Naughty by Nurture: Black Male Joyriding - Is Everything Gonna Be Alright


NAUGHTY BY NURTURE: BLACK
MALE JOYRIDING---IS EVERYTHING
GONNA BE ALRIGHT?

Dwight L. Greene*

This Article is the final work of Professor Greene's extensive contribution
to the study of the intersection of law and race. Professor Greene was still
in the process of developing this work when he was murdered on July 5,
1993. The Journal collaborated with Professor Greene's friend and
colleague, Professor Twyla Tharp of Rutgers University, and made only
minimal editorial changes in this Article to preserve the integrity of the
author's voice.

Introduction:

Dr. Blair (male):

Nurse
Dr.:

Nurse:
Dr.:
Nurse:
Dr.:

Nurse:
Dr.:

Johnson (female):

(noises of babies crying in the
background)
Nurse Johnson, is the mother still in
the recovery room?
Yes, Dr. Blair.
O.K., I'll go to the waiting room and
inform the father it's a boy.
I'm afraid there is no father, sir.
Another ghetto bastard---uh---
I'm afraid so.
Well, put him with the rest of the
born losers.
Alright, doctor, a shame isn't it?
It's not a shame, [it's] a problem.

[Narrator: A Young Black Male called "The Drifter"] Why am
I worthless . . . .I didn't have jack but a black hat and nap
sack, four scars, stolen cars, and a black jack.'

* Professor of Law, Hofstra University School of Law. B.A. 1970, Wesleyan;
J.D. 1974, Harvard. A talk based on an early version of this article was given at a
conference entitled "Discovering Our Connections: Race and Gender in the Theory and
Practice of the Law," sponsored by the American University Journal of Gender and
Law (Sept. 12, 1992).

"Everything's Gonna Be Alright" is by a rap/hip-hop group, Naughty by Nature.
Naughty by Nature, Everything's Gonna Be Alright, on Naughty by Nature (Tommy
Boy Records 1991). This song, like their popular hit, "OPP," was a commercial



Columbia Journal of Gender and Law

Against hip-hop's backdrop are voices from a new post-civil rights
Black America. These voices are those of certain young Black men who
see themselves as hopeless and dispossessed from birth. These young men
believe that society views Black men born to single mothers as a shame or
a problem. With worthlessness as their birthright, and relentless poverty
and denigration their life circumstances, entanglement with the criminal
justice system may seem to loom as an inexorable fate.

The media portrays crimes committed by young Black men---from
joyriding to carjacking, murder, and rape---as the undifferentiated behavior
of a dangerous and irrational group that is victimizing white society. In
MTV milliseconds, the response of lawmakers is that we must control these
lawbreaking individuals through more extensive use of the criminal law.

This Article is about conflicting perceptions of lawbreaking by poor,
young Black males. It contrasts the media's perception and portrayal of the
lawbreaking of these youths with the young men's own perceptions of their
actions. It raises a fundamental question this society must confront: "Is
everything gonna be alright?"

Young Black males are a severely oppressed group. Because of
exogenous forces and self-conscious awareness of society's negative
stereotypes, young Black males do not have much of a chance in America.
The statistics are well known: poor households,2 unequal public
education,3 and the nation's highest unemployment rate." Even if they are
employed, the culture and stereotypes of gender and race are unique
burdens.' Often, a young Black male is suspected of being a criminal

success with young Black males in 1992. See Appendix.
2 The economic condition of Black children deteriorated in the 1980's. Lynn

Duke, Success Looks Like a Shot: Dreams Vie With Harsh Realities as Young Black
Men Size Up Life, Wash. Post, July 26, 1992, at Al. Pulse, Children and Poverty,
N.Y. Times, Nov. 9, 1992, at B1 (reporting Census Data that 39.8% of Black, 32.2%
of Hispanic, and 12.5% of White children lived at or below the $12,575 poverty level
for a family of four). Census Bureau, Center for Social Policy, the Challenge of
Change (1992).

Cf. Jonathan Kozol, Savage Inequalities (1991).
4 The national unemployment rate is approximately 7.3%. This represents a 5.9%

White versus a 12.3 % Black rate. Young Black men are so excluded from this society
that many are not actively seeking employment anymore and therefore, are not included
in these statistics. For this group, the actual unemployment rate is closer to 56.7%.
National Urban League, The African-American Worker, no. 31 at 1, 5 (1992).

5 Black men are disadvantaged in workplaces because of stereotypes about their
intelligence, belligerence, physical attributes, etc. The mere presence of Black men in
the workplace in 1992 was considered a disabling cause of post-traumatic stress disorder
for a White woman who was criminally assaulted by some other Black man. William
Booth, Phobia About Blacks Brings Worker's Compensation Award: Florida Woman
Filed Claim After Parking-Lot Mugging, Wash. Post, Aug. 13, 1992, at A3.

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simply based on his status as a young Black male, rather than because of
any act he may have committed.6 All too often, the impression is
conveyed that America does not respect or want young Black men7---except
perhaps, as athletes or entertainers. Not being American Express Gold
Card people in a materialistic America, some young Black men see
themselves as worthless onlookers, outsiders in their homeland.

While most young Black men continue to be law-abiding despite lives
of oppression, others respond with rebellious, low-level crime. A paradigm
of this behavior is what I call "protest joyriding." In Newark, New Jersey,
for example, with its landscape still marred from the riots of the 1960's,
some young Black men steal unattended cars or joyride with peers in stolen
vehicles. These cars are like those the media dangles as the vehicles to
manhood, happiness, and self-worth. Yet given the family circumstances
and lawful earning potential of most young Black men, these are cars they
will most likely never be able to ride in lawfully.

As with joyriding generally, for these young people, briefly possessing
cars seems to be the primary goal. They do not profit from their "crime."
They do not market or sell the cars or their parts. Uniquely, they drive in
a high profile manner, sometimes spinning in circles at high speeds, leaving
skid marks from screeching tires. When the inevitable occurs and police
attention is attracted, some taunt the police in an evasive and confrontational
fashion.

Out of this conduct arises the conflicting constructions of reality which
are the subject of this Article.' First, there are the realities of the media.
Part I of this Article discusses the media's construction of the phenomenon
of joyriding. I argue that the media has seized upon joyriding and treated
it as if it is at the same level of seriousness as other car-related crimes such
as car theft or carjacking. Using the common links of cars and stereotypes,
the media has created the impression of an epidemic of out-of-control young
Black men engaging in auto theft. This construction of reality relies on

6 Diana Jean Schemo, Singling Out Blacks Where Few Are to be Found, N.Y.

Times, Oct. 20, 1992, at B 1 (noting incident where all Black male students at Oneonta
College were targeted as suspects in a rape investigation solely on the basis of their
race). Race, gender, and class stereotypes sometimes form the basis for imposing
criminal sanctions. Cf. Dorothy Roberts, Punishing Drug Addicts Who Have Babies:
Women of Color, Equality, and the Right of Privacy, 104 Harv. L. Rev. 1419 (1991).

7 Some Blacks believe that Whites would willingly rid America of all Blacks. See,
e.g., Derrick Bell, Faces At the Bottom of the Well: The Permanence of Racism
(1992).

8 The conflict in perspectives may be like postmodern philosophy, embedded in
people's lives and activities. That is, there may be no single totalizing "truth" here,
just perception, action, and power. Cf. Jack M. Balkin, What is a Postmodern
Constitutionalism?, 90 Mich. L. Rev. 1966, 1972 (1992).

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dramatic but decontextualized facts. The incidents selected for presentation
conform to dominant stereotypes about young Black men, single Black
mothers, and White women in need of White male protection against a
dangerous (Black) world. Through their power to construct pictures of
reality which are misleading, the media has both exaggerated the problem
and confused the issues.

Television virtually never reports that statistically, the overall problem
of stolen cars has leveled off and indeed, has actually declined in the
Northeast in recent years.' Nor does television mention that car robberies
have not been increasing recently in relation to the population, and only
rarely result in physical harm to people.' ° Part of the discussion in Part
I will illustrate the way in which the media's reporting of statistics adds to
the panic and increases the confusion between joyriding and more serious
car-related crimes.

The second construction of reality I will address is that of the young
Black men who actually engage in joyriding. I will offer a construction
which argues that some joyriding is, within this world view, a form of
social protest.

As the rap group Naughty by Nature suggests, the perspective of some
young Black men defines manhood in material, propertied terms, with cars
playing a special, symbolic role. Simultaneously, many young Black men
feel trapped in a situation of permanent deprivation. They perceive all
avenues out of their world and into the other as closed. Their status as
Black males, poor, and often born to single mothers, assures that they will
never have lawful access to the material world of manhood. They perceive
their only power as negative---the power to confront the world they wish
to be a part of, but which excludes them. So with their peers observing,
they act---inverting the dominant normative order. These young men
confront and take on two symbols---the car as the symbol of manly power
and the police as the symbol of society's power---and momentarily, at least,
control them both.

9 Prior to any new laws, car thefts were declining. According to the F.B.I.
Uniform Crime Reports, car theft in Newark peaked at 15,674 in 1989 and has steadily
declined to 13,961 in 1991. During the first nine months of 1992 there was a 14%
decline as against the same period in 1991. Michael Marriott, Car Thefts Decreasing
in Newark, N.Y. Times, Nov. 16, 1992, at BI.

10 Nationally, the F.B.I. reports that auto thefts plateaued in 1990 and have not
increased in relation to the population since then. 1991 F.B.I. Uniform Crime Rep. for
U.S. 50 (1992). See also Don Terry, Carjacking: New Name for Old Crime, N.Y.
Times, Dec. 9, 1992, at A18 (indicating that carjacking represents a small percentage
of either car theft or armed robbery and that the vast majority of carjacking results in
neither injury nor death).

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Third, there is the reality of the laws, mainstream politics, and the
courts. Part II of the Article addresses this reality. Because they react to
the exaggerated sense of risk and insecurity created by the media and the
resulting pleas of constituents rather than empirical evidence, government
perceives the need to control and dominate those individuals involved in
crimes related to auto theft. Ignoring statistics that indicate that the
problem is waning, government acts to impose tougher laws as quick
political fixes. Legislators propose or adopt mandatory sentences, parental
accountability laws, and curfews to dominate people without addressing
their underlying needs. And the courts, for the most part, legitimate these
control regimes with constitutional doctrines which are unable to register
the group-based complaints of poor, young Black males.

In Part III, this Article takes issue with all of these constructions. Part
III.A argues that in this society, we have hierarchies of the oppressed which
constitute an impediment to forming coalitions that would nurture rather
than dominate and control historically oppressed peoples. I argue that if
these hierarchies were eliminated or at least minimized, a foundation could
be laid for bridging differences and shifting paradigms away from control
and towards nurturing all people, including young Black males. Towards
this end, in Part III.B, I propose solutions designed to address at least some
of the immediate problems associated with joyriding. Finally, in Part III.C,
I propose an open-ended process for changing values in this society through
the establishment of campgrounds of renewal. In these fora, conflicting
constructions of reality could be articulated and heard, and work could
begin to change the emphasis in American values from domination and
control to human development.

I. JOYRIDING: REALITY V. MEDIA CONSTRUCTIONS

Background Chorus: Everything's Gonna Be Alright [repeated]

N: A ghetto bastard,
born next to the projects,
living in the slums with bums and
gotta watch it.
Do I have to be like this?
Mamma said I'm priceless.
Why am I worthless?
Starving is just what being nice gets.
Sometimes I wish I could afford a
pistol...
I would have ended things awhile
ago.

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I didn't have jack but a black hat and
nap sack, four scars, stolen cars, and
a black jack.
Drop that. I

The story of stolen cars in Newark (and America) is about how we see
ourselves as a country: dangerous cities versus safe suburbs; security in
our homes and cars versus violent streets. This story is about popular
culture, the media, and those portrayed as threats to domestic tranquility,
young Black males. Cars, like our homes, are places of special privacy and
solitude. But they are now being taken and invaded. 2  Newark, New
Jersey, has the highest per capita car theft rate.'3 The media and much of
society want tougher controls. Special police anti-auto theft task forces
have been organized and politicians have called for tougher laws. The
televised image is that of macho, young, (mostly Black) males going up
against macho (mostly White) police.'4 The reality is more complex.

Stolen cars present a group of problems. Some issues relate to the
peculiar attributes of adolescence, some to economics, some to sociopaths,
but some involve sensational media-created perceptions that are not based
on underlying realities. These acts are lumped together without careful
analysis, undermining sober discourse. At least three different kinds of
crimes are blended. They are: (1) unauthorized use of a motor vehicle,
"joyriding,' 5 (2) grand theft auto, 6 and (3) carjacking, 7 robbery of an

Naughty by Nature, supra note 1.
12 Iver Peterson, When Cars Are No Longer Havens From Fear, N.Y. Times,

Nov. 10, 1992, at B1.
13 F.B.I. Unit to Fight "Carjacking," Facts On File, World News Digest, Sept. 17,

1992, at 685 (reporting for cities whose population is greater than 50,000, Newark had
5,094 thefts per 100,000 people in 1992). My own car was vandalized at Newark
Airport in the summer of 1992.

14 In Newark, 53% of those arrested are juveniles under 18. Interview with Tom
DeCastro, Detective and Head of the Union County Auto Theft Task Force (Nov. 2,
1992). Nationally, 44% were under 18, and 62% were under 21. See F.B.I. supra
note 10, at 52.

" "A person commits a disorderly persons offense if, with purpose to withhold
temporarily from the owner, he takes, operates or exercises control over [a car] without
consent of the owner." N.J. Stat. Ann. § 2C:20--10(a) (West 1992).

6 Auto theft is a property crime which requires an intent to deprive the owner
permanently of the car and does not involve a forcible taking. See, e.g., N.J. Stat.
Ann. §§ 2C:20--1, 2C:20--3 (West 1992).

'" The object of carjackings must be the forcible taking of a car. See, e.g., Anti
Car Theft Act of 1992, Pub. L. No. 102-519, 106 Stat. 3384 (1992) ("Whoever,
possessing a firearm ... takes a motor vehicle ... from [a] person. . . by force and
violence or by intimidation. . . shall be imprisoned [up to 15 years or if injury results,

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automobile by and from one or more person(s). These three crimes can
overlap and encompass other crimes, but are distinguishable for purposes
of determining their causes and designing remedies. In part, I will offer a
statistical overview of the involvement of Black youth with stolen cars. I
will make the distinction the media fails to make---the distinction between
carjacking and joyriding. Following this analysis, I will offer my own
interpretation of the activity of joyriding by Black youth through a concept
which I call "protest joyriding."

A. Statistics and Differences Between Joyriding and
Carjacking

Law enforcement statistics indicate that both auto thefts in Newark and
carjackings in neighboring New York have been steadily declining over the
last several years.' 8 Moreover, carjackings are an old problem and
comprise only a small fraction, 1.1 %, of all auto thefts and only about 3 %
of the robberies committed annually.' 9 Contrary to the impression created
by the media, carjackings rarely result in any physical injury.2' As with
robberies in places like shopping centers, 2' the media, and not aggregate
crime, has created the sense that these are degenerative problems requiring
immediate attention and action.' There are essential and important

up to 25 years, or if death results, up to life]"); N.J. Stat. Ann. § 2C: 15-1 (West 1992)
(robbery but without firearm requirement).

18 See supra note 13 with respect to auto thefts. Like most law enforcement
agencies, Newark does not classify car robbery separately, but New York City does.
In New York, the number of carjackings has been declining over the last two and one
half years. In 1990 there were 2,298 gunpoint robberies; in 1991, 2087; and for the
first six months of 1992, 926. Carjacking Unit for New York, N.Y. Times, Nov. 25,
1992, at B6. A 1992 law requires the F.B.I. to track carjackings. See Anti Car Theft
Act, supra note 17.

9 Nationally carjackings were estimated at 19,000 in 1991 and 21,000 for 1992,
which when compared to population increases is not a statistically significant change.
See Terry, supra note 10.

