossman, the attorney who had argued the case for the winning side, called the decision "a victory for 'young men of color. "(FN3) That may seem a strange thing to say about a case in which no claim of racial discrimination was made by the parties or passed upon by the Court,(FN4) but Mr. Grossman's reaction was far from idiosyncratic. Questions of racial fairness are consistently raised by the critics of anti-loitering and other public order laws.(FN5) Dorothy Roberts, for example, sees the Court's holding in Morales as reflecting a concern about the risk of racial bias in the enforcement of public order laws.(FN6) Under Chicago's anti-gang loitering ordinance, she contends, the potential for police abuse was especially high: "With no criminal conduct to go by, police officers probably used race as a critical factor in judging whether an individual might be a gang member."(FN7) The inevitable racial friction that this type of law will produce, Professor Roberts argues, reinforces patterns of racial subjugation.(FN8) David Cole makes a similar argument and adds that when minorities perceive this type of unfairness in the criminal justice system they "have less incentive to play by the rules, and accordingly, double standards in law enforcement actually contribute to criminal conduct in those neighborhoods that are already most at risk of criminal behavior for socioeconomic reasons."(FN9).

The decision in Morales makes the questions raised by Professors Roberts and Cole even more urgent. The Court found the ordinance vague because it permitted enforcement against loiterers engaged in entirely "innocent" activities, but added that a law directed at loitering by groups containing gang members would sufficiently limit enforcement discretion "if the ordinance only applied to loitering that had an apparently harmful purpose or effect ...."(FN10) Justice O'Connor, in a concurring opinion joined by Justice Breyer, added that an antigang loitering law should be upheld if it defined loitering as "to remain in any one place with no apparent purpose other than to establish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities."(FN11) Thus, the Court appears to have endorsed anti-loitering laws when loitering has an "apparently harmful purpose or effect"; a standard for judging loitering laws far more lenient than can be found in prior precedents.(FN12) Chicago has taken the Court's hint. The Chicago City Council recently enacted a new antigang loitering ordinance that authorizes police officers to order groups containing members of criminal street gangs to disperse when they are engaged in "gang loitering."(FN13) The new ordinance defines "gang loitering" as "remaining in any one place under circumstances that would warrant a reasonable person to believe that the purpose or effect of that behavior is to enable a criminal street gang to establish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities."(FN14) The new ordinance also defines "criminal street gang" in terms that track the federal racketeering statute's definition of "racketeering activity."(FN15) The City Council enacted a companion anti-drug loitering measure as well.(FN16).

While narrower than the original anti-gang loitering ordinance, these revised measures nevertheless provide a potent prophylactic policing tool: they authorize dispersal orders whenever the police reasonably believe that gang or drug activity is afoot. Indeed, a nationwide trend seems to be underway to enact anti-loitering laws as part of the movement toward community-oriented and order-maintenance policing.(FN17) And because laws drafted to comply with the Morales decision are likely to withstand attack on other grounds, future debate on the fairness of public order laws is likely to focus on whether they can be fairly applied to racial minorities.(FN18).

To date, the debate over public order laws has largely been framed in terms of the supposed virtues and vices of order maintenance as a policing strategy. The advocates of public order laws argue that visible disorder in a community stimulates the commission of more serious crimes,(FN19) and that a policing strategy based on order maintenance is of particular benefit in inner-city minority communities, where social disorder is a particularly serious problem.(FN20) Critics of public order laws take the opposite tack; they question the relationship between disorder and crime,(FN21) and argue that the police are likely to unfairly target persons of color as "disorderly."(FN22) Largely missing from this debate, however, is an effort to evaluate public order laws in light of the considerable research that has been done in the past few decades on the ecology of the inner city. That research, I will argue, suggests a different kind of case to be made on behalf of public order laws.

Thus, in an effort to advance the debate over public order laws, I will focus not on the controversial relationship between disorder and crime, but on the ecology of the inner city. In particular, I intend to focus on the work identifying an inner-city, disproportionately minority "underclass," and on the implications of that concept for crime control. Underclass theorists assert that as a consequence of structural changes in the economy, coupled with the continuing effects of racism, an "underclass" has emerged that faces much more restricted opportunities for upward mobility than existed in the urban slums of earlier eras.(FN23) I focus on the concept of an "underclass" not only because it has such wide acceptance among students of the inner city, but also because it sheds so much light on the racial dimension of inequality in America. Underclass theory's special value lies in its ability to explain why the traditional vehicles for upward mobility have failed so many inner-city minorities. There have been insufficient attempts, however, to apply the teachings of underclass theory to criminal justice policy, and, in particular, to gang crime, the particular form of lawlessness that most profoundly affects inner-city underclass communities.

This effort to consider the implications of underclass theory for inner-city gang crime begins with the evidence showing the dimensions of the problem that gang crime poses for the inner city. The emergence of entrenched criminal street gangs, I will then argue, is the natural consequence of the emergence of an entrenched urban underclass.(FN24) Gang crime in an underclass community has a predictable pattern, resulting in a thoroughly destabilized and demoralized community in which drug trafficking comes to be seen as one of the few economic opportunities available. Unless rampant gang criminality in underclass neighborhoods is curbed, the ability of other social and economic policies to ameliorate the plight of underclass communities is at best limited. I will also argue that an anti-loitering strategy is a vehicle for attacking conditions conducive to the success of street gangs without relying on mass incarceration strategies that impose enormously disproportionate burdens on minorities. From the standpoint of racial fairness, I will contend that the use of public order laws is preferable to conventional law enforcement strategies, both because public order laws address conditions that facilitate the success of inner-city gangs through relatively moderate police tactics, and because they are less susceptible to police abuse than the tactics that they replace.

The approach to criminal justice policy taken here long ago went out of fashion. In this era of harshly punitive criminal laws based on theories of retribution and deterrence, an effort to identify the root causes of inner-city crime may seem to many beside the point. But in my view, it is time for a rigorous reassessment of criminal justice policy in light of all that we have learned about the sociology and political economy of the inner city in the last thirty years--an inquiry rarely undertaken in the debate over public order laws. If poverty and racism are at the root of inner city crime, then the fairness of the harshly punitive regime reflected in current criminal justice policy--especially as represented by drug trafficking laws--is properly open to question. The sociology and political economy of the inner city also suggests, however, that if law enforcement is given no role to play in suppressing inner city crime, it is native to think inner-city communities can be revitalized. Public order laws, I will suggest, can serve the twin goals of promoting racial fairness and revitalizing the inner city.

I. THE MAGNITUDE OF GANG CRIMEReliable statistics on gang membership and gang crime are hard to come by--there is no generally accepted methodology for identifying gangs, gang members, or gang-related crime.(FN25) Yet there is little genuine doubt that the problem of gang crime is of considerable proportion. The National Youth Gang Survey, a United States Department of Justice survey of law enforcement agencies nationwide, estimated that in 1998 there were 28,700 gangs in the United States with 780,200 members.(FN26) A survey of seventy-nine large and forty-three small-sized cities in the early 1990s found 249,324 gang members, 4,881 gangs, 46,359 gang-related crimes, and 1,072 gang-related homicides within a seventeen-month period.(FN27) The Los Angeles County Sheriff has estimated that Los Angeles County alone contains more than 1,200 gangs with more than 150,000 members.(FN28) The United States Attorney for the Northern District of Illinois has estimated that Chicago alone has some 125 street gangs with more than 100,000 members.(FN29) This assessment of the magnitude of the gang problem is not confined to surveys of law enforcement agencies. For example, surveys have found that anywhere from 5 to 10 percent of all public school students claim gang membership.(FN30) A 1995 survey reported that 28 percent of students ages 12-19 reported gangs at their schools (up from 15 percent in 1989); the figure was 41 percent for students in central cities (up from 25 percent in 1989).(FN31).

With gangs comes violent crime. The National Youth Gang Survey reported that in 1997 there were 3,340 homicides involving gang members, and 1,880 homicides involving gang-related motives.(FN32) This means that gangs were involved in 18 percent of all homicides nationwide.(FN33) While reliable statistics are not available to evaluate trends in gang-related homicide, "levels of youth homicide remain considerably higher than those of the early and mid-1980's."(FN34) And there is little evidence that gang activity is declining along with the overall crime rate; the 1998 Survey reported that 42 percent of responding jurisdictions believed that their gang problem was staying about the same, 28 percent felt it was worsening, and 30 percent felt that it was improving.(FN35).

There is wide agreement among scholars that the rate of violent crime among gang members is much higher than the rate of violent crime among other delinquent youth.(FN36) There is also general agreement that the level of gang violence has escalated dramatically in recent decades.(FN37) And the rate at which gang-related violent crime results in fatalities has also risen in recent years--a fact that gang researchers attribute to the increasing availability of high-powered handguns.(FN38) This rising level of gang violence, of course, has had a dramatic impact on the character of gang-infested communities. As a United States Department of Justice report observed: "Violent gangs are now having a major impact on the quality of life of communities throughout the nation."(FN39).

Perhaps the most repellent type of gang violence is the drive-by shooting, favored by gang members when they mean to attack rivals on their own turf, necessitating a quick approach and getaway.(FN40) Of course, it is not that easy to shoot someone from a moving car. Consequently, drive-bys and other gang-related shootings all too often injure innocent bystanders. For example, between 1987 and 1994, of the 956 gang-related homicides in Chicago, 138 of the victims were not gang members, and twelve victims were age nine or younger; non-gang-member victims were also disproportionately likely to be very young or elderly and most frequently were shot as the result of crossfire.(FN41) A study of gang-related homicides in Los Angeles found that half of the victims were not gang members.(FN42) This is one of a number of characteristics of gang-related homicides that make them especially destructive of a community's morale and stability, as a recent Department of Justice study concluded:.

Homicides by gang members are more likely to take place in public settings (particularly on the street), involve strangers and multiple participants, and involve automobiles (drive-by shootings). Gang homicides are three times more likely than nongang homicides to involve fear of retaliation.(FN43).

But the form of criminal activity most closely identified with criminal street gangs is drug trafficking. The 1998 National Youth Gang Survey found that reporting jurisdictions identified a larger proportion of gang members involved in drug sales than any other form of criminal activity and that 34 percent of all gangs were considered "drug gangs."(FN44) Academic researchers relying on self-reporting by urban youth have also consistently reported heavy involvement of inner-city gangs in narcotics sales.(FN45) Martin Sanchez Jankowski, the author of what appears to be the most comprehensive ethnographic survey of gangs to date, an examination of thirty-seven gangs in three different cities over ten years, found that " t he biggest money-maker and the one product nearly every gang tries to market is illegal drugs."(FN46).

But likely the most insidious aspect of gang crime is one that the academic literature often overlooks: gang activity is frequently undertaken out in the open, on the public ways, and in full view of the rest of the community.(FN47) Openly conducted criminal activity signals to the community that the police must be either corrupt or inept--a complaint I have heard countless times at community meetings--and a view that is especially destructive of community morale.(FN48) Openly conducted criminality speaks volumes as well about the degree to which gangs have succeeded in intimidating the surrounding community. Few other types of criminals commit their crimes in broad daylight, and in full view of law-abiding persons. The fact that gangs are willing to engage in drug sales and other types of criminal activity in the open sheds great light on their confidence that they have thoroughly silenced law-abiding persons in their midst.(FN49) And when witnesses are too scared to testify and officers seem helpless to stop drug trafficking, the police and community alike become hopeless about their ability to restore community stability.

Reliable statistics on the racial and ethnic dimension of gang crime are also hard to come by, but the statistics that are available consistently indicate that African-Americans and Hispanics are disproportionately represented among gangs.(FN50) The 1998 National Youth Gang Survey estimated that nationwide, gang membership was 46 percent Hispanic and 34 percent African-American.(FN51) Another survey of law enforcement agencies in seventy-nine large cities estimated that 48 percent of gang members were African-American and 30 percent were Hispanic.(FN52) Yet a third survey of the police departments of the nine cities with the largest gang populations estimated gang membership at 42.9 percent African-American and 44.4 percent Hispanic.(FN53) Research based on self-identification consistently shows that whites do not join gangs at the same rate as African-Americans and Hispanics.(FN54) And a 1995 survey of students ages 12-19 found that 61 percent of Hispanic students and 44 percent of African-American students reported gangs present at their schools, compared to 33 percent of white students.(FN55).

A similar pattern is reflected in the statistics concerning those charged with gang-related crime. For example, a study of gang-related homicides in Chicago from 1990 to 1994 showed that African-American males were about sixteen times more likely to be charged with gang-related homicide than nonminority males, and Hispanic males were about thirteen times more likely to be charged with gang-related homicide than nonminority males.(FN56) The available statistics also show that minorities are the victims of gang-related crimes more frequently than nonminorities.(FN57) For example, a study of gang-related homicide in Chicago from 1990 to 1994 showed African-American males were about fifteen times more likely to be the victim of a gang-realted homicide than nonminority males, and Hispanic males were about fourteen times more likely to be the victim of a gang-related homicide than nonminority males.(FN58).

The enormous problems that gang crime pose for inner-city neighborhoods helps to explain a phenomenon little remarked upon in legal scholarship, but which is commonplace for those actually involved in urban law enforcement: among the residents of inner-city minority communities, there is an intense demand for greater police presence and protection, not less.(FN59) This reality is reflected in the available polling data, which consistently indicates that minorities are more likely to believe that additional resources should be devoted to fighting crime than are nonminorities.(FN60) This phenomenon reflects a basic tenet of urban sociology--communities view crime as a basic threat to their existence, and will organize in order to bring both public and private resources to bear against criminal activity to the extent that they are able.(FN61).

