“Toward the Restorative Constitution: A Restorative Justice Critique of Anti-Gang Public Nuisance Injunctions”

Source: (2007) Hastings Constitutional Law Quarterly. 27: 717-756.

This article critiques anti-gang public nuisance injunctions through the lens of restorative justice principles. The rhetorical justification for anti-gang injunctions is strikingly similar to the rhetoric of the restorative justice movement. Restorative justice rests on the tenets that any crime is injurious, and that the best response is one that heals the injuries caused to the victim, the community, and the offender. The anti-gang public nuisance injunctions share significant similarities with typical restorative justice programs: both are deviations from traditional criminal court (or even juvenile court) models; both privilege participation of affected communities; both reconceive lawbreaking as injury; and both, at least in theory, are based on notions of redress of those injuries. Further, both provoke serious opposition from civil libertarians. Fundamentally, though, the anti-gang public nuisance injunctions undermine the promise of restorative justice as deeply as they weaken traditional rights-based protections, and the betrayal of the goals of restorative justice may be of even greater consequence. (excerpt)