Dan M. Kahan’s research while affiliated with Yale University and other places

This short essay surveys recent works (including an article by Neal Katyal in the same issue of the Michigan Law Review) that attempt to enrich the standard conception of deterrence by incorporating social norms. The motivation for grouping these works together is as much political as conceptual: to draw attention to their potential to negotiate the space between economic and sociological approaches to crime control. The economic approach rests on an account of human motivations that is too thin to be believable, and generates policies that are too severe to be just. The sociological approach is much richer but also hopelessly impractical; it is clear that American society has neither the social-scientific know-how nor the political will to eradicate the social "root causes" of crime. The works surveyed in this essay, in contrast, focus on social phenomena that are important enough to be worth regulating but malleable enough to be regulated efficiently. (Among these are "social organization," "moral credibility," "social meaning," and "social influence.") The payoff is a host of morally acceptable and politically feasible law-enforcement policies -- from curfews, to gang-loitering laws, to order-maintenance policing, to reverse stings, to shaming penalties -- that deter as well or better than severe prison terms and that cost much less.

This article describes and evaluates three competing conceptions of federal criminal-lawmaking. The first, which can be called the legislative supremacy position, conceives of federal crimes as purely legislative in origin. This is the dominant understanding of how federal criminal-lawmaking does and should work. It also happens to be a rank fiction. The second conception of federal criminal-lawmaking can be called the common-law position. It depicts the operative rules of federal criminal law as judicial in derivation in much the way that the operative rules of federal antitrust and labor law clearly are. The common-law conception offers the best description of federal criminal-lawmaking as it currently exists. It is also normatively superior to the conventional legislative-supremacy position, although it is afflicted with some fairly obvious pathologies. The third and final conception of federal criminal-lawmaking can be called the administrative-law position. On this view, defining operative rules of federal criminal law would be the responsibility of the Executive Branch of government, which would carry out this task either by promulgating legally binding rules akin to the Federal Sentencing Guidelines, or by announcing statutory interpretations that courts would be bound to defer to in criminal prosecutions. The administrative conception is not the system of criminal lawmaking that we have or that anyone thinks we have. Nevertheless, it's the system that we ought to have, and one we easily could with only modest doctrinal innovation.

The standard economic conception of deterrence assumes that individuals obey or break the law depending on the "price" of crime -- that is, the severity of punishment discounted by the probability that it will be imposed. This paper supplements the standard conception by showing that individuals' decisions to commit crimes are also responsive to another factor: the decisions of other individuals to commit them or not. Social psychologists use the term social influence to refer to the pervasive tendency of individuals to conform to the behavior and expectations of others. There is ample evidence that social influence affects the commission of all manner of crime, from theft, to homicide, to tax evasion. Identifying the contribution of social influence to criminality suggests that society should attend not just to law's effect on the price of crime, but also to its social meaning -- that is, its power to shape individuals' perceptions of the conduct and values of other individuals. In some cases, policies that seem to have little effect on the price of crime -- including order-maintenance policing and curfews -- might nonetheless be cost-effective deterrents because of their power to suppress signs that individuals are engaged in or value crime. Likewise, policies that appear to be cost-effective means of raising the price of crime -- such as the substitution of severity of punishment for certainty of conviction -- might in fact undermine deterrence by magnifying the perception that crime is rampant.

American jurisdictions have traditionally resisted fines and community service as alternatives to imprisonment, notwithstanding strong support for these sanctions among academics and reformers. Why? The answer, this article contends, is that these forms of punishment are expressively inferior to incarceration. The public expects punishment not only to deter crime and to impose deserved suffering, but also to make accurate statements about what the community values. Imprisonment has been and continues to be Americans' punishment of choice for serious offenses because of the resonance of liberty deprivation as a symbol of condemnation in our culture. Fines and community service either don't express condemnation as unambiguously as imprisonment, or express other valuations that Americans reject as false. The article also uses expressive theory to explain why the American public has consistently rejected proposals to restore corporal punishment, a form of discipline that offends egalitarian moral sensibilities; and why the public is now growing increasingly receptive to shaming punishments, which unlike conventional alternative sanctions signal condemnation unambiguously.

The goal of our Article was to expose the anachronistic picture of political reality that informed the Illinois Supreme Court's decision in Chicago v Morales. Relying on civil rights era precedents designed to counteract racist policies aimed at locking minorities out of the community's civic life, the Morales Court's analysis seems to treat Chicago's gang loitering ordinance as if it were indistinguishable from those earlier policies. The truth, we argue, is that the gang loitering law is representative of a new generation of public order provisions that enjoy the enthusiastic sponsorship of minority communities. As a result offundamental reforms in American voting law, these citizens now enjoy significant political strength in the nation's inner cities. They're using that strength to rectify centuries' long denials of effective law enforcement in their communities—the vestiges of which, in the form of high crime rates, continue to stifle the social and economic advancement of American Blacks and Latinos. In these circumstances, we suggest that the most constructive role for courts is no longer to enforce tight constraints on discretionary street policing, but to insist that inner-city communities structure law enforcement in a way that doesn't dissipate their own political incentives to police their police. We believe that the Chicago gang loitering law meets this standard. Alschuler and Schulhofer critique our account of the politics behind the gang loitering law as well as our general argument about the significance of minority political empowerment for criminal procedurejurisprudence. We respect the questions they raise and the doubts they pose, but we believe, nevertheless, that their conclusions are wrong. We first take up their description of the factual background of the gang loitering ordinance—the part of their response that is easiest to rebut—and then address the admittedly difficult points they raise about the relationship between the political process and constitutional rights.

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