Nevertheless, I would not expect the statistics that I cite above--much less my own views--to be persuasive to those who have doubts about the fairness of gang suppression efforts in the minority community. Statistics about the racial dimensions of gang crime can readily be discounted as attributable to the biases of those who compile them. What is not so easy to discount, however, is the relationship between gang crime and the plight of what has come to be called the inner-city "underclass." As John Hagedorn, one of our leading gang ethnographers, has observed:.

To deny that gangs today are predominantly a minority problem inevitably leads to a failure to analyze the impact of our changing economy on various classes within minority communities. The significance of the formation of a minority urban underclass and the simultaneous emergence and entrenchment of gangs is completely overlooked.(FN62).

In an effort to avoid the mistake that Hagedorn charges has been made by so many who write about gang crime, I next advance a view of gang crime that takes account of the formation, existence, and entrenchment of an urban and disproportionately minority underclass.

II. TOWARD A THEORY OF GANG CRIMEThe seminal work on gangs is Frederic Thrasher's study of 1920s-era Chicago gangs.(FN63) Thrasher's view, based on intensive field study, was that delinquent gangs were most likely to arise in relatively poor, unstable neighborhoods, which generally lack settled customs and institutions that inhibit delinquent conduct.(FN64) By the 1960s, a virtual consensus emerged around Thrasher's essential point--that gang formation is a consequence of the conflicts that emerge in socially disorganized lower-class milieus. The leading scholars in the field differed in their accounts of the nature of these conflicts, but essentially agreed that the social stresses commonly experienced in lower-class slum neighborhoods are at the heart of gang formation.(FN65) Worthy of special attention--both because it accurately predicted much of what was to follow and because of the special pertinence that it has for racial minorities--is the "blocked opportunity" thesis advanced by Richard A. Cloward and Lloyd E. Ohlin.

Cloward and Ohlin advanced a "strain" theory, explaining the emergence of delinquent conduct among groups of youth in terms of the quest for upward mobility. Western industrialized societies, they observed, claim adherence to meritocratic principles, but when individuals come to believe that their aspirations cannot be realized by legitimate means, they experience pressure toward deviant behavior.(FN66) Cloward and Ohlin argued that when discrete groups come to believe that they cannot attain their economic and social objectives by legitimate means, they turn to illegitimate ones: "It is our view that pressures toward the formation of delinquent subcultures originate in marked discrepancies between culturally induced aspirations among lower-class youth and the possibility of achieving them by legitimate means."(FN67) This pressure is most common within relatively disadvantaged classes, because although lower-class individuals "may yearn to rise in the social structure, the obstacles are great."(FN68) And " i f traditional channels to higher position, such as education, are restricted for large categories of people, then pressures will mount for the use of alternative routes."(FN69) The result is that "many lower class youths turn away from legitimate channels, adopting other means beyond middle class mores, which might offer a possible route to success-goals."(FN70) Cloward and Ohlin premised this view on both sociological theory and research indicating that delinquency is most frequent among those that believe that they have been unjustly denied opportunities for advancement.(FN71).

Where relatively large and coherent groups perceive that they confront common unjust barriers to advancement, Cloward and Ohlin reasoned, a deviant subculture is likely to form.(FN72) This occurs, they argued, when the prevailing social order is seen as illegitimate, so that guilt about the violation of social mores is unlikely to restrain deviant conduct.(FN75) One example of this phenomenon that Cloward and Ohlin identified was when discrete racial groups come to believe that despite the prevailing meritocratic dogma, racial criteria in fact are used to determine who can advance in society.(FN74) The type of deviant subculture that will develop in a given neighborhood, Cloward and Ohlin thought, depends on the character of the neighborhood.(FN75) When a lower-class neighborhood that experiences group pressure toward deviance also contains relatively stable criminal opportunities, what they called a "criminal subculture" will develop, as youths are drawn toward a stable organized crime structure.(FN76) But in relatively unstable neighborhoods, what develops is a "conflict subculture" that produces more violent behavior, as various groups compete for limited criminal opportunities.(FN77).

Cloward and Ohlin concluded with a prediction: " D elinquency will become increasingly aggressive and violent in the future as a result of the disintegration of slum organization."(FN78) Among the factors that they believed would contribute to increasing disorganization of lower-class communities were the decline in power of traditional organized crime, the decline of urban political machines and their ability to provide services to those communities, and massive "slum clearance" projects.(FN79) They concluded: "the major effort of those who wish to eliminate delinquency should be directed to the reorganization of slum communities."(FN80).

Of course, in the four decades since Cloward and Ohlin advanced their theory, social organization in the inner city has hardly improved. Instead, an increasingly service-oriented economy offered more restricted opportunities to individuals with limited skills and educational attainments; and reduced opportunities for upward mobility among the lower classes, in turn, helped to create what has come to be called an "underclass,"(FN81) a concept reflecting the characteristics that Cloward and Ohlin thought would produce violent gangs.(FN82).

The leading academic expositor of underclass theory is William Julius Wilson. His view--focusing on the inner-city African-American community in particular--is that in disadvantaged inner-city minority communities, an underclass has been created consisting of individuals who are "increasingly isolated socially from mainstream patterns and norms of behavior."(FN83) In Wilson's view, the urban underclass faces two primary impediments to upward mobility.(FN84) First, in the past thirty years economic opportunities available to persons with relatively limited educational attainment have sharply diminished as a result of structural changes in the economy that have reduced the demand for low-skill workers in the manufacturing and industrial sectors.(FN85) Second, there has been an enormous increase in female-headed families and out-of-wedlock births in the African-American community,(FN86) and that as well vastly diminishes the economic prospects for the members of these families.(FN87) The impediments that the underclass faces to upward mobility interact with the profound effects that Wilson believes the departure of the middle-class from inner-city slum neighborhoods has had on those too poor to leave.(FN88) He explains that.

the exodus of middle- and working-class families from many ghetto neighborhoods removes an important "social buffer" that could deflect the full impact of the kind of prolonged and increasing joblessness that plagued inner-city neighborhoods in the 1970s and early 1980s, joblessness created by uneven economic growth and periodic recessions. This argument is based on the assumption that even if the truly disadvantaged segments of an inner-city area experience a significant increase in long-term spells of joblessness, the basic institutions in that area (churches, schools, stores, recreational facilities, etc.) would remain viable if much of the base of their support comes from the more economically stable and secure families. Moreover, the very presence of these families during such periods provides mainstream role models that help keep alive the perception that education is meaningful, that steady employment is a viable alternative to welfare, and that family stability is the norm, not the exception.(FN89).

Accordingly, Wilson believes that "the groups that have been left behind are collectively different from those that lived in these neighborhoods in earlier years."(FN90).

The isolation of underclass neighborhoods from middle-class values makes upward mobility all the more difficult, Wilson argues.(FN91) The underclass becomes discouraged about opportunities for employment, believing that inner-city residents do not receive fair opportunities for advancement.(FN92) And employers, in turn, fear hiring residents of inner-city neighborhoods, believing that they are not reliable employees.(FN93) As a result, joblessness has persisted in underclass neighborhoods despite the prolonged economic expansion of the 1990s.(FN94).

The ultimate consequence of social isolation, Wilson argues, is that welfare and the underground economy become an important means of support in these neighborhoods.(FN95) Crime, in particular, flourishes in these underclass neighborhoods where economic opportunities are limited: "The underclass ... knows that illegal activities, in many respects, provide a more lucrative alternative to low-wage employment."(FN96) And indeed, crime is endemic in these neighborhoods.(FN97).

The obstacles confronting the underclass are disproportionately experienced by African-Americans, since no other racial or ethnic group is so concentrated within impoverished and disorganized communities.(FN98) Many Hispanic neighborhoods have also experienced conditions that characterize the African-American underclass.(FN99) As a statistical matter, it is undeniable that African-Americans and Hispanics are grossly overrepresented among those who live in poverty.(FN100) And that overrepresentation is explained, at least in significant part, by the role that racism plays in creating a socially-isolated underclass. Wilson's account, for example, stresses the role of employment discrimination against minorities in entrenching the underclass.(FN101) Douglas Massey and Nancy Denton have added that the disproportionate representation of African-Americans in underclass neighborhoods is also a consequence of housing discrimination against African-Americans, who face potent discriminatory barriers when attempting to leave neighborhoods experiencing the social isolation that Wilson describes.(FN102).

The view that there is an identifiable group facing powerful barriers to upward mobility that can be fairly characterized as an "underclass" is now widely accepted.(FN103) As a statistical matter, there can be little doubt that 1970 began an era in which upward mobility at the bottom rung of the economic ladder came to a halt--despite the booming economy of recent years, the proportion of Americans living in poverty in 1999 was higher than in 1969.(FN104) And of even greater pertinence to criminal justice policy, there is a growing body of evidence that as the economic opportunities available to low-skill residents of underclass communities have constricted, criminal activity has become a rational economic decision in those communities.(FN105).

The minority underclass thus has become a paradigmatic example of a discrete group confronting what Cloward and Ohlin called "blocked opportunities."(FN106) While living in a nation that proclaims fealty to a meritocratic ideal, the minority underclass confronts an economy offering limited opportunities to unskilled workers, its children are confined to inferior schools, and it confronts both real and perceived racism as a powerful and wholly illegitimate barrier to upward mobility.(FN107) The blocked opportunity thesis thus suggests that minority underclass neighborhoods should be fertile breeding grounds for gang crime.(FN108).

And in fact, the work that has been done in gang ethnography confirms that underclass conditions powerfully stimulate gang formation. Indeed, there is a virtual consensus among gang researchers on this point.(FN109) In his ethnographic study of gang activity in a largely African-American Chicago housing project, for example, Sudhir Venkatesh observed a direct relationship between the decline in labor-market opportunities for inner-city youth in the Chicago area and the view that project residents took of gangs, finding that as economic opportunities constricted during the 1970s and 1980s "youth gangs' stature in the community shifted from 'delinquent to economic ...."(FN110) Irving Spergel has observed, summarizing gang research in the 1980s and early 1990s, "in inner-city African-American communities, limited criminal opportunity systems have evolved as gangs change from status-oriented conflict groups to more rational but predatory organizations, with special interests in drug trafficking and other criminal gain."(FN111) Pamela Jackson has even demonstrated a statistical relationship between the indicia of an underclass neighborhood and the indicia of gang activity.(FN112) In disorganized and disadvantaged underclass communities, ethnographers observe, gangs thrive because they provide prestige, social structure, and support systems for youths who may have little other structure in their lives.(FN113) Gang membership may also be an important means of self-protection from the many threats confronting residents of disadvantaged neighborhoods.(FN114) But even more important is the opportunity for financial gain that gang membership provides to those who perceive their legitimate opportunities for upward mobility to be limited at best. Gang ethnography again bears out this point. Jankowski's study, for example, found that the opportunity for material gain was the chief reason cited by gang members for joining a street gang.(FN115) Sudhir Venkatesh, whose ethnographic studies are nearly as comprehensive as Jankowski's, also found the prospect of material gain to be a principal motive for gang participation.(FN116) And this conclusion is consistent with the findings of many others.(FN117).

Because of the persistence and magnitude of poverty in minority underclass neighborhoods, the underground drug economy is one of the primary sources of economic opportunity available in those neighborhoods.(FN118) Crime rates continue to reflect the sustained attraction of narcotics trafficking; there is little evidence that drug crime has declined with the general trend toward declining crime rates. To the contrary, drug arrests continue to rise,(FN119) and despite the enormous resources devoted to drug-law enforcement, the supply and price of illegal drugs has remained stable.(FN120) Phillippe Bourgeois has argued that disadvantaged minorities are particularly vulnerable to the attractions of the drug economy, since underclass minorities are particularly skeptical about the legitimate economy by virtue of their experiences with racism.(FN121) For racial minorities who confront racial as well as economic barriers, the economic opportunities that gangs offer are therefore especially potent.(FN122) That view is supported by statistics on the racial composition of gangs suggesting that poverty alone does not explain gang membership; the proportion of minorities among gang members substantially exceeds the proportion of minorities living in poverty.(FN123) In short, with an entrenched and disproportionately minority underclass comes entrenched and disproportionately minority gangs.(FN124).

This brief survey of contemporary ethnographic research on gang activity brings me back to Cloward and Olin's view of gang formation. A theory resting on "blocked opportunities" explains the propensity for gang activity in underclass neighborhoods, as well as the increasing emphasis gangs have placed on sales of narcotics.(FN125) It is also certainly consistent with the analysis of Wilson and others about the character of the inner-city underclass.(FN126) But most important for present purposes is the implication for crime control that this view of gang formation holds. When crime comes to be seen as a rational choice for residents of a discrete neighborhood, that will ultimately have a profound impact on social norms in that neighborhood, and, therefore, the willingness and ability of its residents to choose legitimate paths to upward mobility. Mercer Sullivan, in his ethnographic study of three disadvantaged New York neighborhoods, made this point as he synthesized economic and cultural explanations for underclass crime, concluding that crime comes to be tolerated in a community to the extent that it comes to be seen as a necessary means of bringing resources into that community.(FN127) Frank Zimring and Gordon Hawkins have made a similar point, observing that openly conducted drug dealing in impoverished communities with few other economic opportunities causes a potent form of community demoralization to "set in, making all forms of illegitimate activities seem both more attractive and less credibly stigmatized."(FN128) This assessment, of course, does not even take into account the plethora of other consequences of gang criminality for a community, such as its effects on property values, incentives to invest, the willingness of community residents to assist law enforcement efforts, and the incentive for those who can afford to out-migrate to do so.(FN129).

