Piecemeal Engineering a Reduction in Juvenile Crime and Victimization

American University

Washington, DC

December 1, 1999

Plato claimed that through change societies decay, and that democracy will decay into tyranny. Our experiences here in America are quite the opposite. A democracy, through change, can improve itself. If a societal problem such as juvenile crime and victimization gets visibility, then it can be dealt with. To best deal with it our democracy might make several iterations of new laws and enforcement of those laws. Each new enforcement attempt or new law is then likely to be tested in the courts. In this paper we will look at how change works in our democracy using the history of juvenile curfew legislation, enforcement, and court tests. We will look at how our system of governments adapts to a more and more reasonable limit of a group’s freedom in exchange for a specific improvement in society. This can be seen as an example of Popper’s piecemeal engineering.

Juveniles could easily be dismissed as not of age and not ready for the liberty that adults expect. They are under the control and are the responsibility of other citizens, their parents. At first thought, it doesn’t seem unreasonable to limit their freedom to protect them and others from their immature actions. In fact that is what parents are expected to do. On the other hand it is a pretty serious matter in U.S. to deprive any group of any liberty. Yet, since the 15 to 19 age group commits 20.1% of all crime, it is worthwhile considering a reduction of their liberties in exchange for a reduction in their crime (Korem, p28, 1994).

In 1993 Clinton took the issues of family values and crime from the Republicans. In doing so, he encouraged the use of curfews to reduce juvenile crime and victimization. This political rhetoric exacerbated a trend of juvenile curfew legislation and enforcement. A survey of 367 mayors attending the 1995 National Mayors Conference showed that 90% of them consider curfews to be a useful tool to curb juvenile crime and victimization (Donegan, p108, 1993).

Alleyn Evans, an honor roll student, became a criminal one ordinary Friday night, in December of 1998, and is now suing the city of San Diego. Her parents had set a curfew of 11:30 p.m. for her that night, when they knew where and with whom she would be. At 10:00 p.m., Alleyn was walking one block from a coffee house to her friend’s car when she was approached by police officers. They asked her age and she told them she was 16 years old. The officers then motioned for her to get into their squad car, in which they brought her to the station. There she was fingerprinted and photographed. She repeatedly asked to call her parents and let them know where she was, but the officers refused. Finally at 2:30 a.m. the police called her parents, letting her father know they were holding her at the station and for him to come get her. Alleyn said, “I really felt like a criminal. Just because I was a certain age, being outside was a crime,” (DiConsiglio, 1995).

San Diego, California has a strict juvenile curfew that was brought into effect in June 1995 to crack down on teen crime. Juveniles must be out of public areas from the hours of 10 p.m. and 6 a.m. There are penalties for parents of repeat offenders, which can include fines that range from $100 to mandatory attendance at a “parenting class”. The law allows some exceptions for teens returning home from work or supervised activities, but religious activities are not acceptable.

Alleyn Evans and her lawyers say the law violates their rights guaranteed in the First Amendment of free speech and assembly, and the free exercise of religion. The suit also includes charges that the law is taking over the parent’s authority. Alleyn’s story makes one feel personally the unfairness of a curfew. It is understandable that she and her parents are fighting to reinstate some of her basic freedoms.

The history of juvenile curfews stretches back to 1880, when the first juvenile curfew ordinance was enacted by the city of Omaha, Nebraska. (Hemmens and Bennett, 1999) Curfew laws became very popular in the 50’s in response to the tremendous increase in the teen-age population. By 1957, more than half of the cities in the United States with populations greater than 100,000 had curfew laws. These were justified in order to protect juveniles from crime, reduce juvenile crime, protect society and reinforce parental authority.

Typically, these curfews in the early days required all juveniles to be off the streets in the evening. Curfew laws varied greatly from municipality to municipality. Some had later hours for weekends and summers. Some were enforced simply by picking up the child and taking him home. Others required the offender to be jailed temporarily. What is most interesting about the laws and enforcement is how they have changed over the years and what has caused the change.

Popper, in his book The Open Society and Its Enemies, describes a means of social engineering that fits this process of change quite well. He defines piecemeal engineering, as practical problem solving without a clear end goal in mind. Here the problem to be solved is reducing juvenile crime and victimization. Curfews are one of the possible tools. The difficulty with curfews as a solution is the deprivation of liberty imposed on all juveniles in all circumstances. The interesting trend in curfew laws and enforcement is how they are evolving to suit clearer and narrower goals and with narrower limits on juvenile liberty. The process is one of enacting a law or enforcement of a law, sometimes with effectiveness statistics gathered, court challenges overturning the law or changing its enforcement and then a new law starting the cycle over again.

While curfews have been around for quite awhile, successful court challenges have only occurred recently. Until the 1960s juveniles were accepted as second-class citizens, subordinate to their parents. During the 1960s, the Supreme Court decided on a series of cases that extended specific due process rights to juveniles. (Hemmens and Bennett, 1999) Although, the court did hold that juveniles do not have the same First Amendment rights as adults, Ginsburg v. New York, (1968). In Bellotti v. Baird (1979), the Supreme Court decided that juveniles generally have the same constitutional rights, as do adults, but that the state may take into account in its laws the special vulnerability of children and their inability to make decisions in a mature and informed manner.

