Fall 1999 Human Rights Magazine

By Jordan C. Budd

After an absence of several decades, juvenile curfews have reappeared in communities across the United States. Researchers estimate that nearly 75 percent of major American cities now enforce some form of a nocturnal curfew.1 As curfews become more widespread, the debate over their efficacy and constitutionality has intensified. That debate frames a number of fundamental questions regarding the relationship between individual liberty and community safety, and the degree to which we are willing to infringe the rights of a discrete and vulnerable group to advance our collective sense of security.

Questionable Efficacy

The premise of juvenile curfews—that serious criminal activity among youths will decline if they are barred from leaving their homes—has a simple and intuitive appeal. Yet, the most severe sanction found anywhere for a curfew violation is a criminal misdemeanor charge—hardly a deterrent for youths willing to risk the far more onerous penalties that attach to the type of crimes curfews seek to prevent. Quite simply, if a young person is prepared to commit a burglary, robbery, battery, or murder, he or she is unlikely to be deterred by the prospect of a curfew citation. Conversely, law-abiding youths will likely modify their conduct to conform to the law, even if it requires that they forego socially productive activities.2 By their design, curfews will have the greatest impact on the conduct of those youth with whom we are least concerned.

No empirical research has yet demonstrated that curfews have any appreciable effect on rates of juvenile crime. After reviewing available literature and data concerning the efficacy of juvenile curfews in major American cities, two scholars concluded in 1995 that "there is so little existing research on the effects of curfews that policymakers have next to nothing to guide them concerning the benefits and costs of a curfew."3 What limited evidence does exist provides little support for curfew enforcement. A 1998 study of juvenile curfews in California, which compared the rate of juvenile crime in jurisdictions with curfews against the rate of crime elsewhere, concluded that "curfew enforcement generally had no discernible effect on youth crime."4

In the absence of empirical data, cities often cite a general decline in crime rates over the period during which a curfew is enforced as proof that it works, without any attempt to control for demographic, economic, or social influences. Indeed, in correlating declining crime with curfew enforcement, curfew proponents often fail to make the most basic distinction between crime occurring during curfew hours and crime occurring at other times of the day. The statistical arguments advanced by the City of San Diego in support of its juvenile curfew are illustrative. Citing an overall drop in arrests for juvenile crime during the first year of San Diego’s curfew enforcement program (1995), the city declared that its curfew was a success. The data actually demonstrated that the violent crime rate during curfew hours remained essentially unchanged (233 arrests in 1994; 222 arrests in 1995), while the crime rate during noncurfew hours plummeted (1,501 arrests in 1994; 1,224 arrests in 1995).5 San Diego thus credited its juvenile curfew with a decline in crime that occurred almost entirely during the period when the curfew was not in effect.

Moreover, less than 15 percent of all arrests for violent juvenile crime in San Diego occur during curfew hours, consistent with national data indicating that juvenile crime peaks at 3:00 p.m. and again at 6:00 p.m.—well before curfews take effect.6 Therefore, even if curfews were effective, they would reach only a small percentage of the violent juvenile crime in the community. Perhaps most significantly, juvenile crime in its entirety accounts for less than 10 percent of all violent crime committed in the United States. Nocturnal juvenile curfews thus target a relatively small portion of the criminal landscape—likely less than 2 percent of all violent crime.

Demonizing Our Youth

The lack of data establishing the efficacy of curfews has not diminished their political appeal. Juvenile curfews speak to our collective fear of the dangers lurking in the night, and target an easily caricatured culprit class. A 1994 survey of 300 adult residents in Cincinnati revealed that 92 percent supported the city’s juvenile curfew, 72 percent agreed that the curfew made them feel safer, and 87 percent believed that the curfew helped control delinquency.7 The image of dissolute youth roaming the streets in search of victims is now a fixture of our political rhetoric, and curfews offer a satisfying and uncomplicated solution.

Demonizing our youth—the vast majority of whom obey the law, work hard, and make positive contributions to their families and communities—is not without cost, as the young people who brought the legal challenge to San Diego’s juvenile curfew demonstrate. One 17-year-old plaintiff volunteered each week to work in the kitchen of a downtown homeless shelter. Because meals were served after dark, when the homeless population returned from the streets, she regularly returned home after 10:00 p.m. and, as a result, was forced to quit when the curfew was enacted. Another plaintiff was an aspiring actor who traveled by train to Los Angeles to audition for parts in theatrical productions. Because he typically returned to San Diego from auditions after 10:00 p.m., he was in violation of the law. Yet another plaintiff was required to cancel the study sessions she held in the evenings with other students at a local coffeehouse to prepare for Advanced Placement exams. Each of these youths acted with the permission and encouragement of their parents but nonetheless invited a criminal citation for their activities—as did their complicit parents.

