I have no doubt that Tracey Meares and Dan Kahan are sincere in their enthusiasm for curfews, gang loitering ordinances, and other currently popular methods of exercising social control over the young in urban areas. Yet I am reminded of Oscar Wilde’s insight about sincerity-a great deal of it can be positively fatal.

Let me organize my substantial reservations about the Meares-Kahan analysis under four headings: (1) the “crime context” for constitutional theory; (2) the problematic characterization of 1960s style constitutional rights; (3) the unpersuasive “then and now” analysis of African-Americans and urban street police; and (4) the mysterious constitutional safeguards.

1. Crime Fear as Constitutional Theory. As part of their critique of a rights-based theory of criminal procedure, Meares and Kahan tell us that:

Crime in minority communities has also changed dramatically since the 1960s: it has grown substantially worse. While national crime rates have been steadily declining during the past decade, they have been increasing in the predominantly minority neighborhoods of America’s inner cities [Italics in the original].

I regard this passage as wrong in two respects. In the first place, serious crime rates in the inner cities have not been increasing in the past decade. Big-city crime rates have declined over the past decade, although for most crimes city-level crime rates are not available by race. The most important, and reliable, indicator is homicide. Between 1986 and 1996 the homicide rate for African-Americans declined by twenty percent, according to FBI figures.1 I have no idea how or why the authors believe otherwise. The expansion in African-American prison and probation numbers they cite is a product of more punitive policies and huge increases in drug punishments. It is not due to an increase in the crime rate.

The second error is turning crime trends into constitutional arguments. Meares and Kahan show why crime is a bad thing for communities, but don’t tell us explicitly much about why the rate of crime at a particular moment should enter the constitutional calculus. Is this just an indirect version of the usual argument that civil liberties hamper the government in its pursuit of crime? If so, I would remind the authors that this appeal has a long and unpleasant history, in the United States and elsewhere. Further, since any amount of murder and rape is too much, there is no reason to suppose that popular sympathies would shift in favor of restrictions on police power if crime levels drop. Right-wingers typically turn civil liberties issues into referenda on whether citizens are afraid of violent crime. There is nothing peculiar to the 1990s in this ploy, nor are there any limits to the types of restrictions it can be enlisted to support.

2. Getting the 1960s Wrong. The portrait of the Warren Court approach to the balance between civil liberties and public order painted by Meares and Kahan is grossly misleading. Their article tells us this Court displayed “discretion skepticism,” although the only authority from the Court’s work they cite to this specific effect is Papachristou, an opinion which struck down criminal loitering statutes.

But how would Meares and Kahan incorporate the opinion in Terry v. Ohio into their anti-discretionary vision of the Warren Court? Decided by an eight-to-one majority in 1968, this case allowed police officers who lacked probable cause to frisk the subjects of street encounters for weapons if the officers had a reasonable suspicion that a weapon might be present. The majority opinion, which provided an open-ended doctrinal approach to problems of safety in the streets, was written by Earl Warren himself. It was a leading indicator of the balancing style that justifies weapon screening in airports and other public places.

Why did the Court strike down a vague loitering statute in Papachristou, but uphold discretionary weapons frisking by police operating without explicit statutory authority? Perhaps because the justices felt that the threat of armed suspects was substantial and the limited frisking privilege was a response that did not go further than the risks demanded. The “void for vagueness” doctrine of Papachristou dealt with citizen behaviors that were much less threatening, and legislative prohibitions that were unnecessarily broad and unclear.

Whatever the true relationship between these two decisions, the “Warren Court” described by Meares and Kahan could never have written Terry v. Ohio. And Terry is just the beginning. The most eloquent refutation of Meares and Kahan can be found by reading the cases on criminal procedure decided by the Warren Court.

3. Police Discretion Through African-American Eyes. The authors play out their “1960s versus 1990s” contrast in an attempt to validate a Chicago statute that gives individual police officers the power to decide what groups might include a gang member, and the legal authority to disperse any such group at pain of criminal liability. In this context, all the data about African-American political power and diversity in city policing in the Meares and Kahan article seems to argue that most African-American adults would be happy if urban police had this kind of power over African-American kids.

In the aftermath of the Rodney King and O.J. Simpson episodes, the propensity of significant groups of African-Americans in central cities to trust their local police is not a matter I am prepared to take on faith. From this perspective, the Meares and Kahan analysis is disappointing in three respects. First, they do not zero in on police discretion when discussing the changing elements of African-American participation in urban governance. Second, they present no evidence on the question of African-American attitudes toward discretionary police power. Third, there is no mention of either the O.J. or Rodney King episodes as indicators of African-American public opinion about police powers and conduct.

4. The Mystery Apparatus. The Meares and Kahan article puts forward two new criteria as relevant to standards of constitutional review-“burden sharing” and “guided discretion.” My deferral of these issues is a function of my ignorance: I do not know what these two concepts denote, and I do not know how finding either or both of these elements present is supposed to alter constitutional decision making. Herewith a few of the mysteries.

On burden sharing: What group must share the burden? Is it all African-Americans, African-American men, all younger men? What is the relevant community in a plural society? Who decides whether sufficient burden sharing exists? What should be the consequence of this finding for the constitutional test? On guided discretion: What elements of the Chicago statute Meares and Kahan support constitutes guided discretion? Who decides whether the structure is sufficient, using what standards?

I would know more about the content of either key phrase if Meares and Kahan gave examples of current proposals that would flunk these tests. In their current analysis, however, burden sharing and guided discretion sound more like after-the-fact support for the gang loitering statute than an independently derived set of constitutional theories. For this reason, the article sounds more like a moot court than a theory articulating when political majorities ought to be allowed to expand the powers that police can exercise on city streets.

Maybe their moot court argument is a winner. Perhaps the theme song for crime control in the late-1990s will be “Anything Goes.” My hope, however, is that a never-popular Bill of Rights will continue to function in the ways that have improved the quality of American society for more than a generation. 

1 Compare U.S. Department of Justice, Uniform Crime Report, 1986 and 1996.