In short, gang crime is a real threat to the inner-city minority community, not just an excuse for aggressive policing. Whether, as a sociological matter, one accepts a "strain" theory like that advanced by Cloward and Ohlin, a theory stressing the absence of social controls in the inner city, or one stressing the patterns of social learning in certain communities as the basis on which gangs form, ultimately it should be plain that when community mores are undermined by gang criminality, the slim chance that the inner city has for revitalization becomes even slimmer.(FN130) Of course, the factors that determine what course any given individual's life will take are enormously complex, and indeed most residents of underclass communities do not turn to gang crime.(FN131) But if one takes seriously the magnitude of the barriers that confront the minority underclass, then one must also acknowledge that gangs will have a special attraction for the residents of those communities, and will pose a special threat to their future. Moreover, the underclass thesis suggests that contemporary gangs may be more entrenched than the urban gangs of previous eras, since the relative opportunities for economic advancement open to low-skill workers and the exposure of youth in underclass neighborhoods to middle-class values appears even more circumscribed now than during much of the twentieth century.

Because the underclass faces special economic disadvantages, underclass theorists properly argue that special efforts must be made to increase the educational and economic opportunities available to residents of those communities--advocating a sort of New Deal for the inner cities.(FN132) While I am myself in considerable sympathy with that approach, the case that has been made for it to date is at best incomplete. The advocates for greater social spending in the inner city all too often fail to come to grips with the need for enhanced policing as part of an effort to revitalize the inner city. The success of any social program, especially in communities rightly skeptical about the willingness of society to give them a fair chance at advancement, will be necessarily impaired as long as illegitimate economic opportunities remain abundant.(FN133) Elementary economics dictates this conclusion--to the extent that illegitimate opportunities for advancement remain available, the relative attractiveness of whatever legitimate opportunities that are available, particularly for those skeptical about those opportunities, is diminished. Indeed, studies of anti-gang programs consistently show that those programs that combine social services with increased enforcement initiatives enjoy the most success.(FN134) Ultimately, then, the case for using the criminal law to achieve gang suppression should be particularly compelling for those who are persuaded by the view that poverty is the most potent criminogenic force in the inner city.(FN135).

Accordingly, an efficacious gang suppression strategy must minimize the attraction of street gangs for the residents of underclass communities. Since the available research suggests that the economic incentives underlying gang crime are particularly potent, mitigating those incentives should be a centerpiece of gang suppression strategy.(FN136) That, in turn, requires more detailed consideration of gang drug trafficking, since it is the principal type of economically motivated crime associated with street gangs.(FN137) And, as we will see, drug trafficking holds special advantages for gangs when compared to other types of crime.

III. GANGS AND THE ECOLOGY OF INNER-CITY DRUG TRAFFICKINGIt is not difficult to imagine how a rational gang wishing to maximize its drug profits would organize itself. Because drug buyers lack reliable pricing information, drug sellers should be able to charge higher prices than they would obtain in a perfectly competitive market. Prices can rise even higher if a gang can exclude competition from a given market. That can be done by identifying and then monopolizing a territory that can operate as a drug market--preferably a lucrative one where demand is high--through the use of coercive tactics against potential competitors. That is pretty much how successful gangs operate.

Gangs begin with a particular advantage in establishing territorial monopolies, since they are frequently organized around an identifiable geographic territory.(FN138) The ethnographic work confirms that, within their territory, gangs attempt to control drug trafficking in order to increase profits.(FN139) John Hagedorn provides an example from Chicago: "gangs carved out turf in large high-rise housing projects, where a small organized group could control drug sales and reap enormous profits simply by controlling the housing project elevators by armed force."(FN140) Of course, not all turf is created equal. Most lucrative are those areas relatively accessible to affluent outsiders; one of the few studies to examine this issue, Hagedorn's study of Milwaukee gangs, found that the most important factor stimulating the growth of gang drug trafficking was whether a gang operated in an area readily accessible to and frequented by drug buyers from relatively wealthier areas.(FN141) This makes eminent sense; drug dealing would not be terribly lucrative if it did no more than attract the money already in disadvantaged neighborhoods--neighborhoods that have little enough of money to begin with.

Gangs thus take on an entrepreneurial character; indeed, they are forced to do so by the imperatives of the market, just like any other business. In time, the more successful gangs prosper while the less successful die, as the ethnographic work shows.(FN142) The structure of a street gang is well-suited to success in the drug business, precisely because the gang provides a potent means by which monopoly power over identifiable turf can be achieved. Skolnick, Bluthenal and Correl, in their study of Southern California gangs, make the point:.

B eing a member of gang facilitated drug dealing success. This facilitation was apparent in myriad ways. Gangs, for example, offer a rich source of shared marketing information. Information about who sells, for what price, and who has drugs available is frequently communicated along gang lines. The gang member can also rely on his homeboys for protection and concerted retribution if anything should happen to him inside or outside his gang turf. Gang members, furthermore, enjoy easy access to and control of territorial markets. They can sell drugs in their own neighborhood without intruding on the turf of others. In return, they can exclude others from selling on their turf. This territorial monopoly is backed by force since the gang automatically protects against outside intruders. Finally, there is a well-developed and virtually sacrosanct sense of trust inhering in the homeboy relationship, so that gang members are expected not to betray other members to the police or rival gangs.(FN143).

The importance of controlling identifiable turf is enhanced by the fact that drug sales are frequently conducted outdoors, in open-air markets. The best data on this point currently available, a United States Department of Justice survey of arrestees in six large cities, found that the vast majority of crack and heroin purchases are made outdoors, with powder cocaine somewhat less likely to be purchased outside.(FN144) At first blush this may seem puzzling; one would think that persons engaged in unlawful activities would prefer to do so indoors, away from prying eyes, and not where they are especially vulnerable to surveillance and arrest. But once again there is an entrepreneurial explanation. Visible drug markets are easy for potential customers to find, and aside from customers' preference, those involved in illegal transactions may be distrustful of indoor drug houses, where they lack mobility and are relatively more vulnerable to robbery or police raid.(FN145) This is especially true when drug markets cater to relatively affluent outsiders, who are likely to be unfamiliar with disadvantaged neighborhoods and unable or unwilling to look for covert drug distribution centers. Even where drugs are sold indoors, traffickers will still require lookouts to be posted outside to warn of police activity, again, requiring the visible control of turf.(FN146).

The phenomenon of open-air drug markets, as well as the necessity to post lookouts, requires gangs to be able to thoroughly intimidate the law-abiding residents of their neighborhoods, in order to ensure that they will refrain from informing the authorities of drug trafficking in the neighborhood. This imperative of intimidation is perhaps the leading reason why conventional criminal laws are so difficult to enforce against gangs. The drug trafficking laws, as well as laws targeting gang intimidation and harassment, are enormously difficult to enforce if witnesses are too scared to testify.(FN147) Although the academic literature evinces little awareness of this problem, it is terrifically difficult to convince witnesses to testify against gang members, given the prevalence of gang intimidation.(FN148).

The structure of drug markets also explains quite a bit about the causes of gang violence. Researchers have found no consistent relationship between gang activity and violence, nor between drug trafficking and violence.(FN149) The entrepreneurial character of gangs explains this phenomenon. If a gang can establish a stable monopoly over relatively lucrative turf, it will do what it can to discourage violence, which is only likely to draw the attention of the authorities and ultimately depress revenue.(FN150) Gang truces are often motivated by this objective; truces can end a costly dispute by establishing a stable market allocation. But when competitors cannot agree on who will control lucrative turf or when intra-gang disputes over who will control narcotics or other illicit revenues arise, violence is frequently the means to resolve the dispute.

Academic research, for example, has found a close relationship between disputes over turf or similar gang prerogatives and violence.(FN151) That view that is also widespread among law enforcement officials.(FN152) The enormous increase in violence that accompanied the entry of crack cocaine into urban markets in the mid-1980s illustrates this point as well; violence followed when drug-trafficking organizations competed in order to exploit a new drug which, by virtue of its unusually low price, created a host of new marketing opportunities.(FN153) Rigorous empirical work in this area is rare and difficult to perform, but one of the best such analyses is of gang-related homicide in Chicago, and it supports the view advanced here. An analysis of homicide data from 1965 to 1990, subsequently updated with data through 1994, found that gang-related homicides were more closely related to areas in which turf was under dispute than any other factor, including the incidence of drug trafficking.(FN154) Carl Taylor, in his ethnographic study of Detroit gangs, reached a similar conclusion:.

Gangs defend their territories in order to protect their narcotic business. The word is out on the street to everyone: "This is gang territory--stay away." Each street corner, dopehouse, salesperson, distributor, or customer is part of the territory. Anyone who attempts to enter the territory becomes the invader, the intruder, the enemy. Unlike the legitimate business world, gangs use physical violence as their only enforcement tool to stop competition and opposition. All gang types in this study respect the conditions of territorial law and the necessity that it generates for punishment.(FN155).

The need to maintain control over turf--both as a means of staffing drug distribution locations and to identify and retaliate against competitors--is why loitering is so important to gangs. Perhaps the best description of this process is found in Felix Padilla's ethnographic study of a Puerto Rican gang in Chicago, in which he found that gang members are required to "hang out," primarily to prevent rival groups from taking over their turf, but also because their time spent hanging out on the street block or corner determines the earning power of the organization.(FN156) When gang members did not "hang out" they were disciplined, usually beaten.(FN157) Padilla also reported that "labor relations" issues in the gang centered around the process of hanging out on the street. For example, gang members engaged in a form of work stoppage by refusing to hang out when they had a grievance with their superiors in the gang.(FN158) Hanging out also facilitates gang recruitment. In his study of barrio gangs in southern California, James Diego Vigil found that the younger children that hang out on street corners with gang members typically become members themselves.(FN159) And in one of the few studies of its kind, Curry and Spergel found that for both African-American and Hispanic youth in Chicago, hanging out in places where drug distributors are found was a statistically significant predictor of gang involvement; this was the only factor they were able to identify that accurately predicted gang involvement for both African-Americans and Hispanics.(FN160).

In short, gangs are strongest when they can establish stable monopolies over lucrative drug-trafficking turf. This requires them to post gang members on that turf in order to sell drugs and to protect the turf from rivals. What gang members who are hanging out in order to protect turf and sell drugs appear to be doing--at least when the police come on the scene--is loitering. If they can loiter with impunity, the arrival of uniformed police will put no real dent into their organization. Although drug sales must temporarily cease while the police are present, by loitering gang members can still control their turf. Of course, drug sales can resume when the police leave.

This survey of the ecology of inner-city drug trafficking suggests the efficacy of a gang suppression strategy targeting loitering. A focus on suppressing drug trafficking is suggested by the strong theoretical and empirical case that economic crime--especially crime that can attract money from relatively affluent outsiders--is a powerful stimulant to gang formation. A focus on loitering is suggested by the need to undermine the ability of gangs to maximize their advantage in drug markets. When the police can disperse loiterers, gangs cannot reliably staff the locations at which their customers expect to be able to find and buy drugs, nor count on the efficacy of lookouts who can identify both police activity and potential competitors.(FN161) This is a particular problem for gangs selling to customers from other, wealthier neighborhoods who are not likely to be intimately familiar with either gang members or their neighborhoods.(FN162) Students of drug enforcement agree that crackdowns on drug hot spots designed to make it more difficult and risky for drug dealers to remain easily accessible to their buyers are a particularly effective means for disrupting drug markets.(FN163) That is exactly what an anti-loitering strategy can achieve. And without stable and lucrative drug-trafficking monopolies, the appeal of gang membership is concomitantly reduced.(FN164) Making drug trafficking less profitable, in turn, can create real problems for gangs. The available evidence suggests that the wages of gang foot soldiers are not much higher than those in the legitimate market.(FN165) Hence, even modest reductions in gang revenues could critically alter the financial incentives to join gangs.

One might think that a strategy that makes it harder to develop and maintain stable drug monopolies over identifiable turf would increase gang violence in light of the view advanced here that gang violence is a product of turf disputes between competitors. There is, however, little evidence that gang violence increased during the enforcement of the earlier iteration of the gang-loitering ordinance in Chicago. In 1995, the last year the ordinance was enforced, and the year in which its enforcement was most widespread (more than half of all arrests under the ordinance were in 1995), the overall homicide rate in Chicago dropped 9 percent, but the gang-related homicide rate dropped 26 percent. Yet in 1996, when the ordinance was not enforced due to adverse judicial decisions, the overall homicide rate dropped another 4 percent, while the gang-related homicide rate rose 7 percent.(FN166).

Of course, these figures are hardly conclusive. Gang-related homicide statistics are notoriously spiky--a predictable consequence of the fact that gang violence is a function of the magnitude of gang turf disputes that may exist at any given time, rather than other factors that may be more stable.(FN167) But these statistics do suggest that whatever impetus to gang violence an anti-loitering strategy may create would be more than offset by the reduced friction between and among gangs-and the greater tactical difficulties in planning a drive-by shooting-when gang members no longer can occupy identifiable turf by loitering with impunity at predictable locations.(FN168).

Another aspect of anti-loitering laws that merits consideration is their impact on what the streetscape looks like. If one takes Wilson's work seriously, there is a reason to worry about visible signs of disorder on the streetscape even if there is no direct relation between crime and disorder.(FN169) Wilson stresses that the significance of the social isolation results when working class people leave an inner-city neighborhood.(FN170) Surely no one can doubt that open and notorious gang and drug activity contributes to this type of social isolation.(FN171) Of course, no one wants to raise children in the midst of open drug markets. Anyone who can afford to move out of neighborhoods afflicted by this type of overt criminality doubtlessly do so. That, in turn, leads to increasingly isolated underclass communities. If an anti-loitering law accomplishes no more than to enable the police to chase gang activity and drug dealing indoors, forcing it to become more covert, that alone can contribute to community stability.(FN172).