Constitutional Implications

Even if the efficacy of curfews were established, and their popularity justified as something more than political scapegoating, the most troubling questions regarding curfew enforcement would remain. If we empower law enforcement to empty the streets of all persons—adults as well as juveniles—between 10:00 p.m. and sunrise, perhaps crime will occur less frequently, at least during that time period. The objection, of course, is that such an enforcement tactic vests police with inordinate, unchecked power, which offends our most basic sense of liberty and autonomy, and is simply too high a price to pay in a free society for an incremental decrease in crime rates.

Opponents of juvenile curfews pose the same objection. In implementing curfews, cities entrust their police with vast discretion to enforce a law that specifies nothing more than youthful appearance as probable cause for detention. Anyone who looks remotely close to 18 years of age is fair game for an investigatory stop and interrogation. Because police lack the resources and often the motivation to stop every person on the street who might pass for a teenager, officers necessarily will select curfew suspects on the basis of additional considerations, which may include race, class, and other biases—giving them carte blanche to engage in arbitrary and discriminatory enforcement practices.

Juvenile curfews are constitutionally suspect in a more fundamental respect as well. Curfews aim to prevent criminal activity before it occurs through the preemptive detention of all potential offenders, along with every other law-abiding young person in the jurisdiction. Such a blunt and overreaching crime-fighting technique would plainly be unenforceable against adults: "it is not permissible to enact a law which, in effect, spreads an all-inclusive net for the feet of everybody upon the chance that, while the innocent will surely be entangled in its meshes, some wrongdoers may also be caught."8 The question then becomes whether the rights of minors are sufficiently different to warrant such sweeping and arbitrary regulation. The U.S. Supreme Court has not ruled on the issue, and the lower courts have reached widely divergent conclusions.

Because juvenile curfews burden a variety of fundamental rights (e.g., the right to free speech and association, the right to free movement, the right to travel, and the right to free exercise of religion), the analysis of curfew laws is a complex exercise involving the application of a number of different constitutional standards and doctrines. At the center of the judicial debate, however, is one common issue: whether the constitutional rights of minors are sufficiently "fundamental" to warrant strict scrutiny review for purposes of equal protection analysis. Strict scrutiny requires that any measure infringing the fundamental rights of an adult class be narrowly tailored to promote a compelling governmental interest.9 Some courts have held that this protective standard applies to the rights of minors as well—and, not surprisingly, have struck down curfews as a result.

In considering a challenge to San Diego’s juvenile curfew, the Ninth Circuit ruled that "rights are no less ‘fundamental’ for minors than adults" and thus the curfew was subject to strict scrutiny review.10 While acknowledging that "minors’ rights are not coextensive with the rights of adults because the state has a greater range of [compelling] interests that justify the infringement of minors’ rights"—thus permitting driving restrictions, compulsory education laws, prohibitions against alcohol consumption, and other targeted limitations on the autonomy of youths—the court concluded that San Diego’s curfew was not narrowly tailored to advance the city’s interests. Other courts have similarly employed strict scrutiny analysis to strike down curfews as overbroad restrictions on the fundamental rights of young people.11

Given the inherent breadth of any curfew law, which necessarily places every law-abiding youth under some form of home detention so that a relatively small number of serious juvenile offenders might remain inside as well, it is difficult to envision how such an enactment could be deemed "narrowly tailored" to advance the government’s interest in averting youth crime.12 Strict scrutiny review, therefore, presents a serious hurdle for curfew proponents. The Fourth and D.C. Circuits recently addressed this difficulty by adopting an entirely different analytic approach.13 Rejecting the proposition that the rights of juveniles are sufficiently fundamental to warrant strict scrutiny review, these courts have ruled that juveniles are entitled only to intermediate scrutiny of laws that infringe their "qualified rights." Intermediate scrutiny requires only that a law be substantially related to an important government interest. In both cases, the challenged curfews were upheld under the more lenient standard as "substantially" related to the government’s interest in controlling juvenile crime.

