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Frank Rudy Cooper reminds us that, “We are born unable to protect ourselves, we become feeble with age, we must fear natural disasters, and our social institutions might work against us.”1  Vulnerability is the inescapable condition of all humankind that compels us to construct various means of mitigating that vulnerability through “resilience.” The creation and accumulation of property is one of the ways in which we buffer ourselves against our own fragile natures and the threatening forces of the world around us.

In her recent article, Professor Lua Kamál Yuille confronts vulnerability and property-centered modes of resilience in a compelling reframing of the modern street gang as a creator of “identity property.” (P. 467.)

We know that gangs fill institutional and societal gaps, replacing family, school, and work. Yuille, however, explores this gap-filling role through the lens of Martha Albertson Fineman’s “vulnerability theory.” She situates the gang’s creation and maintenance of its “identity property” firmly in the milieu of “resilience”—“the accumulation of sufficient resources to allow individuals to confront, adapt to, ameliorate, compensate for, or contain vulnerability.” (P. 475.)

Yuille ties together the strands of vulnerability theory with those of property theory, particularly Charles A. Reich’s “new property” and Margaret Jane Radin’s conception of personhood and property.

She also connects vulnerability theory with Eduardo Peñalver’s notion of “property as entrance” —a means of uniting individuals into communities. Yuille’s work, therefore, is the first to relate the vast scholarship on street gangs to both evolving vulnerability theory and established property theory.

Yuille’s article both begins and ends with the premise that “local governments should compensate gang members for refraining from certain, otherwise lawful, gang activity.” (P. 467.) Yuille challenges the notion of the gang and its members as purely pathological. Instead, she argues that gang membership and gang activity is the natural response to human vulnerability and to the state’s failure to respond to that vulnerability when it affects underserved populations, such as Blacks, Latinos, and poor people.

Gangs, then, are “social institutions creating and operating in alternative markets . . . [in an effort to] provide[] resilience to . . . universal vulnerability.” (P. 466.)

Human beings use social intuitions and the relationships that these institutions engender to create and accumulate resilience. Vulnerability theory posits that the “responsive state”— one that constantly monitors vulnerability and updates or supports institutions in response to levels of vulnerability–is the answer to mitigating human vulnerability through resilience.

In essence, “[t]he responsive state must alter institutional arrangements that create resilience and privilege, while perpetuating disadvantage.” (P. 476.) When the state fails to respond to vulnerability or acts to undermine resilience, individuals and communities will build their own means of producing resilience.

Yuille argues that gangs are one of these alternate resilience-producing institutions. Gangs, then become gap-fillers in building resilience in marginalized and disadvantaged communities. Gangs do this by generating capital for their members and their communities. Much of this capital is “identity property,” such as clothing, colors, signs, symbols, graffiti, tattoos and other physical markings, other intangible assets and “intellectual property” and, of course, claiming a kind of dominion over real property in the form of gang territory.

The “responsive state” is unresponsive to the needs of gang members and their communities. This lack of state responsiveness prompts gang members to create their own resiliency mechanisms–parallel mechanisms that mirror the mainstream. The recognition of this phenomenon allows one to eschew the traditional perception of a gang member as an “outlaw,” instead reconstituting him/her as a vulnerable subject.

Yuille contends that the parallel system created by gangs and their members can function as a bridge between that system and mainstream systems of capital and resilience building. In fact, she argues that one of the goals of the parallel system is eventual admittance into the mainstream system.

Once she has established a reframing of the gang and its members, Yuille turns her attention to gang injunctions and their resilience-destroying effects.

The gang injunction is a law enforcement technique that seeks to strip gangs and their members of the very things that Yuille has identified as “gang capital”—which is “capital having value in the normative spaces gangs create” (P. 479)—by categorizing the conduct of named gangs as a public nuisance.

Under such injunctions, conduct that is not criminal, but that can be associated with gangs, can be enjoined. This conduct includes, but is not limited to, appearing in public with a known gang member, possessing objects that can deface property (such as pens, markers and paint), and using language, signs and symbols that refer to gangs.

Gang injunctions destroy access to the mechanisms that gang members have created to build resilience. Worse, because having been the subject of an injunction appears on an individual’s background check, gang injunctions increase the individual gang member’s vulnerability by obstructing the person’s pathway to legitimate employment and access to services, such as public housing or social programs. As such, gang injunctions are a failure of state responsiveness.

Vulnerability theory, Yuille argues, calls for the state to rectify its failure by constructing alternative methods for gang members to build resilience.

The “compensated gang injunction” is one such alternative. Such compensation, Yuille argues, can work to build a bridge between the parallel resilience system of the gang and mainstream resilience systems. Payment could take the form of a “conditional cash transfer”—the conditions being participation in education programs, job training, or other services that build resilience in the mainstream.

This new approach recognizes the universal human vulnerability of street gang members, their efforts at creating resilience through a parallel property regime, and the need to build a bridge between that parallel regime and the mainstream. Thus, Yuille closes the loop of her argument by ending where she began: proposing “the paid injunction as the responsive state alternative to the standard approach” to gang activity. (P. 485.)

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  1. Frank Rudy Cooper, Always Already Suspect: Revising Vulnerability Theory, 93 N.C. L. Rev. 1339, 1343 (2015).
Cite as: Jamila Jefferson – Jones, Should Government Compensate Street Gangs for the Loss of “Identity Property?”, JOTWELL (July 18, 2019) (reviewing Lua Kamál Yuille, Manufacturing Resilience on the Margins: Street Gangs, Property & Vulnerability Theory, 123 Pa. St. L. Rev. 463 (2019)),