Insight

Q: Is the rigorous enforcement of anti-nuisance laws a good idea?
June 2, 1997

By CATHERINE COLES AND GEORGE KELLING

Coles is a research associate in the Kennedy School of Government at Harvard University and coauthor with George Kelling of Fixing Broken Windows.

Kelling is a professor of criminal justice at Rutgers University, a research fellow in the Kennedy School of Government and an adjunct fellow at the Manhattan Institute.

Yes: Let the police crack down on minor offenses in order to reduce more serious crime.

In San Jose, Calif., publicnuisance statutes recently were used to rescue residents in the community of Rocksprings from literal imprisonment in their own homes. A gang from outside of Rocksprings took over a foursquareblock area, congregating on sidewalks, lawns and in front of apartment complexes, making it their drugdealing turf. Arson, vandalism, thefts, assaults, shootings and even murders were commonplace. Gang members used garages as urinals and covered walls, fences, sidewalks, buildings and residents' vehicles with graffiti. Citizens who dared protest or call the police were harassed and threatened. Residents withdrew from public places and barricaded themselves inside their homes, isolated from friends and family who were afraid to enter the neighborhood.

The City of San Jose brought suit against 38 gang members, asserting that their behavior constituted a public nuisance, and asked the court to enjoin their activities. The case, People vs. Acuna, moved to the Supreme Court of California, which ruled in the city and citizens' favor: Gang members legally were prevented from "standing, sitting, walking, driving, gathering or appearing in public view with any other defendant" in the Rocksprings neighborhood. The gang's stranglehold on the neighborhood was broken.

The number of publicnuisance lawsuits such as this one is increasing nationwide. Brought by prosecutors on behalf of the public, they reflect an important and positive trend. First, they signal our society's rejection of the exaggerated value placed upon individual rights and liberties—at the expense of community interests, civic duties and the need for order in a democratic society. Fortunately, the courts are coming to this realization and responding favorably to the use of such lawsuits. Second, the reliance of police and prosecutors on antinuisance laws is part of a broader attempt to rethink how they approach problems of crime and disorder. Old ways haven't worked: Reactive responses by police and prosecutors to serious and violent crime alone produced streets out of control, formerly flourishing urban neighborhoods in decline and lawabiding citizens alienated from criminaljustice institutions and processes. Finally, today's nuisance lawsuits represent the growing use by criminaljustice agencies of civil law and civil remedies, in addition to criminal law, to restore order and reduce crime, and they are proving to be powerful and effective tools.

The San Jose case illustrates just why civil remedies such as nuisance abatement are so effective. At first, police attempted to arrest gang members for their illegal activities. But the gang posted lookouts to warn members when police were arriving, so they quickly would disperse before officers could observe their actions or arrest them. Witnesses were so intimidated by threats and retaliation from gang members that they did not want to testify in court, yet criminal prosecution requires witnesses to reveal themselves. Finally, residents became so fearful that they were terrified of seeing members together on the street, even though association among gang members by itself was not a criminal act. In other cases where prosecutors and police have pursued civil actions, such as in evictions of drugdealing tenants or closing down drug houses on housingcode violations, the remedy can be achieved much more rapidly than through a criminal proceeding, often in as little as two or three weeks. And although the level of proof required in a civil proceeding is lower than that in a criminal trial, violation of the court's order in many jurisdictions constitutes criminal contempt: For San Jose gang members, this means that if they violate the court's order against knowing association, all the constitutional protections applicable to a criminal case would attend their trial.

San Jose is not alone in experiencing violent gang behavior that destroyed the safety and quality of life of its citizens. Predatory gangs have caused outrage and despair in many American cities Innocent children have been killed in cross fire and by stray bullets. Churches have been shot up by gangs raiding the funerals of their enemies. Fundamentally lawabiding youth are carrying guns and joining gangs for protection, and gangs have held entire neighborhoods hostage for years proclaiming their right to deal and use drugs and create mayhem in residential neighborhoods. When citizens in Baltimore's Boyd Booth neighborhood attempted to organize to regain control of their streets, gang members crashed their meetings with a clear message: Gangs are in charge. This contempt for propriety mocks the basic principles of ordered liberty which underlie democratic society.

