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

39 Pages Posted: 5 Dec 2012

See all articles by Joan W. Howarth

Joan W. Howarth

William S. Boyd School of Law, UNLV; Michigan State University College of Law

Date Written: Summer 2000


Gang members from elsewhere congregated on lawns, on sidewalks, and in front of apartment complexes at all hours. They displayed a casual contempt for notions of law, order, and decency -- openly drinking, smoking dope, sniffing toluene, and even snorting cocaine laid out in neat lines on the hoods of residents' cars. San Jose prosecutors responded by obtaining and enforcing a broad injunction against the gangs and their members, based on the finding that the gangs' activities constituted a public nuisance. California prosecutors have sought such anti-gang public nuisance injunctions since 1987. Their constitutionality was in doubt for ten years until People ex rel. Gallo v. Acuna, in which the California Supreme Court upheld this injunction as a lawful and important means to hold the gang members accountable and restore community to Rocksprings.

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 re-conceive 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.

Keywords: restorative justice, gangs, constitution, nuisance, injunction, punishment

Suggested Citation

Howarth, Joan W., Toward the Restorative Constitution: A Restorative Justice Critique of Anti-Gang Public Nuisance Injunctions (Summer 2000). Hastings Constitutional Law Quarterly, Vol. 27, 2000, MSU Legal Studies Research Paper , Available at SSRN:

Joan W. Howarth (Contact Author)

William S. Boyd School of Law, UNLV ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

Michigan State University College of Law ( email )

318 Law College Building
East Lansing, MI 48824-1300
United States

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