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

The use of public nuisance injunctions against gangs and suspected gang members is an aggressive prosecutorial strategy upheld and even endorsed by a majority of the California Supreme Court in 1997 in People ex rel. Gallo v. Acuna. This Article critiques these injunctions through the lens of restorative justice principles. Restorative justice rests on the tenet that any crime is injurious, and that the best response is one that heals injuries caused to the victim, the community, and the offender.

The Article argues that although anti-gang public nuisance injunctions share significant similarities with some restorative justice programs, the injunctions undermine the promise of restorative justice as deeply as they weaken traditional civil liberties. This Article also begins an argument for a Restorative Constitution, whereby constitutional protections - re-imagined as affirmative community-based values, not simply defensive, individual- based rights - can accommodate and even embrace restorative justice goals, themes, and programs.