20 See Terry, supra note 10 (according to Howard Apple, Head of the F.B.I's
Interstate Theft Unit).

21 Fear of crime permeates shopping malls, but here again law enforcement and
shopping center security firms report that this is an unfounded perception. It is
estimated that about one in seven million cars are robbed. Jonathan Rabinovitz, Mall
Stress Visible Security to Counter Fears, N.Y. Times, Nov. 27, 1992, at Al.

22 See, e.g., Linda Health and John Petratis, Television Viewing and Fear of
Crime, 8 Basic and Applied Soc. Psychol. 97 (1987). My point is not that the current
level of automobile related crime is not serious. Rather, that based on statistics, the
rate of these crimes has already stabilized, and is declining in Newark and the
Northeast.

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differences among the crimes being blended through the use of stereotypes.
Carjacking is different from joyriding; it is a robbery, the forcible taking
of a car.

Joyriding, on the other hand, is an entirely different crime. It involves
the unauthorized use of a car with no intent to convert it to permanent use.
No force is involved. The car is taken for "fun" and then abandoned.'
This property crime puts young, usually untrained drivers on the streets for
short durations.

Joyriding is by no means solely or even primarily a Black crime.24

Historically, it has been a crime associated with White middle class
youngsters, even in Newark.' What little systemic research there is
suggests that White suburban youth were, at least up until the early 1980's,
slightly more likely than their poor, Black, inner-city counterparts to be
involved in joyriding.26

This fact, however, may be changing. There has been an increase in
the number of people under eighteen arrested for car theft during the last
ten years from 32,195 in 1982 to 63,389 in 1991.27 This sharp increase
may reflect some shift towards more auto thefts by inner-city poor
Blacks.' Even taking this possibility into account, joyriding still appears
to be a problem of delinquency, White and Black. Yet the joyriders in the

23 As discussed in Part II, I do not suggest that any joyriders be given a free ride.
Being systemically locked out of the American Dream by reason of poverty explains,
but does not excuse or justify criminal behavior. However, there are reasons not to
increase the penalties and severity of treatment. My aim is a middle ground which
augments the status quo of sometimes jailing joyriders with alternatives to jail and
preventative programs to keep youngsters from joyriding in the first place.

24 F.B.I. statistics of arrests are demonstrative: Whites accounted for 59.4% and
Blacks 38.4%. F.B.I. Sourcebook of Criminal Justice Statistics Table 4.9 p. 444
(1992).

1 Raul C. Higgins & Gary L. Albrecht, Cars and Kids: A Self-Report Study of
Juvenile Auto Theft and Traffic Violations, 66 Soc. and Soc. Res. 29, 31 (1981)
(reporting studies).

26 This research is based on a self-report study of 1,410 Black and White 10th
grade students in Atlanta. Id. Self-reports are a more reliable measure of White versus
Black joyriding than are either media reports or police arrests. Self-reports do not
reflect reporting and arrest biases.

27 Sonya Ross, Carjackers Found to be Young, Violent Have-Nots Seeking Status,
L.A. Times, Oct. 4, 1992, at Al.

28 While arrest statistics support this conclusion, self-report data from Black and
White youngsters would be a more reliable method for making this determination.
Assuming arguendo there has been a shift toward inner-city joyriding, there may be
economic factors at work. Increased unauthorized use of motor vehicles may reflect
the deteriorating economic well-being of inner-city families. Poorer families probably
have fewer cars. When inner-city youths reach the age when driving is taken for
granted, they have no cars to drive lawfully. Increased joyriding may be related to
rising expectations and more limited access.

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media are almost invariably poor Black, and non-White Latino males. The
perception that joyriding is a new social crisis has at its core a media-
constructed picture based on cultural fears and stereotypes of out-of-control
young men of color.

Carjacking is an entirely different kind of crime from joyriding. It is
a car robbery, meaning force or the threat of force is used against one or
more persons in taking a car. Like any robbery, this needs to be controlled
and punished, especially when committed with a weapon. Yet, even in this
quest, caution must be exercised.

The term "carjacking" is a recent media term created to dramatize
events long ago made famous by Bonnie and Clyde. However, the term
carjacking is misleading when it is used to conflate car theft with other
crimes such as rape. For example, treating crimes against a woman such
as rape during a carjacking as a carjacking, makes the property the nominal
focus when it should be the woman. By failing to distinguish between the
crime against the person, and the crime against the property, the media
diminishes the value of the person, and the value of the property is seen as
being of equal importance. The equalization of property and persons is a
demeaning and outrageous media-shaping of perception.29

Some opine that carjackings are committed by repeat offenders,
professional thieves stealing to market the cars. To minimize the damage
to the vehicles due to defeating anti-theft devices, robbery is preferred.3"
Some other carjackings are committed by people interested only in the
short-term use of cars.3" These include atypical horrific crimes like the
killing of Pamela Basu in Maryland. 2 Although this specific crime was
committed by Black males, not a great deal is known about the
demographics of carjackers in general because these crimes have not been
reported separately from other robberies until recently.

29 Car robbery can overlap with other crimes, such as an abduction where a person
is the primary object of the criminal conduct. Compare Robert Hanley, Ex-Convict is
Charged in Abduction, N.Y. Times, Nov. 9, 1992, at BI (reporting how crime initially
reported as "carjacking" was actually a kidnapping, murder, and sexual assault where
the car was abandoned) with Ian Fisher, Second Car is Hijacked in Two Days, N.Y.
Times, Nov. 9, 1992, at B5 (reporting car robberies where occupants were forced from
cars).

30 Ross, supra note 27. Two related cases charging a continuing criminal
enterprise illustrate carjacking as a business. The participants were charged with
stealing luxury cars for export at gunpoint and shooting drivers as necessary. See
United States v. Reyes, et al., indictment, 92 Cr. 1123 (S.D.N.Y. 1992); United States
v. Galarza, indictment, 92 Cr. 1124 (S.D.N.Y. 1992).

3" Terry, supra note 10.
32 Id.

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This differentiation between joyriding and carjacking is not reflected
in the media's portrayal of reality. The media's make-believe world
portrays almost exclusively an exaggerated and increasing danger, Black
violence against Whites.33

B. The Media's Construction

Joyriding and its media companion, carjacking, are perfect for
televised news. The media simplistically groups all problems related to
stolen cars as if they were all the same, new and problematic.34 Horror
shows of nightmares on the streets of America are presented for their
entertainment value. Visions of battered cars and people are shown, along
with interviews with apparently recalcitrant, irrational Black youths, their
single Black mothers, selected genuinely tragic victims (usually women and
often White), and vigilant but frustrated police. These images create a
sense of urgency as these crimes are portrayed as "epidemic."

The CBS "48 Hours" show on auto thefts,"Steal That Car, '"" was an
example of what is wrong with television news portrayals of contemporary
American society. Capitalizing on fear and stereotypes, it sensationalized
and misled as it purported to inform. The show relied on a steady stream
of Black and Latino street level car thieves who were shown with only two
White male professional car thieves and a number of White police officers.

The show opened with scenes of Newark and protest joyriding as
viewed from within a police vehicle. The bystander youngsters interviewed
in ten-second sound bites were an ebullient (unruly?) group of Black
teenagers. A voice told us that this was no ordinary joyriding; these kids
were killers.

48 HOURS made no attempt to refine or limit this rather dramatic but
exaggerated statement. Instead, the next segment, after advertisements
(including one with upper middle-class Whites drinking Champagne at a
party), blended the statement about joyriders being killers with a report of
a carjacking in Houston. This crime was actually not just a robbery of a
car, as are most carjackings. This was a combination of a car robbery,
abduction, and rape committed by two young adult Black males.36 This

13 White criminals are portrayed mostly in auto theft crimes not involving violence,
such as grand theft auto and insurance fraud.

31 While protest joyriding is a new phenomenon, there is nothing new about either
joyriding or robbery of cars, now called by the cachet name, carjacking. Terry, supra
note 10.

" 48 Hours: Steal That Car (CBS television series, Dec. 9, 1992).
36 See Hanley, supra note 29.

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was a horrible set of crimes where the two men forced their way into the
car and raped the mother in the presence of her family while they rode
along a highway "with loud music playing." Clips of ten to fifteen second
sound bites of comments by the woman and her husband were juxtaposed
with interviews of one of the criminals and a prosecutor. Interviews with
other old and young White couples who had been victims of car robberies
were shown with an introductory clip of a young Latino victim from San
Diego.

In a subsequent segment, the camera rode along on an undercover sting
operation where the culprit was a middle-aged White male locksmith who
stole cars from automobile dealers in North Carolina. This segment was
followed by a series of segments on how people tried to protect their cars
with alarms. During one segment, two young Puerto Rican males, Carlos
and Carmelo, who were "retired" car thieves, demonstrated how they could
defeat most protective devices, including the much advertised "Club."

The show concluded by returning to Newark and following the career
of what the show called a "typical" car thief, a young Black male who had
been involved in several joyriding incidents. This segment featured his
prior juvenile arrests for joyriding and what happened after he turned
eighteen---yet another probationary sentence. One of his teachers was
interviewed, an older White woman, who said he had promise. She
sincerely started to cry. This segment ended with twenty-five seconds
devoted to a scene where his mother was interviewed while bailing him out
of jail. His mother, a single Black woman with two jobs, was asked
whether she knew her son was out stealing cars while she was working.
The mother responded that she had to work and there was no recreation
available for kids in Newark. The young Black man ended 48 HOURS
saying that he wanted a job. Just before this, a reporter commented that the
audience could make of his comment what it wanted. The entertainment
over, it was back to the regular news with a brief report from Dan Rather
in Somalia with the Marines.

This kind of televised news is accepted by the public and politicians
alike as truth to which legal responses reasonably can be made. Television
has become the medium through which much of reality is constructed in the
late 20th century.37 It has become our society's principal mode of
knowing itself. But television is designed as entertainment, not serious
discourse. Protest joyriding and carjackings have great entertainment value,
even if the entertainment is morbid. Visual shots of Black joyriding

3' For an informative discussion of the relationship between profitability and
entertainment-oriented news shows at CBS, the network broadcasting 48 HOURS with
Dan Rather, see Peter J. Boyer, Who Killed CBS (1988).

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youngsters making circular skids in front of peers, police, mutilated cars,
and people participating in and victimized by both joyriding and carjackings
are ready-made subjects for soundbites and ambitiously defined as "news."

Yet televised and printed snapshots do not accurately reflect more
complex realities. They offer decontextualized information bites, where the
visual image is both the strongest message and the entertainment. The
misleading impression is given to the viewer that the whole picture is being
seen, when it is not. This "truth" seems natural and in need of no further
elaboration; after all we see it "with our own eyes," so it must be complete.
Television, and its newsprint analogue,3" portray this situation as an urgent
problem and so viewers assume that an urgent solution must be found.

This misleading knowledge is often augmented by familiar stereotypes.
Young Black men are presented with their single Black mothers standing
by.39 Their victims are usually White and female. This notwithstanding
the fact that overwhelmingly, the victims of Black male robberies and other
thefts are other Blacks. The media construction sells by appealing to the
deep-seated race, gender, and class stereotypes in our popular culture. It
creates a public panic, encouraging legislators to seek immediate control of
young Black men.

With respect to protest joyriding, beyond indiscriminately blending it
with other crimes, the media suggests either that it is irrational behavior by
Black males or a rebellion without social meaning. The perspectives of
some young Black male joyriders offer an alternate construction of reality.

C. Young Black Males' Construction of Joyriding

What I have named "protest joyriding" is a form of social protest,
when viewed from the perspective embedded in the lives and actions of
young Black males. To facilitate understanding of joyriding as social

38 As Postman observes, even most print media conveys information in a television
format. In publications like USA Today and the New York Post, pictures dominate and
the story's printed information follows in headlines and captions and a few paragraphs.
This is sensationalism. The complexity of problems or contrary statistics are rarely
even mentioned. For example, virtually the entire front page of the New York Post on
Nov. 26, 1992 contained a picture of a middle-aged White woman and the headline,
CAR JACK CITY---Gutsy Grandma Battles With Thug on Bronx Street---Pregnant
Woman's Car Is Ripped Off on Upper West Side - Details Inside. Inside were only
sensational facts surrounding these two carjackings. There was no indication that
carjackings in New York had been declining for almost three years! See supra note 18.

'9 There are many subtexts here. Some are about young Black males. Others are
about single Black mothers. If this mother had a man, a hunter/gatherer, she could stay
home (where women belong?) and supervise her son. Subtexts like this make single
Black mothers the scapegoats for our social abdications.

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protest, I first establish the behavior itself as consistent with lawbreaking
found in other recognized social protests. Then I establish the conduct's
expressive content by contextualizing it at the intersection of American
popular male and young Black culture, particularly rap. My claim is that
rap, like Black music before it, can provide context and meaning to the
behavior of those who do not accept the legitimacy of their own
oppression.4

Whether behavior is a protest depends largely on how it is interpreted.
Conduct is appropriately considered a protest when the acts are openly
expressive of an oppositional social or political point of view. A protest
includes "an expression . . . of objection, disapproval, or dissent, often in
opposition to something a person is powerless to prevent or avoid: a
protest against increased taxation." 4'

The dictionary's definition of the word "protest" is a useful starting
point. First, it suggests that a protest can be an act which need not be
verbal. The example used illustrates this idea. Tax protests have been
recognized as protests over the years and many have entailed lawbreaking,
from the Boston Tea Party to refusals to pay taxes as a means of lodging
a protest against some social policy.42 Second, a protest is often an
expression against something the protestor is powerless to avoid.

Some examples from case law provide useful analogies. For example,
the conduct recognized by the Supreme Court in Texas v. Johnson as part
of a protest shares some common features with protest joyriding. 43 In that
case, a demonstrator against former President Reagan and certain
corporations based in Dallas protested by burning a United States flag. The

o See John 0. Calmore, Critical Race Theory, Archie Shepp, and Fire Music:
Securing an Authentic Intellectual Life in a Multicultural World, 65 S. Cal. L. Rev.
2129, 2133, 2134 n.18, 2147, 2151, 2229 (1992) (Black music as a cultural
manifestation in the voice of the oppressed, facilitates understanding Black perspectives
by synthesizing and refining a lifestyle and world view on the middle road between
invisibility and anger).

41 The Random House Dictionary of the English Language (2d ed. 1987).
42 United States v. Catlett, 584 F.2d 864, 865 (8th Cir. 1978) (protesting perceived

unjust military tactics in Vietnam).
43 491 U.S. 397 (1989). By referring to Johnson, I do not suggest that whether

conduct is a protest is determined only by courts. Courts just determine whether
conduct is entitled to be considered "speech" for first amendment purposes. United
States v. O'Brien, 391 U.S. 367, 376 (1968). By offering this construction, I do not
claim that young Black males could sustain the legal burden of establishing their
conduct as expressive from the perspective of the dominant group's courts. Clark v.
Community for Creative Non-Violence, 468 U.S. 288, 293 n.5 (1984). Whether, from
the vantage points embedded in the lives and activities of young Black men, their
conduct is a "protest" is an independent question. Reference to what and how courts
have determined this is useful only as a comparison.

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Court contextualized this by recognizing it as part of a larger demonstration
during which criminal laws were violated. The flag had been stolen from
one of the corporate buildings by a fellow demonstrator. Other
demonstrators spray painted walls of buildings owned by the corporations
and overturned potted plants. According to the Court, demonstrators broke
the law to draw attention to themselves while expressing anti-nuclear
sentiments understood by their peer group and some of the public.

Clearly, there are distinctions between the two contexts. In Johnson,
the protesters focused on a particular issue; they had an audience; and the
audience was aware of the protest. These factors are less clearly present
in the context of protest joyriding. Nevertheless, several features of the
protest in Johnson are comparable to those found in protest joyriding.
First, the conduct involved minor crimes not entailing violence against
people or the promotion of the long-term economic gain of the
demonstrators.' Second, the crimes were not done in a manner designed
to avoid detection. To the contrary, the style of the conduct was high-
profile and demonstrative, designed to attract attention, including the
attention of the police. Third, the conduct was reasonably understood as
expressive of a social or political protest.45

First, as assumed by the proponents of tougher laws, the youngsters
involved in protest joyriding are cognizant that it is considered relatively
minor lawbreaking. Most know this either through direct prior experience
with the criminal justice system or vicariously through their peers. That is,
these youngsters know that they are not likely to be punished severely if
caught. In addition, this awareness is indicated by their behavior. They
control and taunt the police, daring them to chase, knowing the police
cannot pursue them because their crimes are not serious.' If cornered by

" This first comparative feature is not essential to characterizing behavior as a
protest. Acts can be a protest if they involve felony level crimes like assassinations or
violence. See infra note 133. These features, however, are not present in the cases
used for comparison here or protest joyriding.