Juvenile curfews have been challenged primarily as violating the First Amendment freedoms of association and assembly, and the Fourteenth Amendment rights of equal protection and due process. There are historic standards of judicial review for challenges to these amendments. In constitutional law, the outcome of a case is determined by the standard of review and the facts of the case. Depending on an implication of a fundamental right or an affected suspect classification, the court uses strict scrutiny or rational basis review. “Fundamental rights are those freedoms that are essential to the concepts of ordered liberty, they are rights without which neither liberty nor justice would exist.” An example of this is provisions of the Bill of Rights, like the guarantee of due process and equal protection with the Fourteenth Amendment. Rights that are fundamental for adults, like the above mentioned, may not be for juveniles due to their age. The Supreme Court states only race and religion are suspect classification in all cases. Discrimination, based on suspect classification, is also considered unconstitutional, though age is not a suspect classification. “Under strict scrutiny review, the state may not enact legislation that abridges a fundamental right unless 1) it has a compelling interest that justifies restricting a fundamental right and 2) the legislation is narrowly tailored so that the fundamental right is not abridged any more than absolutely necessary to effectuate the state’s compelling interest.” Under rational basis review, “the court will not strike down legislation that appears to have some rational basis.” The government only needs to choose means that are not totally unrelated to the success of the legislature’s purpose. (Hemmens and Bennett, 1999)

Whether a right is fundamental is key to the outcome of most cases. With juvenile curfews one must decide if curfews impose on any fundamental rights. If so, courts must then apply strict scrutiny, which then would most likely find that curfews are unacceptable. If they do not impose on any fundamental rights, curfews will only be put through rational basis review and almost certainly be found valid. Many courts apply the rational basis to curfews because they believe the state has a paternal responsibility for children, because children have lesser rights than adults and because children can be treated differently than adults.

In 1898, the first juvenile curfew case was decided. In Ex parte McCarver, a Texas court decided the curfew ordinance to be unconstitutional. The curfew ordinance stated any person younger than the age of 21 was forbidden to be in public streets after 9 p.m. except if a parent accompanied them or seeking medical attention. The court declared the curfew as “an invasion of the personal liberty of the citizen.” (Hemmens and Bennett, 1999) The age limit was a key factor.

In 1912 a new curfew was brought to a Pennsylvania court. The curfew stated that any person younger than the age of 16 was prohibited from being on the streets after 9 p.m. The exceptions being if a parent or guardian accompanied them or if they had a note stating there was an emergency. This curfew, in Baker v. Borough of Steelton, was found constitutional using the rational basis review. It found that the city had a justifiable concern in protecting the children from possible harm. (Hemmens and Bennett, 1999)

The Iowa Supreme Court, in 1989’s Panora v. Simmons, upheld another juvenile curfew. In this ordinance juveniles under the age of 18 are prohibited from being in a public place between the hours of 10 p.m. and 5 a.m. The court decided that no fundamental rights were implicated by the ordinance. They then used a rational basis review to come to their conclusion stating the state had legitimately exercised it’s right in protecting society. (Hemmens and Bennett, 1999)

However, three years later, 1992, the Iowa Supreme court declared, in City of Maquoketa v. Russell, a curfew ordinance modeled on the Panora curfew unconstitutional. The city of Maquoketa had a similar curfew to Panora stating that juveniles were prohibited from being outside after 10 p.m. Exceptions to this included: being accompanied by a parent, going directly to or from work, or a “parentally approved supervised activity.” The opinion of the court was that the juvenile curfew ordinance did in fact implicate fundamental rights of juveniles, the First Amendment provisions of speech and association, and should be reviewed under strict scrutiny. Under strict scrutiny, it was determined that the ordinance was broader than necessary to meet the city’s specific interest. (Hemmens and Bennett, 1999)

While applying strict scrutiny review in the case of Qutb v. Strauss (1993), the Fifth Circuit of Appeals found for the first time a Dallas curfew to be constitutional in 1994. The curfew prohibited juveniles under the age of 17 from being in a public place from the hours of 11 p.m. and 6 a.m. on weeknights and 12 a.m. and 6 a.m. on weekends. The curfew also included many exceptions such as being accompanied by a parent or guardian, running an errand for a parent or guardian, running an emergency errand, traveling in a motor vehicle to or from work, work-related activities, or interstate travel. Juveniles could still participate in religious or civic organizations, attend school, or exercise First Amendment speech and association rights. Minors could also be on sidewalks in front of their home or a neighbors’ house. A key to Dallas’s success was the presentation of data showing the amount of juvenile crime and the time of day that a violent crime was likely to occur. (McDonald, 1999)