The application of intermediate scrutiny rescues juvenile curfews from their inherent constitutional infirmities by relieving government of the obligation to narrowly craft laws that impinge on the fundamental rights of minors. By formally excluding minors from the full reach of the Constitution, the application of intermediate scrutiny permits the enactment of sweeping regulations that punish innocent and law-abiding youth for the sins of a few among them. As Judge Tatel of the Fourth Circuit wrote in dissent,[the majority’s analysis] relegates kids to second-class citizenship . . . . As long as the majority’s standard is the law, a city council can pass a juvenile curfew as a routine measure because the justification is so easy to articulate. This should not stand under the Constitution. Children make up a quarter of our population, and their rights must not be ignored. A city council cannot order such a large segment of the community to stay at home for thirty-three hours of every week unless its curfew satisfies strict scrutiny.14

If embraced in other contexts, this precedent could alter substantially the nature of juveniles’ constitutional protections and significantly expand the government’s ability to infringe and potentially abuse the interests of young people. To do such damage to the fundamental rights of youths in the service of a public policy of such poor design and doubtful efficacy is especially ironic.

Conclusion

There is little evidence that curfews have any appreciable effect on juvenile crime rates. They likely have the greatest impact on the activities of those youths who are least likely to commit crimes, and bar them from engaging in a variety of socially productive activities. By their design, curfews vest law enforcement with immense and unreviewable power to engage in arbitrary enforcement practices, and punish all law-abiding youth for the transgressions of a few among them.

To secure constitutional sanction for this sweeping law enforcement practice, courts have excluded minors from the full reach of the Constitution and have held that the infringement of their rights is subject to less demanding scrutiny than the impairment of the rights of adults. We pay a very high price for the illusory sense of safety that juvenile curfews provide.

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Jordan C. Budd is Managing Attorney of the ACLU Foundation of San Diego and Imperial Counties in California.

Endnotes

1. William Ruefle and Kenneth Mike Reynolds, Keep Them at Home: Juvenile Curfew Ordinances in 200 American Cities, 15 Am. J. Police 1, 63-84 (1996).

2. As one federal judge noted, "[v]irtually everything that the [curfew] seeks to thwart—violence, trade in illicit narcotics—is already illegal, and carries sanctions far more painful than a night of detention. Logic thus suggests that the only juveniles for whom the [curfew] will likely have meaning will be those already inclined to obey the law." Waters v. Barry, 711 F. Supp. 1125, 1139 (D.D.C. 1989).

3. William Ruefle and Kenneth Mike Reynolds, Curfews and Delinquency in Major American Cities, 41 Crime & Delinq. No. 3, 347, 361 (1995); see also Note, Assessing the Scope of Minors’ Fundamental Rights: Juvenile Curfews and the Constitution, 97 Harv. L. Rev. 1163, 1177 n.69 (1984) ("Because curfews are difficult to enforce and because most juvenile crime occurs before the hours spanned by the typical curfew, there is considerable doubt that juvenile curfews are actually effective in reducing juvenile crime"); Katherine Hunt Federle, Children, Curfews, and the Constitution, 73 Wash. U.L.Q. 1315, 1329 (1995) ("While many ordinances purport to reduce criminal activity and the victimization of children, curfews seemingly have little impact on delinquency and victimization rates.")

4. Dan Macallair and Mike A. Males, An Analysis of Curfew Enforcement and Juvenile Crime in California, 1 W. Criminology Rev. 2 (1999).

5. San Diego Police Department Quarterly Crime Briefing, August 16, 1995.

6. Nunez v. City of San Diego, 114 F.3d 935 (9th Cir. 1997).

7. Ruefle and Reynolds, Curfews and Delinquency in Major American Cities, supra note 3.

8. Sawyer v. Sandstrom, 615 F.2d 311, 318 (5th Cir. 1980); Papachristou v. City of Jacksonville, 405 U.S. 156, 171 (1972) ("The implicit presumption in these generalized vagrancy standards—that crime is being nipped in the bud—is too extravagent to deserve extended treatment.")

9. See, e.g., Shapiro v. Thompson, 394 U.S. 618, 634 (1969).

10. Nunez v. City of San Diego, supra note 6.

11. See, e.g., Waters v. Barry, supra note 2; City of Maquoketa v. Russell, 484 N.W.2d 179 (Iowa 1992); Allen v. City of Bordertown, 524 A.2d 478 (N.J. Super. 1987).

12. A few courts have upheld curfews while purporting to apply strict scrutiny principles, although their analyses bear little resemblance to the exacting inquiry that typifies traditional strict scrutiny review. See, e.g., Qutb v. Strauss, 11 F.3d 488 (5th Cir. 1993), cert. denied, 511 U.S. 1127 (1994).

13. See Hutchins v. District of Columbia, ____ F.3d _____, 1999 WL 397429 (D.C. Cir. Jun. 18, 1999); Schleifer v. City of Charlottesville, 159 F.3d 843, 847 (4th Cir. 1998), cert. denied, 119 S. Ct. 1252 (1999).

14. Schleifer v. City of Charlottesville, supra note 13 (Tatel, J., dissenting).