" These features are also found in other cases of social protest. See, e.g., Brown
v. Louisiana, 383 U.S. 503 (1966) (sit-in by Black students in "white only" library to
protest Jim Crow segregation); United States v. O'Brien, 391 U.S. 367 (1968) (burning
of a draft registration card to protest the Vietnam war); Clark v. Community for
Creative Non-Violence, 468 U.S. 288 (1984) (involving an unlawful demonstration in
Lafayette Park to protest homelessness).

" The police are prohibited from the chase unless a violent felony has occurred.
Michael Marriot, Mayor Offers 12-Point Proposal To Reduce Car Thefts in Newark,
N.Y. Times, Aug. 14, 1992, at B4. The good reasons for this are almost never given
media attention. It may be more dangerous for the police to chase than not to chase.
Chases increase the risk to the youngsters, the police, and the public. They also may
create tort liability. See, e.g., J. Whetsel & J.W. Bennett, Pursuits: A Deadly Force
Issue: Liability Issues and The Police Executive, 59 Police Chief 30-1 (1992). A

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the police, these youngsters scatter on foot, knowing the police cannot shoot
fleeing non-felons. This legally sophisticated behavior reflects knowledge
that their lawbreaking is minor.47

With respect to the next feature, despite the fact that the youngsters
know their conduct is criminal, protest joyriding is done openly and
conspicuously. It appears purposefully designed to attract and then to defy
the police. While their behavior is defiant, the actors do not necessarily
want to be caught. The youngsters drive noisily and make 360-degree skid
marks on the streets, called "doughnuts," by driving in circles at high
speeds. This highly stylized driving is done at locations known to the
police.48

Such behavior is distinguished from traditional joyriding where
youngsters try to avoid detection and behave as if they were lawfully in
possession of. the cars. Like the conduct in Johnson, the confrontational,
open, and conspicuous fashion of this joyriding is designed to send a
message to society through lawbreaking. The behavior is demonstratively
oppositional.

This brings us to the third feature. The conduct is a public display of
group feelings, communicative, or expressive acts understood by like-
minded people. The locations and approximate times of protest joyriding
are known to peers who come to observe the nightly joyriding. When the
joyriders dare the police, it is a communicative act with peers. The
observers see, and many admire, the defiance against the police who are the
symbolic enforcers of the social order. Their shared antagonism confers
status on young men based on how daring and frequent their oppositional
conduct. But what is the political or social expression entailed in the
demonstration?

Whether conduct is expressive depends upon its context. Sometimes
the protestors more or less articulate their grievances and the lawbreaking
is understood to be an expression thereof. For example, the vandalism and

tragic incident illustrates this point. A woman passenger in a car was killed when hit
by a stolen car driven by a 16-year-old being pursued, but not chased by the police.
Joseph F. Sullivan, Four Are Killed In 2 Car Thefts In Newark: Worse Night in
Plague of Teen-Age Joy Rides, N.Y. Times, Nov. 12, 1992, at 31.

4' At times, youngsters escalate from joyriding to assault by ramming the stolen
vehicles into police vehicles. My comments about joyriding do not extend to this
behavior. While this too could be a protest, the seriousness of the conduct matters.
Violence against people as a social protest has a greater moral burden to bear,
especially to those of us who want to transform America into a society more respectful
of all human dignity.

48 N.R. Kleinfield & Michael Marriott, On Stolen Wheels, Newark Youth Defy
Authority, N.Y. Times, Aug. 10, 1992, at Al. So well known are these locations, that
the police know where to lie in wait for these joyriders. See Caesar story, infra text
accompanying note 108.

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flag theft in Johnson were considered part of a protest because they
occurred in the context of an avowedly political demonstration. Such an
articulation is not, however, required in order for conduct to be a protest.

A protestor need "not choose to articulate his views through printed or
spoken words . .. [Tihe nature of [the] activity, combined with the factual
context and environment in which it was undertaken [can] lead to the
conclusion that he engaged in a form of . . . expression." 49  To be
expressive, conduct must be "intended to be communicative and that, in
context, would reasonably be understood by the viewer to be
communicative."' In a world of conflicting realities, this test translates
into what a reasonable young Black person (in Newark) would understand
the conduct to signify.5

To discern this, it is necessary to understand the unique nature of most
oppositional behavior among oppressed peoples. Often communications
among the oppressed are characterized by "hidden transcripts." "Every
subordinate group creates, out of its ordeal, a "hidden transcript" that
represents a critique of power spoken behind the back of the dominant. "52
These transcripts are the product of mutual communication within oppressed
groups. This is the more or less clandestine discourse of subordinate
groups among their own members. This communication may be quasi-
public, but its full meaning is kept beyond the sight of dominant groups.
The text of hidden transcripts often consists of symbolic cultural acts,
designed to communicate opposition without direct confrontation.

Blacks are, of necessity, masters at constructing hidden transcripts.
Indeed, much of Black culture arises out of such transcripts. Having hidden
transcripts is an old tradition in Black communities. It is the activity of
which W.E.B. DuBois wrote when he described the "double life with
double thoughts, double duties, and double social classes" giving rise to
"double words and double ideals" that "tempt the mind to pretense or

9 Spence v. Washington, 418 U.S. 405, 409--10 (1974).
51 Clark, 468 U.S. at 294.

' While courts define what is "reasonable" in cases, I concede no such power in
interpreting what young Blacks understand their acts to signify. My use of this
language only reflects that

knowledge of the oppressor
this is the oppressor's language
yet I need it to talk to you

Adrienne Rich, The Burning of Paper Instead of Children, in The Fact of a Doorframe
117 (1984).

2 See James C. Scott, Domination and the Arts of Resistance: Hidden Transcripts
(1990) [hereinafter Scott].

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revolt, to hypocrisy or radicalism. "53  Historically, it is exemplified by
slaves' pilfering of the master's goods, while maintaining the public posture
of being a "good" house or field slave. It is also exemplified by the
language, walk, dance, music, rhyme, and rap which constitute Black
American male "cool. ,,54 Whites can live and die in the midst of Blacks
and know comparatively little of these ever-changing transcripts .5

Two contemporary illustrations of hidden transcripts are styles of dress
and of language. Many inner city young Black men wear their pants low
around their hips and leave their sneakers untied. These styles, which
developed initially in jailhouse culture where both belts and shoe strings
were prohibited, have been adopted outside jail as anti-normative symbolic
counters to the clothing styles of White males. In language, young Blacks
are constantly creating hidden transcripts, often by inverting the meaning
of words as used by Whites. Several examples are the use of "bad" to
mean boldly or terrifically good, "nigga" to be an endearing term, "stupid"
to mean superlative, and "dope" to mean "fly," "fresh," or wonderful.
Finally, other terms from these hidden linguistic transcripts are pertinent
because of their implicit references to cars. These include use of the words
"gassed," or "gassed up," to mean to fill someone with flattering words to
get what you want, as in gassing up a girl.56 These ever changing hidden
transcripts are developed and acted out where young Blacks make their
culture, on their turf, the inner-city streets.57

To make these transcripts partially explicit, to construct their text, I
will discuss that part of American popular culture which emphasizes a
connection between materialism, masculinity, and the possession of a car.
This is America's voice, setting standards and making implicit promises.
An understanding of this context aids in understanding the rise of rap. This
too is America's voice, but often a more strident one, telling people's
stories of disappointment and frustration.

Young Black males' knowledge of the material norm is based in part
on the media. They see the American Dream portrayed in the Gold Card

5 W.E.B. DuBois, The Souls of Black Folks 221 (1969).
5' Richard Majors & Janet Mancini Billson, Cool Pose: The Dilemmas of Black

Manhood in America (1992) [hereinafter Cool Pose].
51 Lawrence Levine, Black Culture and Black Consciousness: AfroAmerican Folk

Thought From Slavery to Freedom 101 (1977) (reporting a Black man's speech to
White abolitionists).

56 In her hip-hop song with Grand Puba, "What's the 411?," Mary Jay Blige sings:
"I don't have no time for wham, bam, thank you ma'am. Gas-me-up, get me drunk,
hit the skids and scram." Mary Jay Blige, What's the 411?, on What's the 411? (MCA
Records, Inc. 1992).

57 Cool Pose, supra note 54, at 85--86.

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and Beverly Hills 90210. Without going into detail, it suffices to say that
this is a world in which happiness is often defined in material terms and by
a culture of consumerism. Some features are worth special mention: cars
play a central and defining role in American materialism. "A car is not just
transport; but a speech act . . ,58 They appeal to sexual fantasy, status,
power, and wish fulfillment, especially escape from everyday life. 9

Today, these wishes include immortality, or at least some immunity against
the risks of driving which is offered by car safety, handling, and durability.
The more car you have, the more of your wishes can come true. These
wishes are found in cars like the Honda Accord and its upscale cousin, the
Acura Legend. These cars are among the most popular with Americans,
including not coincidentally, joyriders.'

This defining relationship between people and cars is particularly
powerful for men. Cars are a key possession, almost necessary to obtaining
happiness and women. This vision, which is both sexist and materialistic,
is also very American. While there are exceptions, manhood is often
symbolically defined through a car.6 The man with the best car is
portrayed as the man who has the most status and freedom and as the man
who gets the best woman. This symbolism is reflected in popular culture.
For example, it is explicit in the music of New Jersey's Bruce Springsteen.
In his music, cars are central and defining symbols of the relationship
between men and women, and metaphoric vehicles to redemption, freedom,
and escape from class boundaries.62

American consumerism has another feature that helps define the
context of the joyriders' conduct. Advertising misleadingly suggests that

" John Fiske, Understanding Popular Culture 34 (1989).
19 See Elizabeth Mensch & Alan Freeman, Efficiency and Image: Advertising as

an Antitrust Issue, Duke L.J. 321, 364 (1990).
60 Cf. James Harney, It's a Crime of Opportunity, but Thieves Do Have

Preferences, USA Today, Oct. 7, 1992, at A2 (noting that Hondas and Acuras are the
preferred cars of joyriders).

6 See generally, Marianne H. Whatley, Raging Hormones and Powerful Cars:
The Construction of Men's Sexuality in School Sex Education and Popular Adolescent
Movies, 170 J. Educ. 100 (1988).

62 Bruce Springsteen's earlier music illustrates the general cultural relationship
between working class men and their cars. He portrays cars as essential to relationships
with women and as vehicles to freedom. For example, in "Thunder Road" he sings:
"All the redemption I can offer, girl, is beneath this dirty hood .... We got one last
chance to make it real. To trade in these wings on some wheels . . . .Riding out
tonight to case the promised land. Oh-oh Thunder Road . . . .And I know you're
lonely for words that I ain't spoken. But tonight we'll be free .... And in the lonely
cool before dawn you hear their engines roaring on ... . It's a town full of losers and
I'm pulling out of here to win." Bruce Springsteen, Thunder Road, on Born to Run
(Columbia Records - CBS Inc. 1975).

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materialism is democratic. That is, it implies that things are available to all
on an equal opportunity basis.63

Cars are an important part of this democratic consumerism. While a
hierarchy is maintained through size, options, and price, if you cannot
afford to pay for the best now, equality can be purchased on credit. This
creates the expectation that all you have to do to have nice things, like cars,
is to be an American (with credit) and want nice things. Democratic
materialism creates a social contract: the promise that consumerism and the
manhood it supposedly can buy are available to all Americans.

The background role of the law is to maintain the social order
underlying these promises. Property rules tell us to respect others' property
because our property will be protected. This promise is enforced through
the criminal law, particularly by the police. This is another part of the
social contract.

Young Black men have bought into the illusion of democratic
consumerism. It creates expectations which America is not prepared to
fulfill. Their youthful impression is that everyone has nice things, except
in their neighborhoods. White poverty and angst are invisible.

The symbolic connections between cars and American manhood have
not escaped young Black males. Some believe in cars as symbols of
freedom and manhood. To be a "real" man you must have a car, and
preferably a nice one.' This is reflected in Naughty by Nature's rap.65

I couldn't keep a girlie.
They wanted kids with cars of chrome.
Some life---if you didn't wear gold your life was old...
and you had no juice.

Yet young Black men also believe that America has broken its
promises. The avenues to participation appear all but closed to them, and
their belief has some underlying justification.' Their inheritance is an

63 See R. Maarchand, Advertising The American Dream: Making Way For

Modernity, 1920-1940, 217--19 (1985). For an overview of the social history of
consumerism and its illusory appeal to economic equality and gender imaging, see
Mensch & Freeman, supra note 59, at 354--66.

1 Cool Pose, supra note 54, at 82.
65 Naughty by Nature, supra note 1. Rap, when its subject is oppressive social

conditions, is an artistic manifestation of the hidden transcript.
I Young Black men, like many working class Americans, have been excluded

from the economic structure. "Free trade" and changes in the economy have devastated
their job opportunities, while favoring those of the most privileged. See, e.g., Thomas
J. Lueck, Trade Pact With Mexico Expected to Have Mixed Impact on Employers,
N.Y. Times, Oct. 13, 1992, at B5 (reporting loss of low-skilled employment as a result
of the Free Trade pact). This exclusion is symbolically reflected in the exclusion of

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inversion of the images of success. Their births are not celebrated but
stigmatized,67 and their lives are perceived as, and composed of, much
systemic exclusion. This leads to a world view that is in opposition to
mainstream society. Mostly, this exists at the level of the hidden
transcripts, but at times it is verbalized, as in rap, or acted out using real
life symbols, as in protest joyriding.

Rap reflects this sense of systemic exclusion and stigmatization. With
its ironic title, "Everything's Gonna Be Alright," Naughty by Nature sings
of the lives of young Black men, lives which are characterized by going up
against a world where their family structure, age, race, gender, and class
status made them "misfits" with bad luck even in school. Being from
single-parent poor households, living in horrible neighborhoods, and being
Black with "nappy hair" made them unemployable losers. They sing of
these exogenously imposed realities and the futile necessity of their self-
destructive challenges. The only way to get cars is to steal them, "get
scars,"68 and live in a jail cell. Although there must be a better way to
achieve these goals, they do not see it. This song, popular at the time
protest joyriding began, manifests the hidden transcript underlying protest
joyriding. Young Black men see no one as enforcing the American promise
on their behalf. For example, their property is vulnerable everyday on
streets from which there is no escape. This too breaks the social contract
and raises the question, why should they respect a system which protects
property that does not and probably never will benefit them? So they
protest. They challenge their fate in the only way they know how, with
brief moments of glory, possessing other people's cars.69 Their actions

many young Black men (and others) from unemployment statistics.
67 The feeling of being stigmatized from birth is in part a response to attacks on

the structures of most poor urban Black families, which are headed by mothers. Dan
Quayle's attack is among the most infamous. John E. Yang & Ann Devroy, Quayle:
"Hollywood Doesn't Get It": Administration Struggles To Explain Attack of T.V.'s
Murphy Brown, Wash. Post, May 21, 1992, at Al. Officially, 60% of Black
households are single parent households. Tamar Lewin, Rise In Single Parenthood is
Reshaping U.S., N.Y. Times, Oct. 5, 1992, at Al (common law relationships are not
reflected in these statistics). The varied historical structures of American families are
ignored by these attackers. See Steven Mintz & Susan Kellogg, Domestic Revolutions:
A Social History of American Family Life (1988).