Of course, one does not need public order laws if one's objective is to disrupt drug markets; enforcing conventional drug laws through mass arrests of dealers would seem to do the trick even more effectively. Undercover operations are particularly well suited to that approach, since, as I have explained above, gangs want to attract relatively wealthier customers from other neighborhoods and therefore should be willing to sell drugs to undercover officers.(FN173) Whether this is a practical approach given the magnitude of gang drug trafficking, however, is open to serious debate. To the extent that the use of undercover operations to clear inner-city neighborhoods of narcotics trafficking relies on long-term incapacitation of drug sellers through incarceration, even with the massive prison systems that this country has produced, it is doubtful that the prison capacity exists to absorb the massive increase in incarceration that such a strategy would require.(FN174) There are equally serious doubts about the extent to which arrests for drug offenses can create a meaningful deterrent effect, given the prevalence of that conduct.(FN175) And the likely efficacy of any incapacitation or deterrence strategy is seriously undermined by the fact that even with the enormous increase in the rate of incapacitation of drug offenders that we have seen over the past two decades, there has been no discernable impact on the supply or price of illegal drugs.(FN176) What is more, the efficacy of undercover operations-whether involving the purchase of drugs or their sale in "reverse stings"-is considerably circumscribed, because when buyers and sellers learn that undercover tactics are in use, they also learn to deal only with those whom they know. That, in turn, only makes existing distribution networks more profitable and entrenched. It also gives gangs an incentive to warn customers when a "reverse sting" is underway-and given how well gangs understand their turf, this is a very real problem with that tactic, and one likely to become worse if it were to become commonplace. Undercover operations also take uniformed officers off the street, which can itself promote instability. It is reasonable to believe, in short, that if undercover operations were a panacea, we would have discovered that fact long ago. But even putting aside these doubts, what should be especially troubling about reliance on undercover tactics as a means of ridding the streets of open drug trafficking are the consequences of that approach from the standpoint of racial fairness.

In general, minorities are incarcerated at far greater rates than nonminorities.(FN177) This racial skewing is most dramatic, however, when it comes to drug crimes. The most recent data available indicates that African-Americans comprise 56 percent of those convicted of drug trafficking offenses and 49 percent of those convicted of drug possession offenses in state courts.(FN178) Among the federal prisoners convicted of drug offenses, 44.7 percent are African-American and 31.6 percent are Hispanic.(FN179) According to the Department of Justice's prisoner population statistics for 1999, among prisoners in state facilities for drug offenses, 134,800 were African-American, 51,700 were Hispanic, and only 46,300 were white.(FN180) According to another study, while African-Americans represent only 13 percent of drug users, they constitute 74 percent of those who are imprisoned for drug offenses.(FN181) And those sentences have become considerably harsher in recent years by virtue of the proliferation of federal and state laws imposing mandatory minimum prison sentences or sentencing guidelines for drug offenses.(FN182) Statistics for juvenile offenders also show similar racial skewing, greater for drug offenses than any other category.(FN185).

It is difficult to determine whether these statistics reflect anything that can fairly be called discrimination. Incarceration rates are at least partly explained by the greater ability of the police to identify inner-city drug traffickers operating in open air markets than upscale traffickers and buyers who are more likely to operate in a relatively covert fashion difficult for the police to target.(FN184) But even if the huge racial disparity in drug sentencing cannot be fairly characterized as discriminatory, it should nevertheless be enormously troubling.

No one but the lunatic racist fringe believes that race is criminogenic; what the research shows is that crime rates are higher in impoverished and socially disorganized areas, and that minorities are far more likely to live in areas of concentrated poverty associated with high crime rates than nonminorities, and face more potent barriers to upward mobility than nonminorities.(FN185) Gang research in particular bears out the relationship between inner-city underclass conditions and gang crime.(FN186) When we incarcerate inner-city residents for drug trafficking, then, we are, in significant part, sending people to jail because they have grown up in poverty. Affluent white suburbanites are simply never put to the tests posed by the economic and social stresses of the inner city. Nor could anyone fairly doubt that the disproportionate minority representation among the impoverished inner-city underclass is one of the many continuing consequences of racism. Indeed, as I suggested earlier, underclass scholarship has persuasively demonstrated that the existence of a disproportionately minority underclass is in significant part a consequence of racial discrimination in both housing and employment.(FN187) A strategy that relies on drug trafficking arrests as the principal tool available to disrupt drug markets, then, will likely only exacerbate the burdens that the minority community continues to experience as a consequence of racism.(FN188) And when we incarcerate minorities for crimes that they commit at least in part because they have been discriminatorily confined to socially isolated, underclass neighborhoods, we compound the sins of racism. That is not to suggest that we should abandon efforts to curb inner-city lawlessness--that too would compound the sins of racism--but it is to suggest that the demands of racial justice argue for considering tactics that stop short of mass incarceration of inner-city minorities.

Thus, in my view, the use of public order laws is ultimately justified in terms of racial justice. If underclass minority neighborhoods are not to be simply abandoned to the tender mercies of street gangs, something must be done to limit the power of those gangs. Using public order laws to chase gangs off the turf that is their lifeblood represents the most feasible step in this direction short of a mass incarceration strategy. I do not minimize the trauma that accompanies a custodial arrest, even on a misdemeanor public-order charge.(FN189) And in order to reclaim particularly lucrative turf, the police may well have to make repeated loitering arrests of the same person--in effect threatening drug dealers with the specter of "doing life in prison one night at a time" (a formulation that a police commander once commended to me). But surely the prospect of even repeated misdemeanor arrests pales in comparison to the burdens imposed on inner-city minorities through a mass incarceration strategy. However disagreeable a night in jail before bonding out on a misdemeanor charge is, the consequences of conviction and incarceration on felony drug trafficking charges, especially in this era of mandatory minimum sentencing, are far more onerous. And in light of the research suggesting that prison sentences increase the risk of recidivism, there is even greater reason for the criminal justice system to move toward less onerous sanctions.(FN190).

My aim here is not only to defend anti-loitering laws, but to suggest that they represent an approach that should be particularly attractive to those who believe that poverty and racism are at the root of inner-city crime. The view that poverty is powerfully criminogenic and that racism explains much inner-city poverty should not lead to the conclusion that the criminal justice system has no role to play in ameliorating inner-city crime; as long as crime is profitable and attractive for inner-city residents, it will undermine the efficacy of the other social programs necessary to stabilize and revitalize the inner city. Accordingly, law enforcement strategy should be based on an identification of aspects of the ecology of the inner city that make crime profitable and attractive.(FN191) Aspects of inner-city ecology that can be considered criminogenic may range from an absence of working streetlights, which facilitates robbery, to the ability of gangs to loiter with impunity, which facilitates stable drug markets.(FN192) But if the case for a policing strategy based on something other than sheer incapacitation is to be made, its advocates must be willing to identify and target criminogenic conditions and behavior. If, conversely, law enforcement does nothing to address criminogenic conditions because that risks punishing "innocent" behavior, then punitive regimes will always carry the day. And the risk of punishing "innocent" behavior that is said to attend public order law enforcement brings me back to the racial critique of the anti-gang loitering ordinance with which I began this article.

IV. GANG LOITERING AND THE POLICEIt is entirely fair to debate the efficacy of public-order law enforcement as compared to more conventional police tactics; I would not argue that compelling empirical evidence is yet available demonstrating the superior efficacy of public-order policing compared to conventional police tactics.(FN193) But the debate over whether public order laws unreasonably facilitate police abuse all too often is played out in only two dimensions--comparing the benefits of those laws to the risk that they will be used against innocent persons--while ignoring the critical question of how those laws compare with police tactics that would otherwise be employed. A more complete evaluative framework for any policing strategy's potential for abuse would consider not only the likelihood that it will be used against innocent persons, but also the magnitude of the intrusion on personal liberty that it authorizes, contrasted with the risk of abuse and the magnitude of the intrusion that inhere in the policing strategy it would replace. And that requires consideration of conventional policing tactics.

The police exercise enormous discretion under the Fourth Amendment standard of "reasonableness" for justifying the "seizure" of a person.(FN194) The Supreme Court tells us that "the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity 'may be afoot, even if the officer lacks probable cause."(FN195) The standard for reasonable suspicion, like the standard for probable cause necessary to justify a full-fledged custodial arrest, leaves ample room for police discretion; the Supreme Court has acknowledged that " a rticulating precisely what 'reasonable suspicion and 'probable cause mean is not possible."(FN196) The exercise of judgment and discretion therefore is inevitable as the police apply these standards, since " r easonable suspicion, like probable cause, is dependent upon both the content of information possessed by the police and its degree of reliability."(FN197) And the magnitude of the power that the police are granted on the basis of "reasonable suspicion" is substantial. For one thing, the "brief" detention authorized under the reasonable suspicion standard can last at least 20 minutes, and 20 minutes of custody can be a terrifying intrusion.(FN198) Moreover, the reasonable suspicion standard authorizes not only detention but physical intrusion as well; the Supreme Court has permitted the police to conduct "a protective search -- permitted without a warrant and on the basis of reasonable suspicion less than probable cause ...."(FN199).

Of particular relevance to policing in the inner city is the degree to which courts will grant police even greater leeway in "high crime areas." As Professor Raymond has observed, courts frequently permit the police to stop, detain and search individuals based on highly ambiguous conduct merely because that conduct occurs in what the police can fairly characterize as a "high crime neighborhood."(FN200) That approach was blessed by the Supreme Court in Illinois v. Wardlow,(FN201) when it held that the Fourth Amendment permitted police to detain an individual who fled upon their arrival in an area known for drug trafficking.(FN202) Thus, the Court has effectively granted the police greater authority to search and seize in many minority neighborhoods than they have elsewhere.(FN203) And whatever one thinks of the result in Wardlow, the rule that the Court has endorsed is not going to go away any time soon; on the question whether the police may consider whether they are in a "high-crime area" when making judgments about whether to detain individuals, the Court was unanimous.(FN204).

In the absence of rigorous statistical evidence, reasonable persons will differ on how frequently police use their discretion to stop and search under conventional laws to engage in racial profiling--the practice of using race as a basis on which to stop or detain individuals. But given the ample discretion that the police are granted by settled Fourth Amendment standards, few could doubt that a substantial potential for serious abuse is present even under quite ordinary laws, such as traffic regulations. My own guess is that racial profiling is probably less prevalent on urban police forces where officers more frequently interact with people of color than it is elsewhere, but there is no doubt that the evidence of racial profiling is becoming increasingly potent.(FN205) There is also no doubt that police departments must struggle with racism in their midst no less than other institutions. Moreover, because a substantial proportion of offenders that officers encounter are minorities, police daily confront the temptation to utilize racial stereotypes and generalizations. For those officers who give into that temptation, conventional law enforcement tactics grant considerable freedom to unfairly target persons of color. If nothing else, the current debate over racial profiling in the enforcement of quite conventional laws vividly illustrates just that point.(FN206).

Enforcement of conventional laws, accordingly, allows the police enormous freedom to undertake a variety of quite heavy-handed measures against the residents of inner-city minority communities, authority that officers who may harbor racial biases are frequently accused of misusing. Chicago-style anti-loitering laws that rely on police dispersal orders, in contrast, are a good deal less heavy-handed than a strategy that relies on officers stopping, detaining, and searching anyone who appears suspicious. Indeed, an anti-loitering ordinance targeted in the manner that Morales requires provides a dramatic example of limited enforcement discretion.(FN207) Under such an ordinance, both tactics and objectives are sharply circumscribed. An area can be targeted for enforcement only when the police reasonably believe that loitering in an identifiable area has a harmful purpose or effect.(FN208) Moreover, applying the "apparently harmful purpose or effect" standard endorsed in Morales will require use of officers intimately familiar with their beat, who can supply testimony about the effects that loitering has had in a neighborhood.(FN209) And under an anti-loitering ordinance like Chicago's--requiring disobedience to a dispersal order before an arrest can be made--the police cannot detain, search, or even touch loiterers, unless they have disobeyed an order to move on.(FN210) Few laws give the police less discretion when managing an encounter; and few laws give the civilian more ability to terminate an unpleasant encounter with the police.(FN211) The use of the dispersal order is a particularly significant innovation--this approach calls on police to assume an order-maintenance rather than arrest function in the first instance, and accordingly encourages police to view their job in terms other than maximizing the number of searches or arrests that they perform.(FN212) And in minority communities where there is strong support for greater order on the streetscape coupled with concern about the risk of police abuse, this approach may substantially enhance support for the police, especially if residents conclude that this approach embodies a type of rough justice by authorizing search or arrest only of those who have disobeyed a police order--a restraint frequently absent from other types of law enforcement tactics.

In short, for those concerned about police abuse, a policing strategy that directs police to warn loiterers to move on before they are subject to arrest and search fares strikingly well when considered in terms of the magnitude of the authority that it confers on the police. To be sure, groups of loiterers containing no one with a gang or drug affiliation may occasionally be inappropriately or unfairly ordered to disperse, but that inconvenience pales in comparison to being detained, searched, ticketed, or even arrested.(FN213) Even more important, to the extent that the police devote their limited resources to dispersal of loiterers, the use of much harsher sanctions will decrease. And for those who agree that inner-city drug trafficking is itself one of the legacies of racism, it should be critical to develop strategies that can revitalize inner-city communities without imposing the enormous costs that drug-law enforcement all too often impose.

All that said, I cannot deny that the potential for abuse of public order laws exists.(FN214) My point here is not that public order laws are immune to abuse, but rather that their critics have failed to consider the alternative. Equally important, they have failed to consider why aggressive policing is so frequently undertaken in inner-city minority communities. The explanation is a good deal more complicated than many of these critics acknowledge. An evaluation of inner-city policing would be at best incomplete without consideration of the political realities that confront urban police.

