This article offers a fresh analysis of and solution to problems modern American street gangs present. Common wisdom dictates that, since they commit crimes, gangs should be understood and combatted through criminal sanctions. Popular interventions, like gang injunctions, expand that punitive orientation into civil strategies. But, gang criminality is merely a manifestation of a broader property-based disease. Therefore, those strategies will be ineffective and inefficient, as evidenced by the continuing rise in gang membership across the United States.
The consensus in gang research is that gangs are not crime syndicates; they are capitalist social institutions creating and operating in alternative markets. Violence and criminality are secondary or tertiary facets of gangs, resulting from the inaccessibility of mainstream markets. Integrating these findings into a unique synthesis of disparate threads of property theory—from Charles A. Reich’s The New Property and Margaret Jane Radin’s Property and Personhood to Cheryl I. Harris’ Whiteness as Property—it is clear that gangs’ primary purpose is to pursue the forms of property central to human identity. That insight frees anti-gang strategies from the strictures imposed by criminal law, but it also complicates the equation by revealing social justice considerations not normally associated with gangs.
From that foundation, this article presents a novel idea: Gangs are recreating a traditional market-based property system, so the approach to the problems associated with them should be market-inspired. In the market, actors are paid to induce desired behavior. Therefore, local governments should compensate gang members for nonparticipation in legal (but undesirable) gang activity. The article tests this proposal using Guido Calabresi and A. Douglas Melamed’s framework for allocating and protecting entitlements advanced in Property Rules, Liability Rules, and Inalienability: One View of the Cathedral. That analysis shows that the so-called “paid injunction” is a more effective and efficient approach to curbing the non-criminal activities of gangs that simultaneously advances the social justice concerns revealed by the property law analysis.