See supra note 1 and accompanying text.
9 While not referring to criminal behavior, Springsteen echoes this sentiment in

"Born to Run." He sings: "In the day we sweat it out in the streets of a runaway
American Dream. At night we ride through mansions of glory in suicide machines.
Sprung from cages out on Highway 9 Chrome wheeled, fuel injected and steppin' out
over the line. Baby this... [town's] a death trap, its a suicide rap. We gotta get out
while we're young. Cause tramps like us, baby we were born to run." Bruce
Springsteen, Born to Run, on Born to Run (Columbia Records - CBS Inc. 1975).

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are symbolic protuberances from their hidden transcripts. As Justice
Kennedy stated, "symbols often are what we ourselves make of them.""0

These young people have made stolen cars their symbols, as others made
a stolen flag theirs. That a hidden transcript underlies this joyriding is
reflected in the very cars they select. Recall that in the New York City
area, including Newark, the most frequently selected cars are the Honda
Accord and its up-scale cousin, the Acura Legend. This is not random
conduct. It has a pattern and meaning. These young men cannot be the
joyous Yuppies they see on television riding along in the Legend, free on
the country road,7 but they can joyride in the Yuppies' cars. They have
the power to protest by inverting the symbols of the Yuppies' manhood,
status, and safety. They become suicidal freedom riders in somebody else's
car.

72

By joyriding in these pop symbols, the normative power relationships
are inverted: young Black men are in control. They desecrate status
symbols of the dominant, as they defy the police authority that keeps their
material exclusion in place and treats them with disrespect on their turf.73

Protest joyriding is a wilful breach of the normative order of domination,
a throwing down of the gauntlet. It is the difference between pilfering and
the open seizure of goods that occurs in riots. 74

70 Texas v. Johnson, 491 U.S. at 421 (Kennedy, J., concurring).
71 Another Legend commercial portrayed two White Yuppies leaving their office

to challenge each other in a basketball game. They raced to the inner-city basketball
court in their respective Legends and played out the game.

72 See Richard Perez-Pena, Friends Mourn A Youth They Say Was Reforming,
N.Y. Times, Nov. 12, 1992, at B9 (reporting three deaths, two of fourteen year olds,
in a high-speed suicide ride in an Acura Legend. Friends said they would not be
deterred).

" This is part of a larger turf war between indigenous adolescent Black males in
Newark and the largely White male police force sent in to protect property and to keep
Black males in their subordinated places. See, e.g., Mike Davis, City of Quartz:
Excavating the Future of Los Angeles 268--322 (1990) (describing territorial
confrontation between gangs in Los Angeles and police).

14 Scott, supra note 52, at 203. In a sense, the expressive content of protest
joyriding is like that found in modern urban riots. In both, the targets of the conduct,
often the police, are selected because of their symbolic significance. The lawbreaking
is initially confusing to those without access to the underlying hidden transcripts. The
conduct appears irrational and self-destructive. The expressive content is translated into
words only after the fact. America has understood, largely through contextual
inference, that riots are expressive of a protest over not just the events which triggered
them, but also general conditions, i.e., being excluded from the rioters' perception of
the American Dream. In riots, like protest joyriding, the expressive acts are futile and
alienate many people.

Newark Mayor Sharpe James implicitly acknowledged that some joyriding is a
protest against poverty. He noted the need for recreational programs, but said: "Being
poor is no excuse for committing crime." Joseph F. Sullivan, Florio Vows to Help

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My argument that protest joyriding is expressive diverges from
premises often held by contemporary social critics of dominant hegemony.
Namely, that in order for action to be truly oppositional in significance, it
must proceed from a perspective that stands outside of the ideology of the
dominant culture.75

This conception understates the oppositional capacity of oppressed
peoples, by insisting that a self-consciousness outside of dominant values
must precede genuine protest. While young Black males are acting because
of their exclusion from normative society and its promotion of a sexist
materialism, their acts are nevertheless appropriately considered protests
with an alternative perspective. Their world is one in which they invert
normative power relationships, as is done in some aspects of their hidden
transcripts. Poor young Black men control property, not the dominant
Whites who have broken their promises. "Falsely conscious subjects are
quite capable, it seems, of taking revolutionary action. " 76

Like Professor Scott, I contend that the subordinated have considerable
imaginative capacity, which need not be endorsed in its entirety to
recognize that it has its own implicit counter-hegemonic drive and
conception of possibilities. Rather than conceptualizing radicalism as
requiring a self-conscious rejection of dominant norms, imagine a "gradient
of radicalism in the interrogation of domination. The least radical step is
to criticize some of the dominant stratum for having violated the norms by
which they claim to rule; the next . . . is to accuse the entire stratum of
failing to observe the principles of its rule; and the most radical . . . is to
repudiate the very principles by which the dominant stratum justifies its
dominance. ,77 Protest joyriding is closest to the first, albeit least radical
step, in that it criticizes and, at least to some extent, repudiates the social
contract as not working for young Black males.

While this conduct is not the sympathetic, articulate, dignified,
strategically non-violent conduct of the Black civil rights movement, this is
protest nevertheless. These protestors do not sing songs with the positive
messages of "We Shall Overcome." Their songs, like "Everything's Gonna
be Alright," say with "four scars, stolen cars, and a black jack," not to

Newark Fight Car Theft, N.Y. Times, Sept. 8, 1992, at B1, B4.
7' For example, Gramsci suggests that "hegemony works primarily at the level of

thought as distinct from the level of action .... [Tihe active man-in-the-mass has a
practical activity, but has no clear theoretical consciousness of his practical activity.
• . . His theoretical consciousness . . . [often] does not permit of any action, any
decision, or any choice, and produces a condition of moral and political passivity."
Antonio Gramsci, Selections from the Prison Notebook of Antonio Gramsci 333 (1971).

76 Scott, supra note 52, at 78.

" Id. at 92.

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expect positive responses from those who do not see themselves as living
in a positive world. Protest joyriding, in the lexicographer's words, is
protest because it is "an expression . in opposition to something [the
protestors are] powerless to prevent."

II. MAINSTREAM POLITICAL AND JUDICIAL
CONSTRUCTIONS: THE BANKRUPTCY OF PROBLEM

SOLVING THROUGH MORE CRIMINAL LAW

[N:] And now you want me to rap and say
something positive.

.Well positive ain't where I live---
I live right around the corner from
west hell, two blocks from south shit
and once in a jail cell.
The sun never shines on my side of
the street!...
But I'm the one who has been
labelled as an outcast.
They teach in school that I'm the
misfit.
But I'll slap them backwards.
That's what you get for fucking with
a ghetto bastard.
If you ain't never been to the ghetto,
don't ever come to the ghetto, 'cause
you wouldn't understand the ghetto.
Stay the fuck out of the ghetto.7"

Death is ever present for young Black men. It is on America's streets.
It is guns in the hands of other young Black men or the police. It is high-
speed races against themselves in stolen cars or chases by the police.79

The law cannot threaten young Black males any more than the streets
already do. Threats of penalties, including state sanctioned death, are just
gestures to Black adolescents who believe that they will never die, and
simultaneously, that their lives are worthless. The loss of liberty to people
who see themselves as imprisoned in ghettoes is only a modest deterrent.
As Naughty by Nature suggests, jail may be just one other hellish place

78 Naughty by Nature, supra note 1.

7 Statistics show that 93% of the Blacks murdered in 1990 were killed by other
Blacks. 1990 F.B.I. Uniform Crime Rep. for U.S. 11 (1991). Statistics also
demonstrate that Blacks are shot by the police in numbers significantly disproportionate
to their numbers in the local population. William A. Geller & Michael Scott, Deadly
Force: What We Know, Police Executive Research Forum at 147 (1992).

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Columbia Journal of Gender and Law

young Black men expect to live or die. In this context, society may have
reached the limits of criminal sanctions to deter behavior.

These perspectives are not well understood by government officials
trying to solve, in particular, the problem of protest joyriding. From the
perspective of most lawmakers, the problem is conceived in terms of the
individuals who break the law, not groups responding to underlying social
conditions. This perception shapes responses. Lawmakers conclude that
what is needed is not the development of a people, but the control of
individuals through criminal sanctions, especially more jails. As a result,
legislators pass more laws, the executive enforces them, and the judiciary
reviews them within constitutional doctrines designed to sustain and
legitimate all laws but the most irrational, explicitly unfair, and biased.
This is the third conflicting reality.

In this Part, I shall articulate the legal construction of protest joyriding,
distinguishing it somewhat from both that of the media and significantly
from that of some young Black men. In the process, I shall critique this
construction by pointing out ways in which its assumed constants do not
hold true. In addition, I shall outline constitutional doctrines, showing they
have limited capacity for incorporating the perspectives of young Black
men.

In Newark, New Jersey, as a result of a largely media created
perception of an increase in auto theft related crimes, the Governor, Mayor,
and others called for and helped enact tougher laws. These included: a
local option curfew statute for all young people, changes in the penalties for
various auto theft related crimes, including a new crime for causing a death
while trying to elude the police, mandatory custodial terms and community
service for those trying to elude the police and for first time juvenile
offenders, and provisions for parental accountability for stolen cars and
breach of curfews.'

These approaches are in theory rationally based. That is, the laws are
intended to accomplish some legitimate governmental objective. Yet in the
contemporary media shaped arena, politicians are expected to comment on
and solve problems in an MTV millisecond. Fact-finding and deliberative
policy formation are sacrificed as simplistic sound bite solutions to sensitive
complex problems are encouraged. 8 Facts not brought to the public's

o See Sullivan, supra note 74, at BI; Wayne King, Bills Against Car Thefts Gain
in Trenton, N.Y. Times, Oct. 20, 1992, at B6. See discussion, infra notes 114--32 and
accompanying text.

"' For example, after a highly publicized, particularly violent weekend, when four
people died in Newark accidents related to stolen car joyriding, and in response to the
apparent ineffectiveness of their new laws, members of the New Jersey Legislature
called for yet tougher laws and even more control. Said one Assemblyman, "The crime

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attention by the media get lost in the shuffle. The expedient, safe, and
political response is to suggest more control.

At the outset, note that the legal construction generally differs from
both that of the media and young Black males. Both the media and young
Black males see these problems as group based problems, not just individual
problems. Black males are explicit about this, and the media's construction
implicitly reaches a similar conclusion through its use of stereotypes. The
dominant legislative approach is different in that it assumes that these are
individual acts of criminal behavior. This construction draws on the
prevailing theories underlying the use of criminal laws to control individual
behavior and is most vulnerable to judicial challenge when it varies from
controlling individual behavior to controlling group behavior.

The traditional goals of criminal penalties are deterrence, retribution,
rehabilitation, and incapacitation.' In addition, some argue that the
criminal law has a moral educational function in the sense of signaling
strongly held social values in a way that changes the underlying values of
the population and not just their behavior.' At a minimum, laws must be
rationally based, that is, they cannot be arbitrary or based on race or gender
without compelling or substantial justification. Each of these goals is
considered here in theory and in light of any pertinent social scientific
evidence data.

With respect to auto thefts and juveniles, there is shockingly little
social scientific evidence as to what mix of law enforcement, tougher
criminal laws, and non-coercive intervention tools work.' There is
relatively little research about the causes and cures of property related
juvenile crimes, probably because it is assumed that teenagers are just like
adults.'

is spreading at an epidemic proportion, and we will not stand for it." Wayne King,
Legislators Form Panel On Car Theft In Newark, N.Y. Times, Nov. 13, 1992, at B4.

82 See, e.g., Harmelin v. Michigan, 111 S.Ct. 2680, 2683 (1991) (Kennedy, J.
concurring); W. Lafave & A. Scott, Substantive Criminal Law 31--36 (1986).

83 See, e.g., Kenneth G. Dau-Schmidt, An Economic Analysis of the Criminal Law
as a Preference Shaping Policy, 1990 Duke L.J. 1.

' Little research has been done, and not much since the early 1980s. See Higgins
& Albrecht, supra note 25, at 29.

85 Over the last decade, it has been increasingly assumed that there is no difference
between teenage and adult lawbreakers. Younger lawbreakers are just younger
individuals who should be treated like adults. See generally, Martin L. Forst &
Martha-Elin Blomquinst, Cracking Down on Juveniles: The Changing Ideology of
Youth Corrections, 5 Notre Dame J.L. Ethics & Pub. Pol'y 323 (1991) (noting the
treatment of more juveniles like adult offenders and the harsher penalties imposed on
even those that remain in the juvenile justice system); Ira M. Schwartz et al., Business
as Usual: Juvenile Justice During the 1980's, 5 Notre Dame J.L. Ethics & Pub. Pol'y
377 (1991) (discussing some of the effects of the increasing tendency to incarcerate

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Turning to the five bases for using criminal sanctions, we begin with
deterrence theory to explore whether it can justify some of the harsher
approaches being proposed. I shall discuss how these theories apply to
joyriding, and refer to their application to other auto theft crimes for
comparisons.

Under deterrence theory, the higher the risk of criminal penalty, the
more individuals should avoid the behavior. This theory assumes the
existence of individual rational decision makers, capable of realistically
weighing the costs and assessing benefits.' In attempting to increase
deterrence, there are two components that can be varied, the penalty and the
likelihood of detection. The more serious the problem, the more either or
both of these components can be increased.

From the criminological perspective it is necessary to first calibrate
antisocial behavior, like joyriding, in relation to other behavior. The
current calibration of the criminal law with respect to auto thefts makes
sense from this model of criminals as rational decision makers. In broad
outline there are three levels of crime: joyriding, auto theft, and car
robbery, that is, "carjacking." Penalties increase from joyriding to car
robbery to create greater disincentives for the more serious crimes.

Any attempt to change the penalty for one must take into account the
penalties for the others, as well as the penalties for other crimes. These
policy choices are complicated and must be done with deliberation and care.
For example, while the aggregate of problems associated with auto thefts
are serious, not all are equally serious, and in the aggregate, auto theft
problems may not be more serious than those associated with bank fraud or
drugs. The importance of proper calibration cannot be overstated.
Mistakes can create unintended incentives. For example, if the penalties for
joyriding were increased to the point where they were close to car robbery,
society might actually encourage more robbery and less joyriding. If to
avoid this, society increased the penalties for car robbery and these
penalties approached those for murder, then murder might be
unintentionally encouraged. If the victim is murdered, it is less likely the
criminal will be caught, and if the penalty for the murder is no more than
that for the robbery, the miscalibration of penalties could encourage not less
robbery, but more murder. 7 Maintaining different levels of punishment

juveniles for less serious offenses). There is little to no evidence that this approach is
deterring crime. Simon I. Singer & David McDowall, Criminalizing Delinquency:
The Deterrent Effects of the New York Juvenile Offender Law, 22 Law & Soc. Rev.
521 (1988).

86 See, e.g., Steven Shavell, Criminal Law and the Optimal Use of Nonmonetary
Sanctions as a Deterrent, 85 Colum. L. Rev. 1232, 1236 n.15 (1985).

87 Id. at 1233--36.

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for different crimes makes sense, but more punishment is not always going
to produce the desired results. There are limits to the use of criminal
sanctions to control behavior.'

There is another problem with deterrence theory. The general
assumption in deterrence theory is that the legal punishment offsets the
motivation. Motivation is presumed to be constant across all offenders
(although not across all crimes)., 9  There is an assumption of one
universal "reasonable person." This presumption may not hold true with
auto thieves. That is, the offender group characteristics may be different
for different crimes. There are at least three and possibly four distinct
groups. There are at least (1) joyriders, (2) those taking cars with an
intention to convert them permanently, and (3) those willing to use force to
steal. A further possible refinement would distinguish between, as I have
suggested, joyriders in general and Black protest joyriders.

Deterrence theory appears best suited for adults intending to convert
cars permanently. The crime of auto theft is an economic crime requiring
an intent to deprive the owner of the car permanently to make money. This
rational albeit illegal conduct ought to be responded to in an appropriately
calibrated regime of laws and enforcement in expected ways.' Stealing
or trading in stolen cars or their parts should be deterred through somewhat
harsher penalties and more certain criminal law enforcement. 9'

Beyond this application of deterrence theory in an economic arena, its
basic assumptions break down in other areas. Motivation for crimes may
not be constant for offenders. For example, the rational person model on
which deterrence theory is predicated might not hold true for those stealing
cars because of drug habits. Treatment might be more effective than
prison. 92

88 Cf. Michael H. Kalstein, et al., Calculating Injustice: The Fixation on
Punishment as Crime Control, 27 Harv. C.R.-C.L. L. Rev. 555 (1992) (focusing on
class as social determinant in influencing antisocial and criminal behavior).