One fundamental reason that aggressive policing in the inner city is here to stay is that its residents want criminality in their midst to be suppressed. The point that I made earlier about the demand for greater law enforcement within the minority community cannot be overstressed.(FN215) The claim that law-enforcement strategy in this country reflects an effort by a white majority to subordinate persons of color simply does not reflect the reality of urban law enforcement. Most residents of inner-city neighborhoods, no different in this respect from anyone else, do not want to live in crime-ridden neighborhoods.(FN216) And that provides a useful context in which to evaluate the racial critique of inner-city policing.

Critics of inner-city policing should ponder what it is that they would have the police do. Consider, for example, the critical race theorists who argue that the criminal justice system ought to be forbidden to direct its efforts disproportionately against minorities.(FN217) There is little reason to believe this view is widely shared in the inner city; I am unaware of any evidence suggesting that the minority community itself seeks only a proportionate commitment of law enforcement resources to inner-city communities that experience a disproportionate share of crime. To the contrary, as I suggested earlier, polling evidence consistently indicates that African-Americans are more concerned about crime than nonminorities.(FN218) Whatever qualms minorities have about law enforcement--and there are qualms aplenty(FN219)--there is little evidence that they have translated into a view that the police should reduce their efforts to curb inner-city lawlessness.(FN220) Residents of gang-ridden communities know that withdrawing the police from their midst will not revitalize their communities but would instead make lawbreaking more profitable and attractive, enhancing its lure for inner-city youth.(FN221).

And when inner-city minority communities demand an end to drug and gang activity in their midst, public officials are left with little choice but to engage in increasingly aggressive policing, even though it is likely to target persons of color.(FN222) That, in turn, means that the police will necessarily measure their success by arrest and incarceration rates, and will continue to push the boundaries of the Fourth Amendment, at least if the only tools at their disposal are conventional criminal laws. Public order laws, accordingly, should be welcomed by those who care about racial justice--they provide the police with a strategy that does not depend on increasingly aggressive search and seizure, as well as mass incarceration, in order to disrupt entrenched criminal networks. And if anti-loitering laws succeed in making drug trafficking become more covert and less profitable, then the political pressure that leads to massive undercover operations and equally massive incarceration should abate concomitantly.

Finally, Chicago-style public order laws carry with them a greater measure of political legitimacy than many of the conventional law enforcement tactics now used in their stead. Conventional drug laws are enacted by state and federal governments far removed from and at best only marginally accountable to the inner city; and the minority community can rightly complain that it never consented to a program of anti-drug enforcement that falls so heavily and disproportionately upon it.(FN223) A post-Morales anti-loitering law, in contrast, must be adopted through open debate in the local political process. That, in turn, enhances the likelihood that the minority community will be an active partner in the adoption of these policies. Indeed, given the political influence that the minority community has come to wield in most urban areas, there is little reason to believe that its views can be safely ignored by elected officials in those areas.(FN224) Utilizing the local political process in this fashion not only adds to legitimacy, but for that reason may also enhance the efficacy of anti-loitering laws. It is well-accepted that the extent to which laws are seen as legitimate has a critical impact on the willingness of people to obey those laws.(FN225) Employing laws that are both less harsh and adopted through a process more directly accountable to the minority community can therefore only enhance legitimacy.

*****.

The enormous commitment of public resources directed at so-called "victimless" drug crimes in minority neighborhoods should make plain that something more complicated than simply racial subjugation is going on in urban policing--there is in fact a considerable commitment of law enforcement resources to the prosecution of crime in the minority community that does not affect whites in any direct way. The explanation, I have argued, is a function of urban politics--the inner-city minority community rightly demands that overt gang and drug criminality in its midst be curbed. In my view, without public order laws, the best we can realistically hope for is the enormously racially skewed status quo that conventional drug-law enforcement provides. It would be ironic if those who criticize public order laws on grounds of racial justice carried the day, only to find that they have left the police with nothing to offer high-crime, inner-city neighborhoods but the prospect of yet more mass incarceration--or more gang-related crime in those neighborhoods.

Inquiry into the ecology of the inner city, in my view, can teach much about inner-city crime and inner-city policing. Urban sociology tells us that gang criminality is not a figment of the overactive imaginations of racist police officers. Nor is it reflective of some sort of underclass pathology. It is instead an understandable, even rational response when coherent groups are given good reason to believe that legitimate opportunities for advancement are denied them. It is naive to think that the problems of the minority underclass can be solved without suppressing gang crime, which mightily contributes to the profound social isolation that Wilson and others have found afflicts the inner-city underclass. Critics of inner-city policing are right to claim that law enforcement tactics that are used disproportionately against minorities imperil the legitimacy of the criminal justice system-especially in the eyes of minorities-but surely a criminal justice system that is unable to suppress overt lawlessness in poor, disproportionately minority neighborhoods, while maintaining far greater security and stability in whiter, more affluent areas, is vulnerable to the same attack. Indeed, when the police are seen as content to let gangs run poor, disproportionately minority neighborhoods, a truly fundamental crisis of legitimacy is the inevitable result. But without public order laws, there is little one can expect but adherence to the harsh and punitive regime that the critics of public order laws must acknowledge we already have imposed in the inner city in an effort to combat the serious crime problems it confronts. Public order laws constitute the best opportunity we are likely to have to break the power of gangs with something short of mass incarceration. For that reason, they may well be the only credible alternative to the "get-tough" policies increasingly ascendant in the criminal justice arena, policies that only exacerbate our racial divide. To reject that alternative, leaving in place a harshly punitive and racially skewed regime, is the counsel of despair. And surely there has been quite enough of that when it comes to the plight of the inner cities.

Added material.

LAWRENCE ROSENTHAL.

Deputy Corporation Counsel, City of Chicago Department of Law. This article is the work of a partisan. I have been in law enforcement in Chicago for over sixteen years, both in my present position and previously as an Assistant United States Attorney for the Northern District of Illinois. I was involved in the drafting and defense of Chicago's original anti-gang loitering ordinance, and argued on behalf of the City of Chicago in defense of the ordinance before the United States Supreme Court in City of Chicago v. Morales. I also participated in the drafting of the new anti-gang loitering ordinance recently enacted by the Chicago City Council. The views expressed in this article are nevertheless my own and should not be attributed to the City of Chicago or its Department of Law. I must acknowledge a deep debt to the extraordinary group that have helped me to fashion this article. From academia, I must thank Dan Kahan, Debra Livingston, Tracey Meares, Geoffrey Stone, and David Strauss, who commented on drafts of this article and, in innumerable conversations, have been of immense help in enabling me to crystallize my own views. I was also enormously aided by the comments of a number of present and former prosecutors whom I consulted, including Scott Mendeloff, Norma Reyes, and Ronald Safer, as well as Deputy Superintendent of Police Harvey Radney, whose wisdom on the subject of gang crime I have found invaluable. I also am indebted to my colleague Benna Solomon and my spouse, Kate Sachnoff, for their comments and advice on earlier drafts, and, in Kate's case, for her indulgence during the many months that I worked on the article. I must also thank for their valuable suggestions the Research Fellows of the American Bar Association who participated in a seminar in which an earlier version of this article was presented.

FOOTNOTES1 527 U.S. 41 (1999).

2 The ordinance provided: "Whenever a police officer observes a person whom he reasonably believes to be a member of a criminal street gang loitering in any public place with one or more other persons, he shall order all such persons to disperse and remove themselves from the area." "Loiter" was defined as "to remain in any one place with no apparent purpose." Anyone who did not "promptly obey" an order to disperse was subject to a fine of between $100 and $500 or imprisonment of up to six months, or both, and could also be required to perform up to 120 hours community service in addition to or instead of the fine and imprisonment. Id. at 47 n.2.

3 Joan Biskupic, Supreme Court Strikes Anti-Loitering Ordinance; Law Aimed At Gangs Is Called Too Vague, WASH. POST, June 11, 1999, at A1.

4 The Court held that the ordinance was fatally vague because it granted police officers effectively unchecked discretion to determine what types of activities constituted "loitering" within the meaning of the ordinance. See 527 U.S. at 60-64. Four justices also expressed concerns about whether the ordinance supplied individuals with sufficient notice of what conduct it regulated. See id. at 56-60 (plurality opinion); id. at 69-70 (Kennedy, J., concurring in part and concurring in the judgment).

5 See Albert W. Alschuler & Stephen J. Schulhofer, Antiquated Procedures or Bedrock Rights? A Response To Professors Meares and Kahan, 1998 U. CHI. LEG. F. 215; David Cole, Foreword: Discretion and Discrimination Reconsidered: A Response to the New Criminal Justice Scholarship, 87 GEO. L.J. 1059 (1999); Bernard Harcourt, Reflecting on the Subject: A Critique of the Social Influence Conception of Deterrence, the Broken Windows Theory, and Order-Maintenance Policing New York Style, 97 MICH. L. REV. 291 (1998); Randall Kennedy, Guilty By Association, AM. PROSPECT, May-June 1997, at 66; Toni Massaro, The Gang's Not Here, 2 GREEN BAG 25 (1998); Dorothy E. Roberts, Foreword: Race, Vagueness, and the Social Meaning of Order-Maintenance Policing, 89 J. CRIM. L. & CRIMINOLOGY 775 (1999). See also Gary Stewart, Note, Black Codes and Broken Windows: The Legacy of Racial Hegemony in Anti-Gang Civil Injunctions, 107 YALE L.J. 2249 (1998); Matthew Mickle Werdegar, Note, Enjoining the Constitution: The Use of Public Nuisance Abatement Injunctions Against Urban Street Gangs, 51 STAN. L. REV. 409 (1999).

6 See Roberts, supra note 5, at 786-87, 799, 804-10.

7 Id. at 806.

8 See id. at 811-18.

9 Cole, supra note 5, at 1091.

10 527 U.S. at 62 (footnote omitted). An anti-loitering law limited to conduct with a harmful purpose or effect would also appear to resolve the concerns of a three-justice plurality about the adequacy of notice. The plurality reasoned that the order to disperse which was required under the ordinance failed to provide constitutionally appropriate notice because " i f the loitering is in fact harmless and innocent, the dispersal order itself is an unjustified impairment of liberty." Id. at 58. See also id. at 69-70 (Kennedy, J., concurring in part and concurring in the judgment). Confining a law to loitering with a harmful purpose or effect, then, would appear to solve this problem. To be sure, the plurality raised additional concerns about the sufficiency of notice because the ordinance did not specify how far and for how long loiterers must disperse, but the plurality acknowledged that " l ack of clarity in the description of a loiterer's duty to obey a dispersal order might not render the ordinance unconstitutionally vague if the definition of the forbidden conduct were clear ...." Id. at 59-60. To the extent that greater precision is required to detailing the obligation to disperse, that should prove no serious obstacle to the next generation of anti-loitering laws. In Cox v. Louisiana, 379 U.S. 559 (1965), the Court upheld a statute prohibiting demonstrations "near" a courthouse, "at least as applied to a demonstration within the sight and hearing of those in the courthouse." Id. at 568. It should follow that an ordinance directing the police to order loiterers to remove themselves from within sight and hearing of the location from which they have been ordered to leave will readily pass muster.

11 527 U.S. at 68 (O'Connor, J., concurring in part and concurring in the judgment). Justice O'Connor observed that had the ordinance been construed by the state courts to embody this standard, it should have been upheld: "Such a definition would be consistent with the Chicago City Council's findings and would avoid the vagueness problems of the ordinance as construed by the Illinois Supreme Court." Id. Justice O'Connor's view likely commands a majority of the Court, since it is consistent with the views of the Justices who would have upheld the ordinance. See id. at 89-95 (Scalia, J., dissenting); id. at 106-11 (Thomas, J., dissenting).

12 For a comprehensive account of state of the law prior to Morales, see Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts, Communities, and the New Policing, 97 COLUM. L. REV. 551, 595-650 (1997).

13 CHICAGO, ILL., MUNICIPAL CODE (section) 8-4-015(c)(1) (rev. 2000). The full text of this provision is:.

Whenever a police officer observes a member of a criminal street gang engaged in gang loitering with one or more other persons in any public place designated for the enforcement of this Section under subsection (b), the police officer shall, subject to all applicable procedures promulgated by the superintendent of police: (i) inform all such persons that they are engaged in gang loitering within an area in which loitering by groups containing criminal street gang members is prohibited; (ii) order all such persons to disperse and remove themselves from within sight and hearing of the place at which the order was issued; and (iii) inform those persons that they will be subject to arrest if they fail to obey the order promptly or engage in further gang loitering within sight or hearing of the place at which the order was issued during the next three hours.

Id. (section) 8-4-015(a).

14 Id. at (section) 8-4-015(d)(1).

15 Compare id. (section) 8-4-015(d)(2) with 18 U.S.C. (section) 1961 (2000).

16 The anti-drug loitering ordinance authorizes dispersal orders when individuals "remain in any one place under circumstances that would warrant a reasonable person to believe that the purpose or effect of that behavior is to facilitate the distribution of substances in violation of the Cannabis Control Act or the Illinois Controlled Substances Act." CHICAGO, ILL., MUNICIPAL CODE (section) 8-4-017(c)(1) (rev. 2000).

17 See Dirk Johnson, Chicago Tries Anew With Anti-Gang Ordinance, N.Y. TIMES, Feb. 22, 2000, at A14. See also Livingston, supra note 12, at 573-91.