Yet, until recently, the gangs to which many such youth belong operated with impunity due in large part to a preoccupation with individual rights that stymied attempts to rein in the gang members' rapacious behavior. In an era of individualism—do your own thing and let it all hang out—the costs to communities of prostitution, public urination and defecation, public drunkenness, graffiti and deliberate viciousness went unrecognized. They were soon instead as victimless crimes, symptoms of a sick society, homelessness, poverty, as artistic expression or even cultural pluralism—as if public urination, loutish drunken behavior, graffiti or the behavior of gang members in Rocksprings somehow were signs of cultural pluralism. To argue that such behavior characterizes the poor or minorities seriously patronizes and demeans them.

No appeal to freedoms of speech or association warrants authorities turning a blind eye toward the depredations of rampaging youths such as those in Rocksprings. The Supreme Court of California's words are striking: "Often the public interest in tranquillity, security and protection is invoked only to be blithely dismissed, subordinated to the paramount right of the individual. In this case, however, the true nature of the tradeoff becomes painfully obvious. Liberty unrestrained is an invitation to anarchy. Freedom and responsibility are joined at the hip. 'Wise accommodation between liberty and order always has been and ever will be indispensable for a democratic society.’ “

Today, as a new awareness of community interests and the need for order penetrate legal and judicial thinking, criminal justice agencies also are awakening from their torpor. For serious gangrelated violence, the old responses of sending a police car, having streetgang workers attempt to infiltrate gang culture and prosecuting cases once crimes have been committed are insufficient to deal with the obduracy of youth gangs and the destruction they wreak daily in the community. Every criminal justice agency knows who the toughest local gang members are: They are on probation; have outstanding warrants or are out on bail pending arrest; and many have criminal records that include minor crimes, drug dealing and violent felonies. They are part of the 6percenters—those relatively few youths who commit more than 50 percent of all crimes—and police and prosecutors can do something about them.

Police are moving beyond 911 policing and returning to their basic function of maintaining order on streets and in public spaces; prosecutors are working with police and citizens in sophisticated problemsolving activities that target specific neighborhoods and troublesome groups and seek to prevent crime as well as prosecute it; probation officers are taking to the streets, along with police and prosecutors, to monitor their charges more closely and insist that they meet the conditions of their probation if they want to remain out of jail.

In New York City, the unsolicited washing of car windows was ended in three weeks when police, having previously issued citations, returned to arrest "squeegee men" who had outstanding warrants. On Indianapolis' west side, aggressive drug dealing and intimidation of publichousing residents ended when a neighborhood prosecutor obtained a court order banning known drug dealers from the development. In Boston, police, along with federal, state and local prosecutors, probation officers and Harvard researchers collaborated in an effort that reduced juvenile gangrelated murders from 17 in 1995 to none in 1996. The officials convened a meeting of gang members to give them a message: No violence would be tolerated; if violence was threatened or actually erupted, probation conditions rigorously would be enforced and probation revoked at the slightest infraction, laws against disorderly behavior strictly would be enforced, those with pending charges jailed and outstanding warrants served immediately.

Successes such as these throughout the United States have reinvigorated police and criminaljustice agencies. They also have caused considerable debate, often rancorous, in criminal justice and criminological circles. This debate originates in the crimecontrol paradigm that has dominated American criminal justice since the sixties. Defenders of this paradigm argue that the causes of crime are poverty, racism and structural inequities in our social system. To control crime, they insist, one must remedy its underlying causes.

Unfortunately, the logical but perverse conclusion of this line of thought is that, since police and criminaljustice agencies cannot affect social and economic change, they cannot do anything about crime. No doubt crime levels are affected by racism and economic conditions. But the problem is more complex than suggested by the above formulation. When gang members take control of neighborhoods, they strangle families, schools, churches, commerce and other social institutions that offer promise and hope in poor communities. Breaking this control and recreating a sense of order are first steps to restoring the conditions under which neighborhoods and communities can address their problems.

In police circles tentative and cautious optimism is replacing the false belief that police could do little or nothing about crime. Much of the optimism is generated by problemsolving and crimeprevention efforts in which police and prosecutors work closely with citizens to address specific problems and priorities in local neighborhoods. Ultimately, their success depends upon the willingness of the courts to recognize the importance of restoring and maintaining order in our cities. If the words of the California Supreme Court are an indication of where the courts are moving today—and we believe they are—the outlook is positive.

©1997 Insight

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