89 Ronald L. Akers, Rational Choice, Deterrence, and Social Learning Theory in
Criminology: The Path Not Taken, 81 J. Crim. L. & Criminology 653, 654 (1990).

9 New laws and better enforcement should counter the economic incentives for
activities like chop shop operations, insurance fraud, and the export of stolen cars.
This is a significant piece of the auto theft picture. It is estimated by the F.B.I. that
insurance fraud alone accounts for 15 % of all auto theft claims. Richard Weizel, State
Vexed By Its Rank As a Leader In Car Thefts, N.Y. Times, April 12, 1992, at 1.

91 See Harney, supra note 60, at A2. The federal law which includes provisions
for marking and identifying car parts, is a sound approach to inhibiting this trade by
making detection and prosecution easier. Anti Car Theft Act, supra note 17.

91 See Kurt L. Schmoke, An Argument in Favor of Decriminalization, 18 Hofstra
L. Rev. 501 (1990) (arguing that many drug offenders are sick, not criminal). Young
Blacks are more likely to be processed through the criminal justice system even when
sick than are similarly situated Whites. Stuart L. Kaplan and Joan Busner, Racial Bias

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Columbia Journal of Gender and Law

Deterrence assumptions also may not hold true for juvenile offenders.
Adolescents may not "reason" as adults. Deterrence theories assume the
existence of rational decision maker, capable of realistically weighing costs
and assessing benefits.93 This assumption raises two issues. The first is
whether juveniles make calculations in the rational manner assumed.
Deterrence does not deter if the target group's youth inhibits adult risk
assessments, rational decisionmaking, and calculations. Adolescents may
not accurately assess the risk of punishment, for they often believe they are
invulnerable to life's risks.

There is some evidence that decisions by juveniles to abstain from
criminal behavior are not influenced by their perceptions of the certainty or
severity of punishment. This is contrary to the customary assumptions
made with respect to adult violators. For some juveniles, increasing the
risk of getting caught and the severity of punishment may increase their
likelihood of committing the crimes.' Adolescents may interpret these
actions as challenges and want to try their luck at betting against the odds.
Moreover, this behavior may vary for different kinds of crimes. This
suggests that what forms of social intervention are selected must be tailored
to specific crimes for juveniles.9" There is some other evidence that the
certainty of getting caught but not the severity of the punishment may affect
patterns of juvenile crimes.'

The existence of relatively minor penalties may be enough to deter
most joyriding.' For those who get caught in stolen cars (whether or not
they stole them), the experience of getting arrested, appearing before a stern

in the Admission of Children and Adolescents to State Mental Health Facilities Versus
Correctional Facilities, 149 Am. J. of Psychiatry 768 (1992). To the extent that grand
auto theft is a crime of opportunity engaged in by the sick, like drug addicts, greater
law enforcement may only lead to a shift in the type of crime rather than a reduction
in total crime.

93 Shavell, supra note 86.
Anne L. Schneider & Laurie Ervin, Specific Deterrence, Rational Choice, and

Decision Heuristics: Application in Juvenile Justice, 71 Soc. Sci. Q. 585, 598 (1990).
9 Not surprisingly, there is some evidence to the contrary suggesting juvenile

behavior is somewhat rational, responding to the availability and quality of jobs. Emily
Anderson Allan & Darrel J. Stefensmeier, Youth, Underemployment, and Property
Crime: Differential Effects of Job Availability and Job Quality on Juvenile and Young
Adult Arrest Rates, 54 Am. Soc. Rev. 107 (1989).

' Raymond Paternoster, Decisions to Participate in and Desist From Four Types
of Common Delinquency: Deterrence and the Rational Choice Perspective, 23 Law &
Soc'y Rev. 7 (1989).

9 The available risk prediction instruments taking into account factors such as age,
prior history, peer group, etc., have limited predictive power for recidivism. Jose B.
Ashford & Craig Winston LeCroy, Juvenile Recidivism: A Comparison of Three
Prediction Instruments, in Adolescence, Summer 1990, at 441.

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judge, and spending even a short period of time in jail and thereafter under
rigorous released supervision may be enough to specifically deter that
youngster from repeat criminal behavior.98 This evidence is consistent
with a hypothesis that greater enforcement of current laws through anti-theft
task forces may account for some of the decline in car thefts. 99 The
current laws may be adequate deterrents for most; thus new tougher laws
may not be necessary.

Next, tougher laws may not deter juvenile Black crime nor educate
Black youth in the sense of changing their values. Poor Blacks are subject
to different cultural forces than White youths. Within the contemporary
Black community, 1° it is questionable that criminal sanctions have the
kind of effect anticipated by mainstream society. Generally, it is assumed
that making certain antisocial behavior either criminal or more serious
crimes changes social values. The law is supposed to inculcate different
values by indicating social disapproval. The assumption is that negatively
labeling behavior changes people's views of it. But this theory depends for
its force on both the moral legitimacy of the lawgivers and the assumption
that disapproval by the society stigmatizes those labeled as violators of the
new legal norms.

The efficacy of tougher laws may be diluted by the normative
standards of some contemporary Black youth. Their value determinations
may be somewhat insulated. Being labeled criminals may not stigmatize
offenders where jail has been normalized and the expectation of being sent
to jail is considered an inexorable Black fate. Although misunderstood by

9 There are model programs of intensive social service intervention with the
youths and their families which offer promise. Felicia R. Lee, Trying to Mend the Ties
That Bind, N.Y. Times, Nov. 30, 1992, at BI. While these programs hold promise,
without wide scale implementation their general applicability is not known.

9 Auto thefts in Newark began to decline in 1989, one year before the police
enforcement unit was formed. Reduction in numbers of adolescents may also account
for some of the decline.

1o What this phrase means in the context of Black lawbreakers has been the subject
of scholarship. Regina Austin, The Black Community, Its Lawbreakers, and a Politics
of Identification, 65 S. Cal. L. Rev. 1769, 1810, 1817 (1992) (referring to the Black
community as variously more of an ideal than a reality, in flux, a place within which
cash might be pooled for investment, and the place, "home," to which one must return
every once in a while to interact with the folks). As used here the phrase has both a
territorial component and an emotional component, that is, a psychological connection
among Black people.

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some, particularly White lawmakers, 0 such an expectation may have
developed in segments of Black communities.

Today in urban America many young males will spend some time in
jail. °2 Current statistics indicate that Black men are more likely to be in
jail in the United States than are Black men in South Africa.0 3 Recent
studies from Washington, D.C., Baltimore, and New York City indicate
that more or less 50% of Black males in those areas were, had been under,
or were sought for criminal court jurisdiction."

When arrest and conviction are considered the norm, they probably do
not carry as much stigma. For these youngsters, challenges may be
counterproductive, increasing the tendency to rebel," particularly if
going to jail has been somewhat destigmatized and normalized among young
Black men."°6 Moreover, the degree to which harsher laws can change
values may depend upon what motivated the crimes. If some joyriding is
a form of social protest, then for these joyriders, the tougher laws will not

I A White lawmaker in New Jersey reported a story of a juvenile who said he
wanted to be arrested so he could be with his friends. His response was that tougher
laws were needed because these youngsters "should not look at incarceration like
summer camp." Wayne King, Bills Against Car Thefts Gain in Trenton, N.Y. Times,
Oct. 20, 1992, at B6. Such responses ignore the fact that when the criminal law is in
the aggregate overused as a solution to social problems, even jail can be normalized.
A primary school teacher friend tells me that when he asked his students what they
wanted to do when they grow up, a 6th grade Black boy said "Go to jail so I can get
muscles like the big guys." The ship of state's law-and-order perspective and that of
young Black men, are hopelessly passing each other in the night.

1o Don Terry, More Familiar, Life in a Cell Seems Less Terrible, N.Y. Times,
Sept. 13, 1992, at Al (reporting expectation within communities of color that young
males will spend some time in jail and that those returning are idealized by younger
males as positive role models of manly survival).

'03 According to a recent study, Black men in this country are imprisoned at five
times the rate of those in South Africa. The Sentencing Project, Americans Behind
Bars: A Comparison of International Rates of Incarceration (1992).

1o National Center On Institutions And Alternatives, Hobbling A Generation:
Young African American Males in the Criminal Justice System of America's Cities,
Baltimore, Maryland (1992); Correctional Association of N.Y. and New York State
Coalition for Criminal Justice, Imprisoned Generation: Young Men Under Criminal
Justice Custody in New York State (The Association and the Coalition) (1990)
(reporting that one in four young African American men are under the control of New
York's criminal justice system).

"05 Michael Marriot, On Meaner Streets, The Violent Are More So, N.Y. Times,
Sept. 13, 1992, at E6 (discussing the efficacy of criminal justice remedies aimed at
stricter and harsher penalties for offenses).

'" Keith Harriston, Going to Jail Is Rite of Passage for Many D.C. Men, Report
Says: Statistics on Incarceration of Blacks Challenged by City Officials, Wash. Post,
Apr. 18, 1992, at B3 (discussing increased incarcerationof Black males). The feedback
of jail culture among young Blacks is evidenced by some clothing styles. See infra
p.17.

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change their values. Lawbreaking may be motivated by group impulses of
protest, not individual cost benefit analysis. Efforts to control the
protestors without addressing their grievances may only intensify the
impulses underlying their opposition. Tougher laws may exacerbate the
problem or shift its manifestations to other areas of behavior. The other
possible reasons for greater penalties are retribution and rehabilitation.
Considering rehabilitation first, while not currently a popular criminological
theory, at least the anecdotal evidence suggests that some of the young
offenders could be rehabilitated without incarceration.

Many of the youngsters involved are reportedly bright students. No
imagination is necessary to see the connection between the failures in
educational and other socialization institutions and their delinquent behavior.
With respect to protest joyriders and some other delinquents, I might go
further. It may be precisely some of the brightest and most creative young
men in Black communities who more intensely feel their exclusion from the
American dream and rebel in self-destructive ways."°7 If there is hope in
America, if the potential of all people is assumed, then contrary to the law
and order approach of control for these youngsters, rehabilitative efforts are
necessary.

Whether the goal of retribution against these youngsters should be
pursued as logically consistent with the perspective of the control model is
a more complex subject. Given the frustration and anger felt in society, the
extent to which these feelings are motivating the movement for harsher laws
needs more frank discussion. I sense that some of what is rhetorically
justified under deterrence and incapacitation theories is a thin disguise for
a modern day retribution, an "eye for an eye."

Retribution is a double-edged sword. While society feels justified in
its anger against defiant joyriders, the joyriders feel justified in striking out
against a society whose social structure largely predetermines that their lives
will be spent on the outside looking in. Which perspective, that of society
or the youngsters, is more justified, may turn out to be a moral stalemate,
an irreconcilable conflict of perspectives, solvable only by force and power,
not by moral authority.

Moreover, retribution can encourage extreme extralegal reactions. The
case of Howard Caesar is instructive. On June 9, 1992, Caesar was riding
with others in a stolen car in Newark. As the car approached an
intersection known for protest joyriding, it made doughnuts on the street.

107 For example, a teenager recognized as a National Youth Hero by President
Reagan in 1986 for his gospel talents and work with other youths, was charged with the
unauthorized use of former Mayor, then Councilperson Marion Barry, Jr.'s car.
'National Youth Hero' Held in the Theft of Barry's Auto, N.Y. Times, Jan. 7, 1993,
at A14.

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Unbeknownst to Caesar and the other occupants, the stolen car in which
they were riding belonged to a Newark police officer. This off-duty officer
and five others waited in ambush. When they saw the car, these vigilante
police officers attempted to capture the youths inside. A policeman shot
Caesar with an unauthorized gun and then, with other officers, attempted
a cover up.°s Caesar suffered critical abdominal wounds and had at least
ten operations.9

The Caesar case illustrates some dangers of retribution. Black
youngsters should not be shot for joyriding. Adult reaction should be
proportionate to the offense and not merely reflect frustration with
delinquency. Yet the Caesar case also shows that the current approach of
leniency without close supervision and nurturing is unsatisfactory. "

The theory underlying incapacitation is that certain people are
incorrigible, and locking them up will at least prevent them from repeating
the offense for the period of incarceration. Such an approach may seem
warranted for the group of adolescents involved in joyriding as nightly
recreation. Their numbers are relatively small,"' and as they mature,
they may grow out of their rebellious behavior. At least while in jail, they
will not be stealing or riding dangerously in stolen cars.

While incapacitation for recidivist youth has some appeal, it can be
criticized. First, it may be unnecessary and more expensive than supervised
alternatives." Second, jail is not a place for youngsters to grow up. It

11 According to indictments, this was the second youth shot in a two day period
by this police officer concerning the same car. Charles Strum, 2 Officers Are Indicted
in Shooting and Cover-Up, N.Y. Times, Dec. 16, 1992, at BI.

"09 In 1992, four car theft suspects were killed by Newark police and three others
wounded. Eleven people were killed in stolen car accidents. Robert D. McFadden,
Youth Dies As Stolen Car Slams Girder in Newark, N.Y. Times, Oct. 5, 1992, at B5;
Joseph F. Sullivan, 4 Are Killed in 2 Car Thefts in Newark: Worse Night in Plague
of Teen-Age Joy Rides, N.Y. Times, Nov. 12, 1992, at BI. The community is split
over whether the police are too harsh or the penalties too lenient. Joseph F. Sullivan,
2 Funerals Ask Youths to Reject Street Life, N.Y. Times, Aug. 29, 1992, at Al.

"10 Caesar who was 18 years old at the time he was shot, had been jailed twice
before. He was first arrested at 13 and spent his 16th and 17th birthdays in juvenile
detention centers, including, in 1990 when his father died of cancer. Evelyn Nieves,
Youth's Wounds Mends As Family Speaks Out, N.Y. Times, Oct. 8, 1992, at B5.
Caesar was the product of a lower middle-class working family. Yet critics of releasing
youngsters, like Caesar, on an unsupervised basis after arrest, have a valid point. But
that does not mean that youngsters should be shot on sight.- Having beet alerted to
Caesar's antisocial behavior, society should have expended resources to supervise him,
work with his struggling parents, and channel his potential into productive activities.

.. Recidivists in Newark are a small fraction of the city's youth. Police estimate
about 80 out of more than 50,000 school-age children are repeat offenders. Evelyn
Nieves, Dreams Intact, Newark Youths Resist Violent Surrounding, N.Y. Times, Sept.
8, 1992, at BI.

112 In New York City it costs $7,500 per year to intensively supervise delinquents

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may be a schoolhouse for future criminals. Finally, the aggregate effect of
jailing so many young Black males is having disastrous consequences within
the Black community, setting questionable norms, discussed above, and
further disenfranchising the already disenfranchised." 3

Incapacitation, however, may be appropriate for sociopaths, especially
those involved in assaultive behavior like ramming police vehicles. Even
here, preserving judicial discretion and resisting the temptation to pass laws
that demand mandatory sentences may be more sensible.' 14

The prospects of changing this legislative approach appear dim. Most
legislators are committed to the paradigm of control rather than the more
difficult solutions to group based structural race and class problems.
Legislators are influenced by the media and probably will not respond with
the best interests of young Black males as their goal. They have already
heard some arguments against tough laws for juvenile crime. The nature
of representative democracy does not assure that legislators will be
responsive to the voices of young Black men.

In general, youngsters below the age of eighteen are not assured of
representation. Juveniles cannot vote and do not control wealth. It is
assumed, however, that they are virtually represented by older men and
women. Yet there may be no virtual representation of young Black males,
even by "minority" elected officials. With notable exceptions like Mayor
Kurt Schmoke of Baltimore," 5 most Black politicians speak out for only
those that vote and otherwise participate in the mainstream political
process." 6  Poor young Black males do neither, nor do many of their
relatives, friends, or neighbors. Many are from segments of Black
communities which are so convinced America's promises do not apply to

and their families versus $70,000 to jail youths. See Paternoster, supra note 96.
" Criminal convictions in most jurisdictions disqualify people from voting. They

also often prevent employment.
"" This raises the question of whether such faith can be placed in the judiciary.