18 For similar assessments of the extent to which the decision in Morales permits state and local governments to enact new public order laws, see, e.g., Craig M. Bradley, The Changing Face of Criminal Procedure, TRIAL, Oct. 1999, at 84; Dan M. Kahan & Tracey L. Meares, Public-Order Policing Can Pass Constitutional Muster, WALL ST. J., June 15, 1999, at A18; Debra Livingston, Gang Loitering, The Court, and Some Realism About Police Patrol, 1999 SUP. CT. REV. 141, 190-91; Erik Luna, Constitutional Road Maps, 90 J. CRIM. L. & CRIMINOLOGY 1125, 1134-49 (2000); Mark Tushnet, The Supreme Court, 1998 Term-Foreword: The New Constitutional Order and the Chastening of Constitutional Aspiration, 113 HARV. L. REV. 29. 93-94 (1999); Note, The Supreme Court, 1998 Term-Leading Cases, 113 HARV. L. REV. 200, 285-86 (1999); Note, Angela L. Clark, City of Chicago v. Morales: Sacrificing Individual Liberty Interests for Community Safety, 31 LOY. U. CHI. L.J. 113, 144-47 (1999); Note, Matt Wawrzyn, Chicago v. Morales: Constitutional Principles at Loggerheads with Community Action, 50 DEPAUL L. REV. 371, 411-18 (2000).

19 The classic statement of this policing theory is the "Broken Windows" thesis, which argues that signs of visible disorder in the streetscape stimulate the commission of more serious crime. See James Q. Wilson & George L. Kelling, Broken Windows, ATLANTIC MONTHLY, Mar. 1982, at 31-38. See also, e.g., GEORGE L. KELLING & CATHERINE M. COLES, FIXING BROKEN WINDOWS: RESTORING ORDER AND REDUCING CRIME IN OUR COMMUNITIES 71-107 (1996); WESLEY G. SKOGAN, DISORDER AND DECLINE 9-10, 51-57, 73-75, 85-124 (1990); JEROME H. SKOLNICK & DAVID H. BAYLEY, U.S. DEP'T OF JUSTICE, COMMUNITY POLICING: ISSUES AND PRACTICES AROUND THE WORLD 4-19 (1988).

20 See Dan M. Kahan & Tracey L. Meares, Foreword: The Coming Crisis of Criminal Procedure, 86 GEO. L.J. 1153 (1998) hereinafter cited as "Kahan & Meares, The Coming Crisis" ; Dan M. Kahan, Social Influence, Social Meaning, and Deterrence, 83 VA. L. REV. 349 (1997); Tracey L. Meares & Dan M. Kahan, The Wages of Antiquated Procedural Thinking: A Critique of Chicago v. Morales, 1998 U. CHI. LEG. F. 197 hereinafter cited as "Meares & Kahan, Wages" ; Tracey L. Meares, Social Organization and Drug Law Enforcement, 35 AM. CRIM. L. REV. 191 (1998).

21 See, e.g., Harcourt, supra note 5, at 308-42.

22 See, e.g., Cole, supra note 5, at 1074-82; Roberts, supra note 5, at 803-10.

23 I use the term "underclass" in the sense that it has been employed by William Julius Wilson, the leading academic expositor of this concept. Professor Wilson has used this term to describe the impoverished residents of inner-city, predominantly minority communities inhabited by large numbers of persons lacking significant training and skills and who have experienced long-term unemployment; street criminals; and families that experience lengthy periods of poverty and reliance on welfare. See WILLIAM JULIUS WILSON, THE TRULY DISADVANTAGED: THE INNER CITY, THE UNDERCLASS, AND PUBLIC POLICY 7-8 (1987). Most other scholars use the term in similar ways. See, e.g., CHRISTOPHER JENCKS, RETHINKING SOCIAL POLICY: RACE, POVERTY, AND THE UNDERCLASS 144-49 (1992); Paul A. Jargowsky & Mary Jo Bane, Ghetto Poverty in the United States, 1970-1980, in THE URBAN UNDERCLASS 235-39 (Christopher Jencks & Paul E. Peterson eds., 1991) hereinafter cited as "THE URBAN UNDERCLASS" .

24 When I refer to the term "gang," I reference the concept as it is employed by the Chicago Police Department--an association of individuals that exhibits in varying degrees four characteristics: a gang name and recognizable symbols, a geographic territory, a regular meeting pattern, and an organized, continuing course of criminality. See ILL. CRIM. JUSTICE INF. AUTH., RESEARCH BULLETIN: STREET GANGS AND CRIME-PATTERNS AND TRENDS IN CHICAGO 2 (Sep. 1996). I will also refer to Chicago Police Department statistics for gang-related crime. The Chicago Police Department defines an offense as gang related when the preponderance of the evidence reflects a gang-related motivation. See id. at 2-3. This is a particularly stringent test, since it is unsatisfied merely by evidence that the victim or offender has a gang affiliation, which is the approach utilized in most jurisdictions. See Cheryl L. Maxson & Malcolm W. Klein, Defining Gang Homicide, in GANGS IN AMERICA 6 (C. Ronald Huff ed., 1996 ed.) hereinafter cited as "GANGS IN AMERICA 1996 ED." .

25 See, e.g., HERBERT C. COVEY, SCOTT MENARD & ROBERT j. FRANZESE, JUVENILE GANGS 3-13 (2d ed. 1997); G. DAVID CURRY & SCOTT H. DECKER, CONFRONTING GANGS: CRIME AND COMMUNITY 2-6 (1998). For example, the United States Department of Justice's National Youth Gang Survey leaves it to each responding law enforcement agency to decide for itself what it is willing to classify as a "gang," excluding motorcycle gangs, hate or ideology groups, prison gangs, and exclusively adult gangs. See OFFICE OF JUVENILE JUSTICE & DELINQUENCY PREVENTION, U.S. DEP'T OF JUSTICE, 1998 NATIONAL YOUTH GANG SURVEY: SUMMARY 6 (Dec. 2000) hereinafter cited as "1998 NATIONAL YOUTH GANG SURVEY" .

26 See id. at 12. The Survey reported that 60 percent of gang members were adults and 40 percent were juveniles. See id. at 14-15. Law enforcement agencies in large cities and suburban counties reported a higher average proportion of adult gang members, id. at 15, and the average percentage of adult gang members increased substantially as the population of the reporting jurisdiction increased. Id. 15-16. Females accounted for 8 percent of gang members and female membership was lowest in large cities. Id. at 17.

27 See G. DAVID CURRY, RICHARD A. BALL & ROBERT J. FOX, U.S. DEP'T OF JUSTICE, GANG CRIME AND LAW ENFORCEMENT RECORDKEEPING (Aug. 1994).

28 See Gangs: A National Crisis: Hearing on S.54 Before the Senate Comm. on the Judiciary, 105th Cong., 51 (April 23, 1997) (statement of James Mulvihill).

29 See U.S. Attorney's Office, N.D. Ill., U.S. Dep't of Justice, Anti-Violent Crime Initiative Fact Sheet for the Northern District of Illinois (1996) (unpublished release on file with author).

30 See IRVING A. SPERGEL, THE YOUTH GANG PROBLEM: A COMMUNITY APPROACH 31-33 (1995).

31 See NATIONAL CENTER FOR EDUCATION STATISTICS & BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF EDUC. & U.S. DEP'T OF JUSTICE, INDICATORS OF SCHOOL CRIME AND SAFETY: 1999 32-33 (Sep. 1999). See also BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, STUDENTS' REPORTS OF SCHOOL CRIME: 1989 AND 1995 8-9 (Apr. 1998). This data is based only on the proportion of students responding affirmatively when asked if there were street gangs at their school. When the data was reexamined for a broader measure of gang presence, including respondents who stated that gang members attended their schools or that gang members have been around their schools within the past six months, 37 percent of all students answered affirmatively, and over 50 percent of students residing in cities with a population of more than 50,000 answered affirmatively. See JAMES C. HOWELL & JAMES P. LYNCH, U.S. DEP'T OF JUSTICE. YOUTH GANGS IN SCHOOLS 2, 3-4 (Aug. 2000).

32 OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION, U.S. DEP'T OF JUSTICE, 1997 NATIONAL YOUTH GANG SURVEY: SUMMARY 15 (Dec. 1999) hereinafter cited as "1997 NATIONAL YOUTH GANG SURVEY" . The survey found a statistically significant relationship between the reporting jurisdiction's population and the rate of gang homicide. See id. at 16. The 1998 Survey did not attempt to estimate the number of gang-related homicides. See 1998 NATIONAL YOUTH GANG SURVEY, supra note 25, at 26.

33 1997 NATIONAL YOUTH GANG SURVEY, supra note 32, at 15.

34 JAMES ALAN FOX & MARIANNE W. ZAWITZ, U.S. DEP'T OF JUSTICE, HOMICIDE TRENDS IN THE UNITED STATES: 1998 UPDATE 2 (Mar. 2000).

35 See 1998 NATIONAL YOUTH GANG SURVEY, supra note 25, at 14. There is also some reason to believe that gang-related homicide has not declined as fast as the overall homicide rate in recent years. Among cities with populations in excess of 25,000 that reported gang problems and gang homicides from 1996 through 1998, 49 percent reported a decrease in gang-related homicides, 15 percent reported no change, and 36 percent reported an increase. See id. at 26-27.

36 See SARA R. BATTIN-PEARSON ET AL., U.S. DEP'T OF JUSTICE, GANG MEMBERSHIP, DELINQUENT PEERS, AND DELINQUENT BEHAVIOR 3-4, 5-8 (Oct. 1998); COVEY, MENARD & FRANZESE, supra note 25, at 35-37; CURRY & DECKER, supra note 25, at 55-58; JAMES C. HOWELL, U.S. DEP'T OF JUSTICE, YOUTH GANGS: AN OVERVIEW 9-10 (April 1998); C. RONALD HUFF, U.S. DEP'T OF JUSTICE, COMPARING THE CRIMINAL BEHAVIOR OF YOUTH GANGS AND AT-RISK YOUTHS 4 (Oct. 1998); MALCOLM W. KLEIN, THE AMERICAN STREET GANG; ITS NATURE, PERVALENCE, AND CONTROL 112-16 (1995); SPERGEL, supra note 30, at 40-42; C. Ronald Huff, The Criminal Behavior of Gang Members and Nongang At-Risk Youth, in GANGS IN AMERICA 1996 ED., supra note 24, at 83-87; Sara R. Battin et al., The Contribution of Gang Membership To Delinquency Beyond Delinquent Friends, 36 CRIMINOLOGY 93 (1998); Terence B. Thornberry et al., The Role of Juvenile Gangs in Failiating Delinquent Behavior, 30 J. RES. CRIME & DELINQ. 55 (1993).

37 See, e.g., U.S. DEP'T OF JUSTICE, ATTORNEY GENERAL'S REPORT TO THE PRESIDENT: A COORDINATED APPROACH TO THE CHALLENGE OF GANG VIOLENCE: A PROGRESS REPORT 1 (April 1996); KLEIN, supra note 36, at 90-99; SPERGEL, supra note 30, at 34-36; Jeffrey Fagan, Gangs, Drugs, and Neighborhood Change, in GANGS IN AMERICA 1996 ED., supra note 24, at 44-46; Walter B. Miller, Why The United States Has Failed To Solve Its Youth Gang Problem, in GANGS IN AMERICA 263 (C. Ronald Huff ed., 1990 ed.) hereinafter cited as "GANGS IN AMERICA 1990 ED." .

38 See, e.g., COVEY, MENARD & FRANZESE, supra note 25, at 46-48; HOWELL, supra note 36, at 10; SPERGEL, supra note 30, at 35-36; Fagan, supra note 37, at 45. See also Beth Bjerrgaard & Alan J. Lizotte, Gun Ownership and Gang Membership, 86 J. CRIM. L. & CRIMINOLOGY 37 (1995). See generally TOM DIAZ, MAKING A KILLING: THE BUSINESS OF GUNS IN AMERICA 91-105 (1999). For example, in Chicago, between 1987 and 1994 firearms were used in 96 percent of all gang-related homicides, and researchers attribute the increased mortality rate of gang-related shootings during this period to the increasing use of semi or fully automatic firearms than had been utilized in gang-related shootings in prior years. See ILL. CRIM. JUSTICE INF. AUTH., supra note 24, at 16-17.

39 U.S. DEP'T OF JUSTICE, supra note 37, at 1. See also CATHERINE H. CONLY, U.S. DEP'T OF JUSTICE, STREET GANGS: CURRENT KNOWLEDGE AND STRATEGIES 12-13 (1993).

40 See JOAN W. MOORE, GOING DOWN TO THE BARRIO: HOMEBOYS AND HOMEGIRLS IN CHANGE 60 (1991); WILLIAM B. SANDERS, GANGBANGS AND DRIVE-BYS: GROUNDED CULTURE AND JUVENILE GANG VIOLENCE 67-68 (1994). See also KLEIN, supra note 36, at 117-18; ILL. CRIM. JUSTICE INF. AUTH., supra note 24, at 17-18.

41 ILL. CRIM. JUSTICE INF. AUTH., supra note 24, at 13. For example:.

In Chicago, an 11 year old boy sought to impress members of his gang by shooting at rival gang members. He missed, instead killing a 14 year old girl and wounding two other bystanders. Four days later, he was executed for his mistake with two bullets to the head--by his own gang members.

U.S. DEP'T OF JUSTICE, supra note 37, at 1.

42 C. Ronald Huff, Gangs in the United States, in THE GANG INTERVENTION HANDBOOK 13 (Arnold P. Goldstein & C. Ronald Huff eds., 1993).

43 HOWELL, supra note 36, at 10 (citation omitted); see also, e.g., Gary W. Bailey & W. Pradha Unnithan, Gang Homicides in California: A Discriminant Analysis, 22 J. CRIM. JUSTICE 267 (1994); Malcolm W. Klein, Cheryl L. Maxson & Lea C. Cunningham, "Crack," Street Gangs, and Violence, 29 CRIMINOLOGY 623 (1991); Cheryl L. Maxson, Morse A. Gordon & Malcolm W. Klein, Differences Between Gang and Nongang Homicide, 23 CRIMINOLOGY 209 (1985).