San Diego began enforcing a 1947 ordinance for the first time in 1993. Allowing for the exceptions of returning from work or a supervised activity, the city's ordinance states that juveniles must be out of public areas between the hours of 10 p.m. and 6 a.m. In 1997, in Nunez v. City of San Diego, the Ninth Circuit Court found San Diego’s juvenile curfew ordinance to be unconstitutional. It found the language to be too vague and that it violated juveniles’ first amendment rights. However, it also indicated that a less restricted ordinance would be acceptable. Within two weeks San Diego passed a new ordinance very similar to the successful Dallas ordinance. (McDonald, 1999)

In the year of 1989 the District Court of Washington, D.C. declared the first attempt of a curfew ordinance unconstitutional in Waters v. Barry. The District of Columbia’s ordinance attempt prohibited juveniles from being in the streets or public areas between the hours of 11 p.m. and 6 a.m. Exceptions to the curfew were: minors traveling with their parents in a car, coming home from a job, or an emergency errand. The court found that the curfew did affect fundamental rights and therefore applied strict scrutiny review. It decided that though the ordinance’s purpose was to protect juveniles from harm, a state interest, it was not narrowly enough written to achieve those goals. The court also stated that the constitutional rights of minors are just as in need of protection as those of adults. (Hemmens and Bennett, 1999)

A new curfew was then written. This curfew pertained to juveniles and had exceptions copied from the Dallas curfew after it was upheld in Qutb v. Strauss (1993). In 1996 this curfew was taken to the district court with Hutchins v. District of Columbia. Since there was not sufficient evidence to treat juveniles’ fundamental rights differently than adults, the ordinance was placed under strict scrutiny review. This time the District of Columbia did offer enough information to validate its claim of state interest in reducing juvenile crime and victimization. It also pointed to the exceptions stating that it was fine-tuned. However, it did not convince the court, for they again found the new curfew to be unconstitutional because the statistical evidence was not supportive to their particular case. (Hemmens and Bennett, 1999)

Washington DC modified its ordinance with an objective that was supported by adequate data and in the next case of Hutchins v. District of Columbia the judges recently found the curfew ordinance to be constitutional because it is related to achieving the important governmental interest of protecting the welfare of minors. The ordinance requires children aged 16 and younger to be home by 11 p.m. on weekdays and by 12 a.m. on weekends. Exceptions to this include work, church activities, and if they cite their First Amendment Rights. (The Economist, 1999)

As evidenced by the recent District of Columbia ruling, legislation and court action have taken curfews a long way from anybody under 21 off any street for any purpose after 9p.m. to 16 year olds and younger off specific streets after 11p.m. with many exceptions. The trend across the country has been to construct curfew ordinances that constantly narrow the loss of liberty (location, time of day, age group, exceptions, etc.), while maximizing the desired benefit for society, reduction of juvenile crime and victimization. Our system of checks and balances seems to constantly pit the forces for the desired societal benefit against those forces that protect individual liberties. Our system seems to work quite well, despite the predictions of Plato. Of course the real key is whether or not curfews are effective. If they are not, then even this less restrictive ordinance is too restrictive.

There are some remarkable results from some of the cities using curfews. A 1994 status report prepared for the city council of San Antonio, Texas showed that during curfew hours juvenile victimization decreased by 42% in 1993 and 32% in 1994 (Kinnear, 1996, p198). In New Orleans, 1995, a dawn to dusk curfew for youths under 17 drove down crime 27% during restricted hours (Donegan, 1993, p108). The Dallas Police Department’s internal analysis revealed that juvenile victimization during curfew hours decreased 17.7% in 1996. While these results seem to be a powerful reinforcement of the value of curfews, there are counter-claims that curfews do not have a significant effect. The claim is that juvenile crime and victimization in the 90’s has gone down as crime rates in general have gone down in the 90’s and that curfews displace crime to different locations and times. Nonetheless, U.S. mayors are enthusiastic supporters of curfews. A 1995 survey of the National Conference of Mayors showed that 75% of them had curfew ordinances, up 45% since 1990 and 90% of the mayors believe curfews are useful tools in reducing juvenile crime and victimization (Donegan, 1993, p109).

Other means of reducing juvenile crime and victimization are school and church outreach programs, more police patrols in high crime areas, more aggressive enforcement of truancy laws, mentor programs, harsher penalties for juvenile crimes, boot camps, adult treatment for violent crimes, training in conflict resolution and others. There is not good data on these programs to determine which one is better than the other. The advantage to curfew ordinances is that the implementation is very straightforward.

On balance, the statistics and the enthusiasm of the U.S. mayors for curfews suggest that curfews are a useful tool in reducing juvenile crime and victimization. Alleyn Evans would probably tell us that the trade off of the deprivation of her liberty for the overall reduction in juvenile crime would be too much for her. She might be right, because in that circumstance she wasn’t likely to be either a possible juvenile criminal or victim. The good news for Alleyn is this process of piecemeal engineering a solution to the problem of juvenile crime and victimization, is a continuous process of refining the solution. The history of legislation and court action, illustrated above, shows this to be true. Her suit may further refine and limit the deprivation of liberty for juveniles.

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