With guidelines, judges, advised by lawyers and supported by supervising social
workers, should be able to make these determinations on a case by case basis for each
individual youngster.

"5 Schmoke has spoken in defense of some Black lawbreakers. See supra note 92.
116 Some of the legislation in New Jersey has been offered by Black legislators

from Newark with the support of Mayor James. I intend to cast no aspersions on
politicians like Mayor James. He has done much to revitalize the economic and social
landscape of Newark. Nevertheless, his approach has been to make Newark attractive
to mainstream business interests and the middle-class, both worthy goals. Lauren
Adams DeLeon, Newark's New Look, 4 Emerge 3, at 42 (1992). But this does little
to address the seemingly intractable problems of poor young Black males. A study of
another Black run city, Atlanta, has demonstrated that this kind of economic and social
development has little impact on less privileged Blacks. Gary Orfield & Carole
Ashinaze, The Closing Door: Conservative Policy And Black Opportunity (1991).

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Columbia Journal of Gender and Law

them that the promises of electoral democracy seem worthless too. So, they
do not bother to participate. This self-fulfilling prophecy assures the
passage of laws by those that do not represent their perspectives. Under
these conditions, the only fora within which to review these laws are the
courts.

Some new laws can be challenged on constitutional grounds. I am not
suggesting, however, that challenges should be made to all new laws.
Challenges ought not be knee-jerk defenses of antisocial behavior because
some lawbreakers are members of oppressed groups. Some behavior, like
carjacking or assaultive conduct against the police, must be controlled with
severity appropriate to the crime and the defendant. In any event, most of
these laws, such as the new ten-year penalty for causing injury while fleeing
the police, raise no substantial constitutional issues. My constitutional
review is limited to new laws related to joyriding and generalized efforts to
control and punish the youngsters and their parents. These include curfews
and parental accountability statutes, changes in minimum mandatory
sentences for joyriding, and evasion of the police. Other laws may be
proposed, but much of the same analytic framework should apply. As the
doctrines are well known, my review is cursory.

Youngsters in Newark may be subject to a curfew from ten o'clock in
the evening to six o'clock in the morning and their parents held accountable
for the violations.' 17 The new curfew statute empowers local
governments, like Newark, to pass optional curfews on unaccompanied
youths. Violations can be punished with community service and up to a
$1000 fine. It provides three general areas of exceptions: if the youngster
is (1) engaged in a legally recognized juvenile business or occupation, (2)
errands involving medical emergencies, or (3) extracurricular school,
religious, or community-based organizations and other cultural, educational,
and social events after 10 p.m.

This statute could be challenged on several grounds. While the new
statute makes some exceptions for religious and other activities as required
by New Jersey case law," 8 it still suffers from several defects found in
an earlier ordinance. First, it requires that youngsters exercise their
fundamental rights in connection with institutions. Whether, as required by
case law, this limitation is supported by a compelling state interest is not
clear since none is given in the statute or its history. Second, to the extent
that the clause in quotes is open-ended, the statute may be constitutionally
defective because it is vague and imprecise. Vagueness doctrines essentially
provide that statutory language must be capable of being understood by

117 N.J. Stat. Ann. § 40:48-2.52 (West 1992).
"18 Allen v. City of Bordentown, 524 A.2d 478, 485 (N.J. Super. Ct. 1987).

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persons of ordinary intelligence; if not, the statute does not give fair notice
of what is prohibited and denies due process. 9  Third, the law may be
vulnerable to attack because of its overbreadth, since it includes all
youngsters, not just those involved in otherwise disorderly or criminal
behavior. The overbreadth doctrine might be applicable as it prohibits laws
which do not aim with sufficient specificity at evil conduct, but sweeps
within its ambit other activities that in ordinary circumstances constitute
exercise of protected First Amendment and other fundamental liberty
interests.120 The final clause in quotes is especially troubling. It provides
too much discretion for the court. The statute attempts to address these last
two issues by requiring that clear standards in precise language must be
used to apprise juveniles and parents of that which is unlawful and to
circumscribe police discretion. Whether this is consistent with the
Bordentown case law is doubtful.'

Legislation imposing parental accountability has been criticized for
infringing upon the same fundamental interests threatened by legislation
directed toward the behavior of youngsters. Thus, if the curfew statute is
constitutionally deficient as to the youngsters, it also would fail as to the
parents. 

122

Other proposed parental accountability laws are questionable. One
would provide for parental accountability if their youngsters are involved
in auto thefts. The parent(s) would have to pay a fine and/or be liable for
community service. The statute thus makes the parents liable for the sins
of their children not through the traditional payment of money
damages, 1"3 but with involuntary servitude in the form of community
service. 24 This law seems irrational as to the parents of many of these

1" Id. at 481--82.
120 Id. at 482--83.
121 Id. at 484. Other state courts have declared unconstitutional laws passed to

prevent crime which proscribed more conduct than endangered the public by deterring
some lawful activity. For example, a law prohibiting any juvenile from carrying a
knife or other sharp instrument in New York was stricken. People v. Munoz, 9
N.Y.2d 51 (1961) (contrasting knives with brass knuckles). It should be noted,
however, that at least in New Jersey "it is within the competency of the lawgiver, in
the common interest, to declare an act criminal irrespective of the . . . motive of the
doer of the act. The Legislature may make the doing of the prohibited act criminal.
• . regardless of a corrupt or criminal purpose .... State v. Labato, A.2d 617 (N.J.
1951).

12' As noted by the court in Bordentown, there is a split of state court authority
with respect to these curfew statutes.

'23 See, e.g., N.J. Stat. Ann. § 2A:53A-15 (West 1992). Liability of parent or
guardian for willful destruction of property by infant under 18.

124 This raises novel Thirteenth Amendment questions with respect to whether
parents can be "duly convicted" for the crimes of their children.

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youngsters because it assumes that law abiding working parents like those
of Caesar and the young man featured in the 48 HOURS segment were
remiss in working while their youngsters went joyriding. While parental
accountability for the acts of juveniles should be encouraged, in the absence
of recreational and other support mechanisms, these laws are irrational.
They provide incentives for the parents not to work when there is no
evidence this would stop youngsters from joyriding."2

Moreover, the assumptions underlying these approaches are wrong.
Most parents of these youngsters are devastated when their children commit
social suicide through lawbreaking. These are, after all, their children,
their hopes, and their broken dreams. These parents need our support, not
condemnation and punishment.

A proposal to deny release of juveniles on their own recognizance is
less objectionable. This would not be preventive detention, which generally
requires a showing that the individual would present a danger to the
community. 26 Rather, this would require parents or responsible adults
to be present before a youth could be released. In light of precedent, this
should be sustainable against an attack on constitutional grounds. 27

Moreover, the proposal may be a sensible way to impress upon the youths
the unacceptable nature of their conduct, even as protest, without increasing
penalties. If augmented with social services to work with the youths'
families and communities, this would be rational.

In general, increases in minimum mandatory sentences would not
violate constitutional prohibitions. Equal protection challenges would
probably be subjected to minimum scrutiny and would be sustained if there
were a rational basis under one of the recognized criminological
theories. 2" Eighth Amendment proportionality challenges would be

'25 Cf. State v. Guminga, 395 N.W.2d 344 (Minn. 1986) (holding unconstitutional
under substantive due process a law imposing vicarious criminal liability upon an
employer whose employee serves liquor to a minor).

116 United States v. Salerno, 481 U.S. 739 (1987).
127 Schall v. Martin, 467 U.S. 253 (1984) (upholding pretrial detention of juveniles

under Eighth Amendment bail clause).
'28 The Supreme Court generally refuses to consider the "adequacy or practicability

of the law" challenged. Nebbia v. N.Y., 291 U.S. 502 (1934). Even a purely
hypothetical supposition can be used to uphold legislation. See, e.g., Williamson v.
Lee Optical Co., 348 U.S. 483 (1955). Substantive due process challenges could be
made based on doctrine that conduct may not be punished unless it bears a substantial
relationship to injury to the public. There must be evidence that tougher laws are an
effective means of dealing with the problems. Compare, State v. Guminga, supra note
125, with Town of North Hempstead v. Exxon Corp., 53 N.Y.2d 747 (1981) (holding
valid a law which prohibited self-service gas stations). These cases, however, usually
involve commercial regulations and probably would not be applied to criminal laws.
See, e.g., State v. Redman Petroleum Corp., 360 P.2d 842 (Neb. 1961); Gundaker

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unsuccessful. Reviewing courts grant legislatures substantial deference in
making phenological judgments, especially in light of differing attitudes and
perceptions of local conditions. The constitution does not mandate adoption
of any one rationale or proportionality between crime and sentence; it
prohibits only extreme sentences that are grossly disproportionate to the
crime. 

129

One final category of proposals that might be challenged are those
calling for stiffer penalties for evasive behavior while joyriding or similar
laws which treat the behavior of (non-assaultive) protest joyriding more
harshly than other joyriding. Such laws might be challenged under the
Equal Protection Clause and as First Amendment expressive conduct.

While these laws do not use explicit racial classifications, legislators
have said that "some municipalities are experiencing an increase in auto
theft committed by juveniles," a clear reference to places like Newark with
its mostly Black and Latino population. If the impact of proposed laws
were racially disparate without adequate showing of a provable difference
in the danger they pose to society, state law equal protection analysis might
be used to strike them down if it were demonstrated that facially neutral
classifications were intended to have a race-based impact. 3 '

Challenges could also be made to any laws which treat more harshly
protest joyriding than other kinds of joyriding because of its expressive
content. Based on R.A. V. v. City of St. Paul, Minnesota,' the theory
would be that the First Amendment prohibits regulating behavior because
of its expressive content. 12

Whether protest joyriding could be singled out would depend upon
how it was attempted and if the youngsters could sustain the burden of
showing the conduct to be expressive. While the Court has been willing to

Central Motors v. Gassert, 127 A.2d 566, 573 (N.J. 1956).
129 King, supra note 80.
130 Under federal standards, intentionality would have to be proven under the

rigorous standards articulated in McCleskey v. Kemp, 481 U.S. 279 (1987) (holding
that racial statistical disparity is not sufficient to overcome facially neutral governmental
action. Intentional or purposeful discrimination must be proven). Some state courts
do not adopt such rigorous standards of proof. See State v. Russell, 477 N.W.2d 886
(Minn. 1991) (holding that differentiation of penalties for possession of cocaine and
crack was not actually rationally based, only hypothetically possible, and violated state,
not federal, Equal Protection Clause).

131 112 S.Ct. 2538 (1992).
132 Special prohibitions directed against protest joyriding fall with greater force

upon individuals and groups, here young Black males, who fear majoritarian
disapproval and reprisal and should be unconstitutional. Cf. Talley v. State of
California, 362 U.S. 60 (1960). This alone might not be enough. To run afoul of
R.A.V., the law would have to regulate the expressive element of this disorderly
conduct.

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protect the burning of a cross by youthful White racists on a Black family's
lawn in R.A. V., given the Court's myopic interpretation of evasive behavior
by Black youngsters on urban streets,'33 it is doubtful that young Black
men could sustain the burden of showing that their conduct was expressive.
Yet if this burden were sustained and some of the targeted joyriding were
considered to be a protest for First Amendment purposes, any law directed
specifically at the expression might not survive R.A. V. On the other hand,
if legislation focused on the behavior, like the fire in R.A. V. ,'3" then the
statute would pass constitutional muster.'35

As this review indicates, the scope of challenges to new and proposed
laws under prevailing constitutional doctrine is fairly limited. Current
doctrine gives some protection to individual liberty, but allows the state-
wide latitude to use criminal sanctions against individual conduct. Most
new laws should survive constitutional challenge. This does not mean that
the laws are not deficient. What it indicates is that courts are not
doctrinally equipped to redress grievances raising the complaints of young
Black males as a group to the effect that America has broken its social
contracts at the intersections of their lives. These are post-civil rights
complaints, raising issues left dangling by Brown v. Board of
Education, 136 having to do with resource redistribution and substantive
social equity. These are claims for forty acres and a mule (with
compounded interest and dignity). This does not mean laws should not be
challenged; they should be, in order to encourage discourse and raise
questions about the prudence of harsher penalties and remedies. Yet the
needed policy initiatives are beyond constitutional doctrines as currently
conceived. 137

133 California v. Hodari D., 499 U.S. 621 (1991).
'3 R.A.V., 112 S.Ct. at 2544. The new law penalizing youths for injuries caused

during joyriding would not appear to be such a law since it appears tied to the conduct,
not its expressive element.

135 The Supreme Court may reconsider the breadth of R.A.V. in Wisconsin v.
Mitchell, __U.S. ,113 S.Ct. 2194 (1993), granting cert. sub nom State v. Mitchell,
485 N.W.2d 807 (1992). As recognized in R.A.V., 112 S.Ct. at 2541 n.1, 2546,
violent actions can be recognized as protests intended to send a message, but on balance
this does not prevent the government from regulating the violence. See also Clark v.
Community for Creative Non-Violence, 468 U.S. 288, 301 (1984) (Marshall, J.,
dissenting) (discussing political assassinations and bombing buildings).

136 348 U.S. 886 (1954).
131 Since San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973), the

Supreme Court has all but abdicated any role in helping to foster claims for substantive
social justice beyond the most minimal level of public education. See, e.g., Plyler v.
Doe, 457 U.S. 202 (1982). Some state courts have been more active in the limited area
of education, e.g., Abbott v. Burke, 575 A.2d 359 (N.J. 1990). Even these cases do
not begin to address the massive social deficit faced by young Black men.

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The legal regime's construction of reality is in need of reorganization
and augmentation. Excessive reliance on law and order predicated on
theories of individual lawbreaking has locked society into a futile struggle
to control human souls, who with their conflicting perception of reality,
resist because that may be their only self-affirmation. Jailing young Black
males controls their bodies, as it corrupts their souls. 3 s It makes prisons
grow, not people. 39 These souls become role models, replicated by sons,
brothers, and neighbors, recreating a caste for which opposition to society
has been normalized. Constitutional doctrine is incapable of adequately
adjudicating these phenomena.

As an intervention strategy, the attempt to control people through
criminal laws needs to be augmented with different perspectives. These
perspectives entail community-based support for youngsters and their
families while work is begun to evolve values other than materialistic
consumerism. Using the politics of identification,"4 Black youngsters
should not be written off as if they have little or nothing to contribute. 4'
Only lawbreakers in real need of control should be jailed, distinguishing
between those "who are truly deserving of ostracism and those who are not
beyond help or hope. "142 It would require the minimization of hierarchies
of oppression and the work of those who can see beyond stereotypes and
instruments of control to achieve this goal.

"38 Foucault suggests modern prisons are not only political exercises of power over
the body but also over the soul born "out of methods of punishment, supervision and
constraint." Michel Foucault, Discipline & Punish: The Birth of the Prison 29 (1979).

139 Imprisoning people is a growth industry. Whole towns, police, and correctional
unions, and business interests, exercise power to assure a steady flow of inmates. See
Don Terry, This Town Wants Convicts: Town Builds a Prison and Stores Its Hopes
There, N.Y. Times, Jan. 3, 1993, at Al. Reducing prison populations is opposed by
those with financial interests, usually White males. Cf. Selwyn Rabb, Jails Switch May
Prove Problematic, N.Y. Times, Nov. 14, 1992, at 22 (reporting how closing New
York City jails upstate will create unemployment there and the political problems such
efforts ignite).

11 The politics of identification promotes an empathy with lawbreakers as rebels
against oppression. Regina Austin, The Black Community, Its Lawbreakers, and a
Politics of Identification, 65 S. Cal. L. Rev. 1769, 1799, 1815 (1992).

141 Some Black lawbreaking can be understood as part of a liberation effort, albeit
strategically misguided and self-destructive. With this perspective, solutions may be
fashioned which harness these impulses into more productive activities. This variation
on the politics of identification is premised on the idea that in a "real black community,
everyone would be a resource, especially those who the dominant society would write
off as having little or nothing to contribute." Id.