44 See 1998 NATIONAL YOUTH GANG SURVEY, supra note 25, at 28, 33. See also, e.g., Gangs: A National Crisis: Hearing on S. 54 Before the Senate Comm. on the Judiciary, 105th Cong. 12-13 (1997) (statement of Steven R. Wiley, Chief of Violent Crimes and Major Offender Section, FBI); The Gang Problem in America: Formulating an Effective Federal Response: Hearing Before the Subcomm. on Juv. Just. of the Senate Comm. on the Judiciary, 103rd Cong. 14-15 (1994) (statement of James C. Frier, Deputy Ass't Dir., FBI); AL VALDEZ, GANGS: A GUIDE TO UNDERSTANDING STREET GANGS 126-27, 233 (1997). Respondents to the 1997 National Youth Gang Survey estimated that nationwide 42 percent of all youth gangs were involved in the sale of drugs in order to generate profits for the gang. See 1997 NATIONAL YOUTH GANG SURVEY, supra note 32, at 22-23. In large cities, the figure was 49 percent. See id. The 1997 Survey produced a nationwide estimate that gang members conducted 33 percent of all crack cocaine sales, 32 percent of all marijuana sales, 16 percent of all powder cocaine sales, 12 percent of all methamphetamine sales, and 9 percent of all heroin sales. See id. at 27-28.

45 See, e.g., COVEY, MENARD & FRANZESE, supra note 25, at 51-54; SCOTT H. DECKER & BARRJCK VAN WINKLE, LIFE IN THE GANG; FAMILY, FRIENDS AND VIOLENCE 153-71 (1996); JOHN M. HAGEDORN, PEOPLE AND FOLKS: GANGS, CRIME, AND THE UNDERCLASS IN A RUSTBELT CITY 103-05 (1988); JAMES C. HOWELL & SCOTT h. DECKER, U.S. DEP'T OF JUSTICE, THE YOUTH GANGS, DRUGS, AND VIOLENCE CONNECTION 2-5, 7 (Jan. 1999); HUFF, supra note 36, at 4, 7; MARTIN SANCHEZ JANKOWSKI, ISLANDS IN THE STREET: GANGS AND AMERICAN URBAN SOCIETY 120-21 (1991); JOAN W. MOORE, HOMEBOYS: GANGS, DRUGS AND PRISON IN THE BARRIOS OF LOS ANGELES 75-93 (1978); FELIX M. PADILLA, THE GANG AS AN AMERICAN ENTERPRISE 97-117, 129-51 (1993); CARL S. TAYLOR, DANGEROUS SOCIETY 92, 97, 99 (1990); Huff, supra note 36, at 83-90; Ronald Glick, Survival, Income, and Status: Drug Dealing in the Chicago Puerto Rican Community, in DRUGS IN HISPANIC COMMUNITIES 77-101 (Ronald Glick & Joan Moore eds., 1990); Jerome H. Skolnick, Ricky Bluthenal & Theodore Correl, Gang Organization and Migration, in GANGS: THE ORIGIN AND IMPACT OF CONTEMPORARY YOUTH GANGS IN THE UNITED STATES 193-202 (Scott Cummings & Daniel J. Monti eds., 1993) hereinafter cited as "GANGS" ; Carl S. Taylor, Gang Imperialism, in GANGS IN AMERICA 1990 ED., supra note 37, at 103-15; Finn-Aage Esbensen & David Huizinga, Gangs, Drugs, and Delinquency in a Survey of Urban Youth, 31 CRIMINOLOGY 565, 573-75 (1993); Jeffrey Fagan, The Social Organization of Drug Use and Drug Dealing Among Urban Gangs, 27 CRIMINOLOGY 633, 635, 648-51 (1989) hereinafter cited as "Fagan, Social Organization" ; John M. Hagedorn, Homeboys, Dope Fiends, Legits, and New Jacks, 32 CRIMINOLOGY 197 (1995); Tom Mieczkowski, Geeking Up and Throwing Down: Heroin Street Life in Detroit, 24 CRIMINOLOGY 645 (1986). To be sure, there are skeptics about the relationship between drug sales and gangs who observe that many gangs exhibit levels of disorganization inconsistent with efficient distribution of narcotics, but even the skeptics acknowledge that larger and more sophisticated inner-city gangs are more likely to be organized around drug sales. See, e.g., KLEIN, supra note 36, at 126-35.

46 JANKOWSKI, supra note 45, at 120 (footnote omitted).

47 Walter Miller is one of the few academics to note the significance of this aspect of gang crime. See Miller, supra note 37, at 266. The leading example of openly conducted gang activity involves the control of turf in order to facilitate the sale of narcotics, a phenomenon considered at some length in Part III, infra.

48 See Kahan, supra note 20, at 391.

49 The prevalence of gang intimidation also is part of what makes gangs particularly successful at narcotics distribution, a point I will explore in Part III, infra.

50 This fact also explains why it is so difficult to mount a discrimination case against a law that makes gang membership a basis for prosecution--the fact that those prosecuted are disproportionately minority will not support a claim of selective prosecution absent a showing, at a minimum, that minorities have been selected for prosecution out of proportion to their representation among the universe of gang members. See, e.g., United States v. Turner, 104 F.3d 1180, 1185 (9th Cir. 1997); United States v. Bourgeois, 964 F.2d 935, 941 (9th Cir. 1992); United States v. Trent, 718 F. Supp. 39, 41 (D. Or. 1989). See generally United States v. Armstrong, 517 U.S. 456, 463-71 (1996).

51 1998 NATIONAL YOUTH GANG SURVEY, supra note 25, at 20. These percentages were even higher in large cities. See id. at 21.

52 G. DAVID CURRY, RICHARD A. BALL & ROBERT J. FOX, U.S. DEP'T OF JUSTICE, GANG CRIME AND LAW ENFORCEMENT RECORDKEEPING 9 (Aug. 1994).

53 See WALTER B. MILLER, U.S. DEP'T OF JUSTICE, CRIME BY YOUTH GANGS AND GROUPS IN THE UNITED STATES 76-79 (1992).

54 See CURRY & DECKER, supra note 25, at 73-74; KLEIN, supra note 36, at 105-10; Finn-Aage Esbenson & L. Thomas Winfree, Race and Gender Differences Between Gang and Nongang Youth: Results from a Multisite Survey, 15 JUSTICE Q. 505 (1998).

55 HOWELL & LYNCH, supra note 31, at 3.

56 See ILL. CRIM. JUSTICE INF. AUTH., supra note 24, at 7.

57 See SPERGEL, supra note 30, at 37-40. In general, the National Crime Victimization Survey has found that African-Americans are significantly more likely to be victims of both violent and property crime than are nonminorities. See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, CRIMINAL VICTIMIZATION 1999: CHANGES 1998-99 WITH TRENDS 1993-99 6, 9 (Aug. 2000). Hispanics are significantly more likely to be the victims of property crimes crimes than are nonminorities but only slightly more likely to be victims of violent crime. Id. at 6, 9. This pattern has persisted since 1993. Id. at 13, fig. 3, 4, 7, 8.

58 See ILL CRIM. JUSTICE INF. AUTH., supra note 24, at 5.

59 To be fair, Professors Kahan and Meares have made this point, but they appear to be about the only legal scholars aware of it. See Kahan & Meares, The Coming Crisis, supra note 20, at 1162-63; Meares & Kahan, Wages, supra note 20, at 208. Ethnographers, however, are well aware of this phenomenon. For example, it appears repeatedly in Sudhir Venkatesh's recent study of a Chicago housing project. See, e.g., SUDHIR ALLADI VENKATESH, AMERICAN PROJECT: THE RISE AND FALL OF A MODERN GHETTO 68-77 (2000).

60 For example, in a 1999 survey, the National Opinion Research Center ("NORC") found that 70 percent of African-Americans but only 59 percent of whites thought that too little is spent to fight crime. See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS: 1999 126-27 tbl. 2.54 (Nov. 2000) hereinafter cited as "1999 SOURCEBOOK" . This pattern has persisted in each of the annual surveys since 1983. See id. Similarly, the Department of Justice's polling data indicates that the percentage of African-American households citing crime as a problem in their neighborhoods is about two and one-half times higher than for nonminority households, and even in central cities the percentage of African-American households citing crime as a neighborhood problem is about 50 percent higher than for nonminority households. See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, PERCEPTIONS OF NEIGHBORHOOD CRIME, 1995 1-2 (April 1998). Thus it comes as no surprise, at least to me, that in Chicago, attendance at beat meetings in Chicago's community-policing program is "highest in the city's African-American beats and lowest--once population is taken into account--in predominantly white areas." CHICAGO COMMUNITY POLICING EVALUATION CONSORTIUM, ILL. CRIM. JUSTICE INF. AUTH., COMMUNITY POLICING IN CHICAGO, YEARS FIVE AND SIX: AN INTERIM REPORT 19 (May 1999). To similar effect, a reporter following narcotics enforcement in Harlem for the New York Times recently observed:.

It's supposedly common knowledge: black New Yorkers distrust the police. But on the streets where Sergeant Brogli works, the biggest supporters of the police are African-American. In the last 15 years, this neighborhood may have changed from primarily African-American to Dominican, but the citizens council that meets monthly at the local precinct, the 30th, is headed by an African-American, Hazel O'Reilly, and dominated by African-Americans. At council meetings it is mainly black residents who attend to ask for more police enforcement, more drug arrests, who want more people jailed for loitering and trespassing.

Michael Winerip, Why Harlem Drug Cops Don't Discuss Race, N.Y. TIMES, July 9, 2000, at Al, 11 (emphasis in original). See also Blaine Harden, On Edge but Optimistic, New York Blacks Offer Complex Views in Poll, N.Y. TIMES, June 28, 2000, at B1.

61 See, e.g., ROBERT J. BURSIK, JR. & HAROLD G. GRASMICK, NEIGHBORHOODS AND CRIME: THE DIMENSIONS OF EFFECTIVE COMMUNITY CONTROL 15-18, 34-57 (1993).

62 HAGEDORN, supra note 45, at 25-26 (footnote omitted).

63 FREDERICK M. THRASHER, THE GANG: A STUDY OF 1,313 GANGS IN CHICAGO (1927). See generally, e.g., BURSIK & GRASMICK, supra note 61, at 119-21; Daniel J. Monti, Origins and Problems of Gang Research in the United States, in GANGS, supra note 45, at 4-17.

64 See THRASHER, supra note 63. Thrasher's account of the origin and function of gangs is enormously rich and suggestive, and deserves to be quoted at some length:.

Gangs represent the spontaneous effort of boys to create a society for themselves where none adequate to their needs exists. What boys get out of such association that they do not get otherwise under the conditions that adult society imposes is the thrill and zest of participation in common interests, more especially in corporate action, in hunting, capture, conflict, flight, and escape. Conflict with other gangs and the world about them furnishes the occasion for many of their exciting group activities.

The failure of the normally directing and controlling customs and institutions to function efficiently in the boy's experience is indicated by the disintegration of family life, inefficiency of schools, formalism and externality of religion, corruption and indifference in local politics, low wages and monotony in occupational activities, and lack of opportunity for wholesome recreation. All these factors enter into the picture of the moral and economic frontier, and, coupled with deterioration in housing, sanitation, and other conditions of life in the slum, give the impression of general disorder and decay.

The gang functions with reference to these conditions in two ways: It offers a substitute for what society fails to give; and it provides relief from suppression and distasteful behavior. It fills a gap and affords an escape. Here again we may conceive of it as an interstitial group providing interstitial activities for its members. Thus the gang, itself a natural and spontaneous type of organization arising through conflict, is a symptom of disorganization in the larger social framework.

Id. at 37-38 (footnotes omitted).

65 See, e.g., ALBERT K. COHEN, DELINQUENT BOYS: THE CULTURE OF THE GANG (1955); RICHARD A. CLOWARD & LLOYD E. OHLIN, DELINQUENCY AND OPPORTUNITY: A THEORY OF DELINQUENT GANGS (1960); Walter B. Miller, Lower Class Culture as a Generating Milieu of Gang Delinquency, 14 J. SOC. ISSUES 5 (1958); Hyman Rodman, The Lower Class Value Stretch, 42 SOC. FORCES 205 (1963). This work, in turn, built upon the work of Clifford Shaw and Henry McKay, who had demonstrated that delinquency rates were related to the economic and social characteristics of inner-city communities. See BURSIK & GRASMICK, supra note 61, at 25-38. See also CLIFFORD R. SHAW & HENRY D. MCKAY, JUVENILE DELINQUENCY IN URBAN AREAS (1942).

66 See CLOWARD & OHLIN, supra note 65, at 80-82.

67 Id. at 78.

68 Id. at 85. In particular, Cloward and Ohlin argued, lower-class youths frequently perceive that their educational opportunities are limited. See id. at 97-99.

69 Id. at 104. Cloward and Ohlin noted that among lower-class youths, sports or entertainment is frequently thought of as an alternative route to success by legitimate means, but eventually they discover that relatively few persons can succeed through these routes. See id. at 104-05.

70 Id. at 105. As Cloward and Ohlin put it: " D emocratizing the criteria for evaluation without at the same time increasing the opportunities available to lower-class youngsters will accentuate the conditions that produce feelings of unjust deprivation." Id. at 120-21.

71 See id. at 113-21.

72 See id. at 125-30.

73 See id. at 130-39. Similarly, Cloward and Ohlin contended that the pressures toward delinquency were greatest when individuals attribute "the cause of failure to the social order rather than to oneself, for the way in which one explains his failure largely determines what he will do about it." Id. at 111.