142 Id.

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III. CONSTRUCTING NEW VISIONS THROUGH
CAMPGROUNDS OF RENEWAL

N: I'm better off dead, that's what my
neighbor said.
Some say I'm nothing but a dog now.
I answer that with a fuck you and a
bow-wow.
I been through more shit in the last
week.
I was born dead wrong. That's been
my life.
Oh---you don't know the song.
So don't say jack [shit].
Please don't say you understand.
All that man to man talk can walk---
damn.
If you ain't lived it, you can't feel it.
And all that talk about [it] won't help
it out. Will it?
But I'm the one who has been
labelled as an outcast.
They teach in school that I'm the
misfit.
But I'll slap 'em backwards.
That's what you get for fucking with
a ghetto bastard.
If you ain't never been to the ghetto,
don't ever come to the ghetto, cause
you wouldn't understand the ghetto.
Stay the fuck out of the ghetto.
Why me?
Why me?'43

Young Black males are victims and sometimes victimizers. 44

Naughty by Nature tells the young Black male story about broken promises
and defiant despair. They speak of youthful Black power exercised in
negative, often self-destructive responses. This construction of reality is
neither all right nor all wrong. It must be heard and focused upon,
however, to find better paths for them and society.

'4 Naughty by Nature, supra note 1.
'4 Even though there is no bodily harm, joyriding causes real inconvenience and

hardship to many people, including other unprivileged people. N.R. Kleinfield &
Michael Marriott, On Stolen Wheels, Newark Youth Defy Authority, N.Y. Times,
Aug. 10, 1992, at Al (citing the personal costs to Newark residents).

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Similarly, other constructions of reality must be heard but not
uncritically. The media's construction reflects real feelings and fears of the
law-abiding public, even as it reinforces stereotypes and encourages the
protest behavior by giving it high-profile attention. The perspective of
those who believe in individual responsibility and the use of criminal laws
as the primary tool for controlling behavior are both correct and incorrect.
Young Black males bear some measure of responsibility for their actions,
even if overused criminal sanctions now are counterproductive pursuits of
unachievable control. All the current constructions of reality are in need
of a social Chapter 11 reorganization.

New constructions of reality and a process to build them are necessary.
These must offer interim solutions to specific problems even as they bring
the conflicting perspectives into the same discourse for long-term social
reorganization. This latter project must be undertaken in fora which
simultaneously can include and respect the various perspectives while
challenging aspects of their goals and consciousness. This part of my
article proposes the use of outsider perspectives in ways that accommodate
uniqueness and still allow coalitions for change. It suggests minimizing
divisive hierarchies of oppression while utilizing lessons learned from
outsider perspectives to fashion new approaches to ameliorate particular
problems and address larger issues of social transformation. It concludes
with an ambitious and more indeterminate approach to evolve new visions
of community through campgrounds of renewal.

A. Better Alliances: Space for Unique Differences and
Coalitions

The oppressed must coalesce in new alliances for social justice, but
these alliances must allow space for individuality and unique group
differences. 45 Mainstream society has oppressed young Black males,
partially because the similarly oppressed do not coalesce around each
others' issues. Each group is isolated. Issues relating to the excessive use
of the criminal law as a means for controlling young Black men are seen as
separate from issues such as reproductive rights and domestic relations
which have to do with domination and control of other oppressed groups.
This isolation of issues reflects divisive competition among oppressed
peoples.

"4 Trina Grillo and Stephanie M. Wildman, Obscuring the Importance of Race:
The Implication of Making Comparisons Between Racism and Sexism (or other -isms),
1991 Duke L.J. 397.

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In some social and legal discourse, there is a contest for which group--
-and which of their academic representatives---is most oppressed. This is
an inverted "race to the bottom" of a social oppression hierarchy. The
winner (loser?) within critical circles is the most authentic and authoritative
among oppressed voices. To be an entrant, a group must fall within at least
one category of oppression.' 46

Categories of oppression reflect group-based disadvantage. They
include: race, class, gender, (physical) ability or disability, religion, and
sexual orientation. If one's group is at the historically oppressed end of one
of these classifications, one has a place in the discourse among the
oppressed. How much claim one has is often hierarchical, although
different people rank-order categories of oppression and their aggregation
differently.

The only common agreement among the oppressed is that White men
who are Christian, affluent, and straight are the quintessence of privilege
and have scant claim to be heard in the chorus of the oppressed. Beyond
this agreement, the contest is on for which group is most oppressed.
Currently, this dubious accolade might go to African American, poor,
disabled, lesbian mothers.

Rank-ordering oppressed people should be avoided; it leads to
counterproductive descension among the oppressed. By claiming that "my
group is more oppressed than your group," each group asserts that its
category or categories of oppression trump that of other groups. Instead of
working with other groups whose human potential also has been denied, the
focus for discourse becomes legitimizing justifications for why one
oppressed group deserves more resources, attention, or empathy than
another. This approach is divisive, reducing opportunities to create new
social possibilities based on coalitions aggregating the strengths of diverse
groups and new models for nurturing all human potential and talents.

This excessive focus upon the uniqueness of oppression should be
minimized for other reasons. Descension often excludes oppressed groups
with the greatest commonalities from the dominant and most privileged.
This exclusion can lead to unwise coalitions. Affluent straight White males
remain dominant by being allowed to remain the central defining, least
common social denominators of that which is good.

Excessive focus on uniqueness also oversimplifies the range and
diversity within the categories, as it tends to essentialize classifications

'" See Martha Albertson Fineman, Feminist Theory in Law: The Difference It
Makes, 2 Colum. J. Gender & L. 1, 19 (1992); Martha Albertson Fineman,
Challenging Law, Establishing Differences: The Future of Feminist Legal Scholarship,
42 Fla. L. Rev. 25 (1990).

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which are more imposed constructs than nature has given. 47 Categories
originally imposed on us must not straightjacket the development of
alternate consciousness. Understanding ourselves through the categories of
race, gender, class, etc. does not do justice to our complex social identities.
In most discussions, one is either Black or White,'4 man or woman,
straight or gay, 149 etc. Yet these categories are not toggle switches; but
approximations of more or less-shared experiences and characteristics.
They ignore the dualities, nuances, and complexities in much-experienced
reality. 's0

Nevertheless, some reliance on categories of oppression is still
necessary and useful.' Some of the least heard voices today within
social and legal discourse are those of young Black males, as exemplified

'41 Essentialism lends itself to genetic arguments and the equation of criminal
behavior with disease. In the context of criminal behavior, genetics is controversial in
part because the predisposition to disease is equated with a predisposition to commit
certain kinds of crime, usually violent. What is criminal, however, is socially, not
physiologically determined. The same act of violence may or may not be a crime
depending upon the social significance attached to the violence. Hitting on a football
field may be sanctioned while hitting on a street corner may not. In both cases, the
propensity for violence may be identical.

Yet some believe genetics may reveal keys to understanding criminal violence.
Charles Babington, U-Md. Cancels Conference On Genetic Link to Crime; NIH Pulled
Funds Over Proposed Content, Wash. Post, Sept. 5, 1992, at Al. A Bush health
official suggested that since inner-city violence has not been deterred by harsh laws,
studying monkeys, and genetic research can provide keys to control. See Lynne Duke,
Controversy Flares Over Crime, Heredity; NIH Suspends Funding for Conference,
Wash. Post, Aug. 19, 1992, at A4.

11 Although rarely a part of social discourse, being "white" is as much a
constructed social reality as being "black." Cf., T. Alexander Alynikoff, A Case for
Race Consciousness, 91 Colum. L. Rev. 1060 (1991).

149 See, e.g., David F. Greenberg, The Construction Of Homosexuality (1988).
My point is not that everyone is bisexual, but rather that sexual orientation generally
is treated as if it were only bipolar, when for many it is more nuanced and complex.
See, e.g., Allison Abner, Bisexuality: Out of the Closet, 23 Essence 61 (1992).
Interestingly, on issues of class, where the goal is to minimize intergroup tension, the
dominant formulation resists rich/poor dichotomies and encourages people to see
themselves in the blended "middle-class."

1S0 If there is one thing those of us who are African American know, it is that far
more things in life come in shades of grey than in black and white. Yet a fierce
insistence on seeing the world through a bipolar black and white lens is a persistent
legacy of Anglo slavery. Property rules required this clarity. A child could not be half
the property of its master/parent. Patricia J. Williams, On the Object of Being
Property, 14 Signs 5, 7--11 (1988). Race in contemporary America is more complex.

Like Martha Fineman and others, I do not find essentialist discussions very
helpful. They are fraught with epistemological questions that have little to do with the
ongoing social conditions with which the law is concerned and on which the law must
in practice act. Whether essential or nurtured, categories of historical oppression
should be approached as if they are still generally useful. See supra note 146.

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by protest joyriding and its rap counterparts. I do not suggest these voices
be added to the chorus of the oppressed to create a new entrant in the race
to the bottom. To the contrary, I suggest that the category of young Black
male be focused upon because it is still a powerful and unique social
determinant. The law of race and gender, in theory and practice, must
recognize their oppression. Discourse must recognize their words,
experienced realities, and responses as central to conversations with them.
Current discourse is incomplete in not recognizing that the presumptive
privilege of being a male, does not operate for males who are young,
Black, and poor. Focus allows these misunderstood voices to be included
in the development of a less hierarchical social order respectful of all
human dignity and self-determination.

Neither is building this essay around some young Black male voices
and actions an endorsement of what is said and done. Some of the
consciousness expressed in rap and acted out by some young Black males
reflects and compounds the oppression of themselves and others.'52 Yet
this expression must not prevent listening to the cries of another oppressed
people. Assuring recognition time for each group's accomplishments and
success in working through its unique problems should not mean division
of the world into "us" versus "them." This impedes seeing common
interests where they exist, and formulating joint social projects where
possible. Thus, it is necessary to focus on seeing both the uniqueness and
the commonalities of categories of oppression. Like some feminist and
critical race theorists,'53 I am suggesting that those with outsider
perspectives on the law use their multiple consciousness to critique the
reflexive use of control mechanisms with respect to antisocial behavior by
other oppressed groups, like young Black males. Lessons learned about
how America systemically ignores the voices and legitimate complaints of
outsiders, substituting regimes of control instead of discourse, should be
applied to discern similar treatment of other outsider. groups."'

152 For example, in "Everything's Gonna Be Alright" there are condemnable
expressions of sexism and homophobia. Additionally, the willingness to turn guns on
other Black males in both rap and life reflects a deadly lack of positive self-
consciousness.

153 Lani Guinier, Of Gentlemen and Role Models, 6 Berkeley Women's L.J. 93,
96--97 (1991) (discussing multiple consciousness as enhancing the ability to listen,
empathize, hear the passion, anger, and fear of clients who are alienated and
intimidated).

15 This partially bridges the "interest convergence" dilemma discussed by Derrick
Bell. He observed that Whites participating with Blacks in efforts to change social
conditions, have acted out of self-interest as well as beneficent motives. Derrick Bell,
Brown v. Board of Education and the Interest-Convergence Dilemma, 93 Harv. L. Rev.
518 (1980).

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The current approach to the problem of joyriding by Black young men
employs a "command-and-control" style of managing associated with White
males.' 55 Outsider perspectives can help critique this approach,
illuminating its limitations and opening the way to alternate possibilities.
They can provide an understanding of legal methods and suggest
alternatives. 5 6 Multiple consciousness can be used as I have done in Parts
I and II to discern assumptions in current approaches to the problems of
Black youth joyriding and open us to new responses.

Oppressed groups ought to be wary of joining coalitions which enhance
the dominant groups' control over any other oppressed group. Majoritarian
initiatives to control any historically oppressed groups, whether through
criminal or civil law, should be opposed by substituting a nurturing
perspective. The adoption of an oppositional stance should be done both
because it is the right thing to do in terms of a general theory of respect for
human dignity and self-determination and because it is in the long-term self-
interest of other dominated groups. Young Black males are potential allies.

A personal experience helped me understand how gender, race, age,
and class stereotypes are animating society's responses and the need for me
to listen more attentively to the voices of young Black males. In
September, 1992, I was stopped by a White Nassau County Police Officer
at night while driving my Acura Legend. I was not driving fast and was
not violating any law. I am certain about this because I saw the police car
hiding along the roadside before he started following me and was sure not
to give him any excuse to stop me. When he pulled me over, I asked him
"What seems to be the problem, Officer?," in my best Harvard-trained
diction. He said: "Just give me your registration and I will tell you later."
When he returned to the car shortly thereafter he politely apologized, saying
that "I thought you were younger when I stopped you." He explained that
there had been six carjackings of Legends within recent weeks. '" I did
not engage him in further conversation; but I thought to myself, what if my
teenage son had been driving our car and not I, would my son's justifiable
rage at having been stopped have led to a tragedy?

"I See Judy Rosener, Ways Women Lead, 90 Harv. Bus. Rev. 119 Nov./Dec.

1990.
"56 Katharine T. Bartlett, Feminist Legal Methods, 103 Harv. L. Rev. 829 (1990)

(proffering tentative legal methods used by feminists); Martha A. Fineman, Challenging
Law, Establishing Differences: The Future of Feminist Legal Scholarship, 42 Fla. L.
Rev. 25 (1990). This is not a claim about essential differences between men and
women, Black and White. Cf. Naomi R. Cahn, The Integration of Progressive Thought
and Action: Styles of Lawyering, 43 Hastings L.J. 1039 (1992).

157 See Harney, supra note 60.

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Ensconced in my world, I did not fully appreciate the extent to which
I had been seduced into not hearing the voices of young Black males. It
took the (police) force of dominant culture imposed on me because of my
race and gender to open my ears. I escaped the full detentive power of the
state because of my age and perhaps class or education as reflected through
language. I still did not know what the everyday lives of young Black
males are like; but I knew I (we) had to begin listening to them (and
others). I saw the dominant social constructions imposed on all of us and
that I had an interest in listening to young, Black men and women, poor
women, gays and lesbians, Jews and Muslims, etc. I saw that we had to
resist and oppose all of the ways law is used to coerce and limit people
because of group status.

Young Black males and joyriding in Newark present a challenge.
What should be our responses?

B. Nurturing Young Black Males Like Other Children

Some nurturing responses to the problems of young Black males
require coalitions of progressive people to formulate and implement
them. "'58 Others will require special efforts primarily by Black people.
Even in these efforts, coalitions can support the loving and nurturing of
Black children, including the errant protestors of Newark, as supporting
friends.

Current discourse suggests that control models and nurturing models
are dichotomous. 5 9 This dichotomy is false. There is a need for both
some control and a great deal of nurturing to compensate for social
deprivation and the legacies of oppression. Disinvesting in Black youth has
created quite a social deficit.

The materialistic objectification of manhood discussed in Part I.C
should be counteracted by efforts to prevent and deter antisocial behavior
without criminal sanctions. More social scientific study of the precise

158 I mean to use a style of problem solving associated with feminist traditions of
nurturing, an ethic of caring, and connection to people as a method of constructing
alternative approaches to the problem of young Black male joyriding. See Cahn, supra
note 156, at 1054--1068.

119 In response to the car theft situation, then Gov. Florio stated "first and foremost
we need a strong law enforcement response. Sullivan, supra note 74. Often people of
color join with centrist control coalitions. For the comments of Black Newark Mayor
Sharpe James, see Sullivan, supra note 74. Although he, like many Black politicians,
acknowledges the need for recreation and services for poor urban youngsters, in fact,
he cannot deliver the needed social services. Virtually all that Black politicians can
actually do is join dominant coalitions for more control. If other oppressed people
coalesced, this balance of power could be altered and options for nurturing created.

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causes of this antisocial adolescent group conduct and non-coercive
intervention strategies would be helpful. Special attention should be given
to the unique aspects of poor-urban-young-Black-male group dynamics. In
the interim, I suggest two simultaneous guiding principles.'"

First, resource investments in young Blacks should be the same as the
investments in young Whites. The society must invest in them what their
parents cannot: time and resources, just as if they were the children of
White and privileged parents. Second, we must join together in the hope
of changing values away from materialism and toward different values of
Black manhood, perhaps drawing on the community service values of some
Black ministers.'

61

As Naughty by Nature's lyrics suggest, talk alone is not a solution.
Solutions require resources of time and money. Nurturing models are
attractive when we consider strategies for our own children---but when the
problem is related to poor, young Black males, other people's children,
most of us are all too willing to abandon human development models and
fall back on control models. Black males are treated as if they need a life
of controls whereas other children are treated as if they need to be nurtured.
If some parents cannot afford to create a nurturing environment, then it is
incumbent upon the rest of us to fund and create such environments.
Rather than offer an abstract exposition on this point, I shall make specific
proposals related to some of the problems of stolen cars and young Black
males. These proposals may seem simplistic, but when considered in
tandem with the ideas in the next part on ways to change values, these
proposals provide a balance between the reality that young Black males live
in a society that places emphasis on males and cars, and the hope that some
of these values can be changed.

Middle-class White adolescents in America expect to learn how to
drive a car and then have access to a car at least some of the time. Getting
one's learner permit, driver license, and the family car are all part of the
normal rite of passage for America's young. But what happens if in your
neighborhood this norm does not apply? Where there is no drivers'
education at your school and your mother does not have a car, you as an
adolescent still want to drive like "everybody" else.

1" While all of my proposals should be available to both men and women, I
recognize that the problem being addressed and the solutions proposed are designed to
address a predominately poor Black male phenomenon. The problems of other
oppressed peoples, like Black females, need to be addressed separately. The proposal
in Part III.C is less specific and could be adapted for evolving new values and programs
across a wide range of groups and subject matters.

16 Cf. bell hooks, Black Looks, 87--113 (1992).

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This is the situation for many youngsters in our inner cities.
"Normalcy" is not available, and the incentives for waiting until they can
lawfully earn what their parents and neighbors do not have are not in place.
Realistically, they do not know many people who have lawfully earned their
way into the American dream, 62 and the prospects for their succeeding
down this path are dim if there at all.

To remedy this narrow problem, Black youngsters should be provided
what their parents cannot give them: opportunities to learn how to drive
and perhaps have recreational access to automobiles. The merits of the
educational component is obvious. There is no better forum than the
schoolhouse to teach youngsters the do's and don't's of responsible driving.
The dangers of automobiles could be taught and safe driving habits
inculcated. Such education should not be a luxury reserved for the affluent.

In addition, providing youngsters with opportunities to drive would
satisfy some of the adolescent curiosity reflected in joyriding. At the same
time it would teach many the dangers to themselves and others of
irresponsible driving. Recognizing that many youngsters leave school
early, these educational programs also should be available at public expense
through community-based centers in churches and elsewhere. 63

While these proposals would not solve the larger problems of social
inequities facing poor, young Blacks, they would ameliorate a problem
important to adolescents themselves. Practical objections based on costs
and logistics must take into account the current costs in terms of law
enforcement, wasted lives in expensive jails, and insurance. Ultimately, the
question is not the feasibility of the particulars, but whether for my own
son, a police officer and jail would be the only solutions I would devise in
response to his wanting to drive a car. Part of the problem is that most of
us do not see poor Blacks as our own children.

C. Campground of Renewal

The social critique must be inward as well as outward. There is a
need for a new self-consciousness for some young Black males, one that is
less materialistic and values people and community more. Naughty by

62 Except on television shows like NBC's "The Bill Cosby Show," the Black
middle-class has become invisible to many poor Blacks.

163 A more ambitious program might entail providing access to cars for community
service and some recreation. Once licensed, vehicles could be made available for
various purposes, including assisting the elderly in their marketing and helping women
take children to day care. Additionally, these vehicles could be made available with
slightly older peer counselors to attend purely social functions with other youngsters
from the center. Drivers would be designated and pledge not to become intoxicated.

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Nature, as well as Black people in Newark, speak of each other as
neighbors. There is missing, however, a sense of what "neighbor" should
mean in a democracy" and in a Black community. To some extent this
is due to enchantment with the mythology of the Black bandit, with its
focus on possessions---including women, cars, clothing, and jewelry---which
serves White patriarchy. "[Yet] there is nothing that requires militant black
male leaders to be selfish, stupid, shortsighted, or sexist."'1 65 A new
emphasis in Black male consciousness is needed to liberate young Black
males and the rest of us from the chains of American materialistic and
sexist manhood and the impulses of self-destructive oppositionality.

Starting with where people are, we should work from there in evolving
new consciousness. Today, the Black young male lawbreakers, including
the protest joyriders discussed in this article, "wind up with little control
over their images and less control than they imagine over their lives and
their own world views.""6 Their rebellion is limited because it is not
based on a thorough systemic critique of their deprivation and recognition
of strengths. Blacks have a special role to play in helping rebellious youth
develop a constructive social critique and positive self-esteem. The first
step in this process would be treating all Black children as if they belonged
to all of US.

167  Society, and in particular those emotionally tied to the
Black community, must gather around Black children to strengthen and
develop their positive attributes.

In doing this there is a need for other images of maleness, Blackness,
and Black maleness. 6  A useful place to start the process is building on
traditional attributes ascribed to Black men that are more positive. 169

There are within the Black community figures even today that conform to
this model: one example is the Black minister. The Black minister remains
one of the few Black role models on the scene not so consumed by
American materialism and self-interest to be disqualified as an agent to
change the values of the young. Notions of a new Black masculinity might

'6 Benjamin R. Barber, Strong Democracy 223 passim (1984) (suggesting that we
should use notions of neighbor, rather than the formality of citizen, to fashion a more
satisfactory relationship both among individuals and between individuals and the
government).

16 Regina Austin, The Black Community, Its Lawbreakers, and a Politics of
Identification, 65 S. Cal. L. Rev. 1769, 1785, 1791 (1992).

166 Id. at 1787.
67 This would not mean that everyone has to play social worker. V43rking with

adolescents is not easy. But at the very least everyone has to contribute something.
"6 Cf. Mitchell Duneier, Slim's Table: Race, Respectability, and Masculinity

(University of California Press 1992).
169 This is a somewhat analogous process to that suggested by women. See, e.g.,

Joan C. Williams, Deconstructing Gender, 87 Mich. L. Rev. 797 (1989).

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build upon their positive attributes, as well as other role models---including
Black women, White women, Jews, Moslems, gays and lesbians---70 in
order to transform protest, anguish, and rebellion for the benefit of Black
communities and society in general.'

These strengths of Black males (and females) might be taught in what
historian Vincent Harding calls "campgrounds of renewal."" In special
places---within or, if possible, away from ghettoes---young Black men and
women, with their families and other elders from their communities, should
be brought together. 73

At these gatherings, which would be voluntary for most, but perhaps
alternatives to jail for lawbreakers, focus might be provided by using films.
These might include: Eyes on the Prize, with its focus on the causes and
self-destructive aspects of the riots of the 1960's and Dr. King's developing
strategy to effect an economic redistribution of wealth, and X: The Life of
Malcolm X, with its focus on the evolution of one Black man's political
consciousness and sense of social responsibility. The participants would
view the films and from there share their perspectives on history and
contemporary events.

By examining and interacting with earlier experiences through role
playing and personal storytelling, these groups could begin the process of
developing a new set of personal life options and visions for themselves and
their communities. These conversations and interactions across generational
and class lines would provide fora for respectful inclusion of different
experiences and voices. From this process, new beginnings, self-

7o Dr. King's vision was heavily modelled on that of Ghandi. But selection should
not be limited to men or just Blacks. Women like Marion Wright Edelman,
Congresswomen like Lydia Velasquez and Maxine Waters, single Black mothers like
Senator Carol Mosely Braun, and men like New York City Human Rights
Commissioner Dennis DeLeon are terrific role models for all. This list of the variety
of people to be included is limited only by space and imagination. Similar, more
localized models should predominate.

"I For a discussion of these traditions, see, e.g., Gayraud S. Wilmore, Black
Religion and Black Radicalism (2d ed. 1984).

" Vincent Harding, Hope and History: Why We Must Share the Story of the
Movement, passim 190--200 (1990). New funding sources could be sought or facilities
like churches or centers used. An idea similar to Harding's has been suggested for
retreats between randomly selected citizens and presidential candidates. James S.
Fishkin, Democracy and Deliberation: New Directions for Democratic Reform (1991).

'I This idea could be expanded over time to include other groups. Jews and
Blacks could be brought together to share their experiences of oppression and work
toward understanding each other's issues and mutual empowerment. Even tough
situations like New York City's Crown Heights might benefit. See Andrew W.
Cooper, The Two Nations of Crown Heights, N.Y. Times, Jan. 6, 1993, at A21.

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Naughty By Nurture

definitions, and redemption could arise. 1
4 Rap could be one constitutive

voice. From dark musical voices America can learn.'75

Young Black men (and women) would be taught to invest in
relationships, community, and culture as the primary sources of a "rich"
life as opposed to gold chains and automobiles. Renewal could help to
change the values of the young (and old). This approach would assure
"recognition time" for young Black males and, as a model, be available for
other groups which need recognition time, including Black gays and
lesbians (Tongues Untied), sisters (Just Another Girl on the IRT), Blacks
and Jews, and so on. In these supportive settings, people could work
together to develop new concepts of Black manhood (or womanhood) and,
more generally, learn how to participate in communities of men and
women, black, white, brown, red, yellow, straight, gay and lesbian, able-
bodied and physically challenged, etc. In short, people would learn to be
members of less hierarchical communities.

IV. CONCLUSION

For he is a God of Justice,
who knows no favorites.
Though not unduly partial toward the weak,
yet he hears the cry of the oppressed.'76

'7' In this I share with Professor Austin in the politics of identification. That is,
adopting as an explicit goal the restoration of some (but not all) lawbreakers to good
standing in the community by treating them like a resource, providing them with
opportunities of redemption, and fighting for their entitlement to a fair share of the
riches of this society. Austin, supra note 165, at 1775. I made this same argument
with respect to a partially fictionalized young Dominican drug dealer in Drug
Decriminalization: A Chorus in Needs of Masterrap's Voice, 18 Hofstra L. Rev. 457
(1990).

175 As Langston Hughs, through his character Simple, put it in connection with
another Black musical expression: "That is where Bop comes from . . . out of them
dark days we have seen. That is why BeBop is so mad, wild, frantic, crazy. And not
to be dug unless you have seen dark days, too. That's why folks who ain't suffered
much cannot play Bop, and do not understand it. They think ... it's just crazy crazy.
They do not know it is also MAD crazy, SAD crazy, FRANTIC WILD CRAZY---beat
right out of some bloody black head! That's what Bop is. These young kids who play
it best, they know." Quoted in Harding, supra note 172, at 141.

176 Sirach 35:12. I conclude with this quote for two reasons. First, its vision
commends itself to our national belief in equality for all. Second, equality may be only
a religious hope interposed against a reality of oppressive structures so ingrained that
they are effectively inexorable fates. See, e.g., Naughty by Nature, supra note 1; cf.
Bell, supra note 7 (suggesting that contemporary race oppressions are insoluble, in the

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From some stolen cars can be heard the voices of protest. Some
young Black males are angry. Through rap and protest joyriding, they are
confronting society with their indignation and frustration with America's
broken promises. Their views are in conflict with those of the media and
with those of the public mainstream lawmakers. To connect these various
and seemingly irreconcilable perspectives, we must shift the basis of social
coalitions away from an overreliance on the criminal law as a tool of social
control and towards new perspectives on social problems. This will require
avoiding divisive hierarchies among historically oppressed groups as new
coalitions are formed, while providing spaces for focus on particular kinds
of oppression. Out of this, hopefully, should come more nurturing
solutions to the problems and less reliance on legal control regimes. In
addition, a process could be begun to evolve different, less materialistic,
nonsexist, nonracist, or otherwise hierarchical values through "campgrounds
of renewal."

Creating a society that does not revolve around dominating and
controlling other people will require allowing uniqueness while
understanding our commonality. The maximization of all human dignity
must be emphasized. Whether the paths I have outlined will result in a
better world is uncertain. The one thing about which I have little doubt is
that the relentless pursuit of control of young Black males through
increasing reliance on criminal laws and coercive sanctions will not yield
positive answers to the question: Is Everything Gonna Be Alright?

sense that America does not have the will to understand and do anything substantial
about them). In an exercise of faith reflected in the quote above, I pray they are
wrong.

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APPENDIX

Everything's Gonna to Be Alright by Naughty by Nature:

Introduction:

Dr. Blair (male):

Nurse Johnson (female):
Dr. Blair:

Nurse Johnson:
Dr. Blair:
Nurse Johnson:
Dr. Blair:

Nurse Blair:
Dr. Blair:

Noises of Babies crying in
background
Nurse Johnson, is the mother still in
the recovery room?
Yes, Dr. Blair.
O.K., I'll go to the waiting room and
inform the father it's a boy.
I'm afraid there is no father, sir.
Another ghetto bastard---uh---.
I'm afraid so.
Well, put him with the rest of the
born losers.
Alright, doctor, a shame isn't it?
It's not a shame, [it's] a problem.

(Music begins, nursery noises fade)

Narrator:

Background Chorus:

This is a story about the Drifter, who
waited for the worse but the best
lived cross town ....

Everything's Gonna Be Alright,
Alright---Everything's Gonna Be
Alright, Alright ....

Some get a little and some get none
And some leave the job half done.
I was one who never had and [was]
always mad.
Never knew my dad ... motherfuck
the fag.
Well anyway I did pick-ups [delivery
boy], lifts [shoplifting] and stickups---
cause
I couldn't get a job---
Nappy hair was not allowed.
My mother couldn't afford us all.
She had to throw me out.
I walked the strip
I had to eat
I throw on braids, I wasn't paid
enough.

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I kept them long; I couldn't afford a
hair cut.
I got laughed at, I got chumped, I got
dissed [spoken to or treated in a
disrespectful manner],
I got upset, I got a tech [a Tech-9
pistol] and a banana clip [a bullet
cartridge clip curved in shape like a
banana].
If not for bad luck I wouldn't have
none.
Why did I have to live the life of
such a bad one?

Background Chorus: Everything's Gonna Be Alright---
Everything's Gonna Be Alright. ...

N: A ghetto bastard,
born next to the projects,
living in the slums with bums and
gotta watch it.
Do I have to be like this?
Momma said I'm priceless.
Why am I worthless?
Starving is just what being nice gets.
Sometimes I wish I could afford a
pistol...
I would have ended things awhile
ago.
I didn't have jack [shit] but a black
hat and nap sack, four scars, stolen
cars and a black jack.
Drop that.
And now you want me to rap and say
something positive.
Well positive ain't where I live---
I live right around the corner from
west hell, two blocks from south shit
and once in a jail cell.
The sun never shines on my side of
the street!
I walked alone.
My state of mind was home sweet
home.
I couldn't keep a girlie.
They wanted kids with cars of chrome.
Some life---if you didn't wear gold
your life was old ...
and you had no juice.

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Hell no, I say there's gotta be a better
way. . . . How will I do? How will
I make it?
I won't that's how!

Background Chorus: Everything's Gonna Be Alright---
Everything's Gonna Be Alright...

N: I'm better off dead, that's what my
neighbor said.
Some say I'm nothing but a dog now.
I answer that with a fuck you and a
bow-wow.
I been through more shit in the last
week.
I was born dead wrong. That's been
my life.
Oh---you don't know the song.
So don't say jack [shit].
Please don't say you understand.
All that man to man talk can walk---
damn.
If you ain't lived it, you can't feel it.
And all that talk about [it] won't help
it out. Will it?
But I'm the one who has been
labelled as an outcast.
They teach in school that I'm the
misfit.
But I'll slap 'em backwards.
That's what you get for fucking with
a ghetto bastard.
If you ain't never been to the ghetto,
don't ever come to the ghetto, cause
you wouldn't understand the ghetto.
Stay the fuck out of the ghetto.
Why me?
Why me?

Background Chorus:

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Alright alright ...