74 See id. at 119-21. They supported this argument in particular with reference to the barriers confronting African-Americans. See id. at 121-24.

75 See id. at 166.

76 See id. at 161-71. Cloward and Ohlin argued that the stability of the criminal structure in a neighborhood is essential to the formation of this subculture: "Only those neighborhoods where crime flourishes as a stable, indigenous institution are fertile criminal learning environments for the young." Id. at 148.

77 See id. at 171-72. The less stable the neighborhood, the more likely a conflict subculture would develop: "Transiency and instability, in combination, produce powerful pressures for violent behavior among the young in these areas." Id. at 172. See also id. at 175-78. As for the factors that promote instability, Cloward and Ohlin explained:.

The many forces making for instability in the social organization of some slum areas include high rates of vertical and geographic mobility; massive housing projects in which "site tenants" are not accorded priority in occupancy, so that traditional residents are dispersed and "strangers" reassembled; and changing land use, as in the case of residential areas that are encroached upon by the expansion of adjacent commercial or industrial areas. Forces of this kind keep a community off-balance, for tentative efforts to develop social organization are quickly checked.

Id. at 172. Cloward and Ohlin also described what they labeled as the "retreatist subculture," in which individuals perceive themselves to have limited opportunities for advancement through both legitimate and illegitimate means, and therefore abandon any hope of advancement, frequently turning to drug use. See id. at 179-84.

78 Id. at 203.

79 See id. at 204-11.

80 Id. at 211. The view that the degree of social organization in an underclass neighborhood has an important relationship to crime (recently stressed by Professors Kahan and Meares, see, e.g., Kahan, supra note 20, at 355-61; Meares, supra note 20, at 194-98), is consistent with the view that limited economic opportunities available to the underclass provide a powerful stimulant to gang crime. Social organization theory does not purport to explain what causes people to turn to crime, but rather how social controls can deter such persons from committing crimes, and it is the absence of social organization in many underclass communities that prevents them from developing the public and private infrastructure necessary to provide legitimate opportunities to neighborhood youth. See BURSIK & GRAMSICK, supra note 61, at 143-46; COVEY, MENARD & FRANZESE, supra note 25, at 215-16.

81 See WILSON, supra note 23, at 3-19.

82 See CLOWARD & OHLIN, supra note 65, at 171-72.

83 WILSON, supra note 23, at 8.

84 See, e.g., id. at 26-46.

85 See id. at 39-46, 57-58, 100-04; WILLIAM JULIUS WILSON, THE DECLINING SIGNIFICANCE OF RACE: BLACKS AND CHANGING AMERICAN INSTITUTIONS 92-99, 113-15, 169 (2d ed. 1980).

86 See WILLIAM JULIUS WILSON, WHEN WORK DISAPPEARS: THE WORLD OF THE NEW URBAN POOR 87-94 (1996); WILSON, supra note 23, at 26-29, 66-71; WILSON, supra note 85, at 132, 158.

87 See WILSON, supra note 86, at 91-94; WILSON, supra note 23, at 26-29, 71-72; WILSON, supra note 85, at 130-34. Moreover, inculcating values that stress the importance of work is all the more difficult because so many families in underclass neighborhoods have only one parent present, making supervision of children more difficult. See WILSON, supra note 86, at 93-94; WILSON, supra note 23, at 74-76. Even when two parents are present, supervision of children is much more difficult in disordered underclass neighborhoods. See WILSON, supra note 86, at 62-64.

88 See, e.g., WILSON, supra note 86, at 13-17, 65-72; WILSON, supra note 85, at 151-54. 156-58.

89 WILSON, supra note 23, at 56. Moreover, the pervasive instability in underclass neighborhoods reinforces social isolation: " T he communities of the underclass are plagued by massive joblessness, flagrant and open lawlessness, and low-achieving schools, and therefore tend to be avoided by outsiders." Id. at 58.

90 Id. at 8.

91 See id. at 56.

92 See WILSON, supra note 86, at 72-86. Residents therefore do not pursue educational or employment opportunities because they become hopeless. See id. at 137-45; WILSON, supra note 85, at 107-10.

93 See WILSON, supra note 86, at 111-45.

94 See id. at 25-34, 145-46.

95 See WILSON, supra note 23, at 57-62.

96 See WILSON, supra note 85, at 108.

97 See WILSON, supra note 23, at 21-23; WILSON, supra note 86, at 22-25. See also Lauren J. Krivo & Ruth D. Peterson, Extremely Disadvantaged Neighborhoods and Urban Crime; 75 SOC. FORCES 619 (1996).

98 See Robert J. Sampson & William Julius Wilson, Toward a Theory of Race, Crime, and Urban Inequality, in CRIME AND INEQUALITY 40-44 (John Hagan & Ruth D. Peterson eds., 1995) hereinafter cited as "CRIME AND INEQUALITY" .

99 See generally Joan Moore, Is There a Hispanic Underclass?, 70 SOC. SCIENCE Q. 265 (1989); Anne M. Santiago & Margaret G. Wilder, Residential Segregation and the Links to Minority Poverty: The Case of Latinos in the United States, 38 SOC. PROBS. 492 (1991); Joan Moore & Raquel Pinderhughes, Introduction, in IN THE BARRIOS: LATINOS AND THE UNDERCLASS DEBATE x-xxxix (Joan Moore & Raquel Pinderhughes eds., 1993).

100 The most recent statistics available from the Bureau of the Census indicate that while 11.8 percent of the population lives in poverty, see BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, POVERTY IN THE UNITED STATES: 1999 vii (Sep. 2000), the figure is 22.8 percent for Hispanics and 23.6 percent for African-Americans, see id. at vii-x. The poverty rate for white non-Hispanics was 7.7 percent, about one-third of the poverty rate for African-Americans and Hispanics. See id. at x.

101 See WILSON, supra note 86, at 111-45.

102 See DOUGLAS S. MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS 7-9, 118-47 (1993). Wilson has also acknowledged the role that this form of racial segregation has played in creating a disproportionately minority underclass. See Sampson & Wilson, supra note 98, at 43-44.

103 See, e.g., KEN AULETTA, THE UNDERCLASS 20-50 (1982); DOUGLAS G. GLASGOW, THE BLACK UNDERCLASS: POVERTY, UNEMPLOYMENT AND ENTRAPMENT OF GHETTO YOUTH 3-15 (1981); Paul E. Peterson, The Urban Underclass and the Poverty Paradox, in THE URBAN UNDERCLASS, supra note 23, at 15-25.

104 See BUREAU OF THE CENSUS, supra note 100, at B-7 tbl. B-2. Income inequality also has risen over the last thirty years. The lowest quintile's share of household income declined from 4.0 percent in 1970 to 3.6 percent in 1999. See BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, MONEY INCOME IN THE UNITED STATES: 1999 xii tbl. C (Sep. 2000).

105 For a useful review of the evidence that engaging in illegal activity constitutes a rational economic decision for many members of the minority underclass, see Jeffrey Fagan & Richard Freeman, Crime and Work, in CRIME & JUSTICE: A REVIEW OF RESEARCH 245-57 (Michael Tonry ed., 1999). One of the few studies to examine the economics of gang-related drug trafficking confirms this view. Professors Levitt and Venkatesh obtained the records of a large African-American gang involved in drug trafficking, and found that the wage structure of the gang was highly skewed, with foot soldiers' earnings at or below minimum wage but superiors earning much higher relative wages than typically found in the private sector. See Steven D. Levitt & Sudhir Alladi Venkatesh, An Economic Analysis of a Drug-Selling Gang's Finances, 115 Q.J. ECON. 755, 769-75 (2000). They add: "Given the enormous gap between the wages of the foot soldiers and those higher up in the gang, the most reasonable way to view the economic aspects of the decision to join the gang is as a tournament, i.e., a situation in which the participants vie for large awards that only a small fraction will eventually obtain." Id. at 773 (citation omitted).

106 See CLOWARD & OHLIN, supra note 65, at 105.

107 For a particularly useful discussion of the impact that labor market barriers confronting underclass youth have on the culture in underclass neighborhoods, see MERCER L. SULLIVAN, "GETTING PAID": YOUTH CRIME AND WORK IN THE INNER CITY 225-31 (1989). Indeed, there is reason to question whether the current labor market provides inner-city minorities with opportunities even as great as existed--at least in some parts of the country--prior to the emergence of the civil rights laws. Even before the demise of formal racial segregation, minorities at least on occasion were able to take advantage of the opportunities once available to low-skill workers. The waves of African-American migration to northern cities during the twentieth century, for example, were largely motivated by the economic opportunities available there. See generally NICHOLAS LEMANN, THE PROMISED LAND: THE GREAT BLACK MIGRATION AND HOW IT CHANGED AMERICA (1991). Much Hispanic migration had a similar motivation. See Moore & Pinderhughes, supra note 99, at xvi-xx.

108 In fact, Professor Massey has made a compelling statistical case that the disproportionate involvement of the minorities in the criminal justice system is a direct function of the extent to which minorities live in socially isolated underclass neighborhoods. See Douglas S. Massey, Getting Away With Murder: Segregation and Violent Crime in Urban America, 143 U. PA. L. REV. 1203 (1995).

109 See, e.g., BURSIK & GRASMICK, supra note 61, at 143-46; CURRY & DECKER, supra note 25, at 74, 124; HAGEDORN, supra note 45, at 111-28; JANKOWSKI, supra note 45, at 23-31 (1991); KLEIN, supra note 36, at 193-97; MOORE, supra note 40, at 5-7, 133-36; MOORE, supra note 45, at 27-54; PADILLA, supra note 45, at 32-54, SANDERS, supra note 40, at 41-46; TAYLOR, supra note 45, at 103-15; JAMES DIEGO VIGIL. BARRIO GANGS: STREET LIFE AND IDENTITY IN SOUTHERN CALIFORNIA 24-34 (1988); Fagan, supra note 37, at 55-57; Miller, supra note 37, at 278-83; Daniel J. Monti, Public Policy and Gangs: Social Science and the Urban Underclass, in GANGS, supra note 45, at 310-14.

110 Sudhir Alladi Venkatesh, The Gang in the Community, in GANGS IN AMERICA 1996 ED., supra note 24, at 247. See also VENKATESH, supra note 59, at 134-39, 161-62. For an historical account of how constricted opportunities have stimulated gang activity in Chicago's African-American community in recent decades, see USENI EUGENE PERKINS, EXPLOSION OF CHICAGO'S BLACK STREET GANGS: 1900 TO PRESENT 20-53 (1987).

111 SPERGEL, supra note 30, at 62. Spergel describes the same phenomenon in underclass Hispanic neighborhoods. See id. at 63-64. Here is Wilson's complementary description of the role of drug trafficking in underclass neighborhoods:.

Consider, for example, the problems of drug trafficking and violent crime. As many studies have revealed, the decline in legitimate employment opportunities among inner-city residents has increased incentives to sell drugs. The distribution of crack in a neighborhood attracts individuals involved in violence and lawlessness .... The association is especially strong in inner-city ghetto neighborhoods plagued by joblessness and weak social organization.

Violent persons in the crack-cocaine marketplace have a powerful impact on the social organization of a neighborhood. Neighborhoods plagued by high joblessness, insufficient economic opportunities, and high residential mobility are unable to control the volatile drug market and the violent crimes related to it. As informal controls weaken, the social processes that regulate behavior change.

Moreover, as Alfred Blumstein pointed out, the drug industry actively recruits teenagers in the neighborhood "partly because they will work more cheaply than adults, partly because they may be less vulnerable to the punishments imposed by the adult criminal justice system, partly because they tend to be daring and willing to take risks that more mature adults would eschew." Inner-city black youths with limited prospects for stable or attractive employment are easily lured into drug trafficking and therefore increasingly find themselves involved in the violent behavior that accompanies it.

WILSON, supra note 85, at 21-22. See also Alfred Blumstein, Violence by Young People: Why the Deadly Nexus?, JUVENILE JUSTICE J., Aug. 1995, at 2. I will consider the relationship between drug trafficking and violence at greater length in Part III, infra.

112 See Pamela Irving Jackson, Crime, Youth Gangs, and Urban Transition: The Social Dislocations of Postindustrial Economic Development, 8 JUSTICE Q. 379 (1991).

113 See, e.g., CURRY & DECKER, supra note 25, at 63, 124-25; KLEIN, supra note 36, at 74-80; DEBORAH PROTHROW-STITH. DEADLY CONSEQUENCES 106-10 (1991); SPERGEL, supra note 30, at 71-73; VALDEZ, supra note 44, at 15-16 (1997); VIGIL, supra note 109, at 90-92, 150-69. For example, gangs frequently prescribe an elaborate code of behavior for members that creates considerable cohesion. See, e.g., CURRY & DECKER, supra note 25, at 76-78; JANKOWSKI, supra note 45, at 78-84. Accordingly, gangs provide the guidance and structure that children in underclass communities frequently do not receive from parents. See, e.g., KAREN L. KINNEAR, GANGS: A REFERENCE HANDBOOK 6 (1996); SPERGEL, supra note 30, at 94-96. Irving Spergel has elaborated:.

A process of destructive socialization occurs: youths who have insufficient social support at home from separated, alienated, or unemployed parents receive inadequate and uncaring attention at school, where they consequently fail or are inadequately educated. Furthermore, youth or community agencies no longer have the resources or capabilities to reach out to these now more socially detached and disorganized young people. Youths must learn to survive on the streets, through attachment to a variety of semi-organized illegitimate structures and criminal and status-providing activities.

Id. at 62-63.

114 See, e.g., CURRY & DECKER, supra note 25, at 63; JANKOWSKI, supra note 45, at 44-45; PA