Dusk 'til dawn: Children's rights and the effectiveness of juvenile curfew ordinances

Boston University Law Review

Volumn 79, Issue 2, 1999, Pages 415-486

  Privor, Brian ^a  

^a NONE

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EID: 0040366070     PISSN: 00068047     EISSN: None     Source Type: Journal    
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References (441)

1. Henry Wadsworth Longfellow, The Children's Hour, in THE COMPLETE POETICAL WORKS OF HENRY WADSWORTH LONGFELLOW 201 (Boston, Houghton, Mifflin and Co. 1893).
2. WILLIAM SHAKESPEARE, HAMLET act 3, sc. 2.
3. James B. V. Thomson, The City of Dreadful Night, in THE CITY OF DREADFUL NIGHT AND OTHER POEMS 3 (London, Bertram Dobell 1899).
4. Throughout this Article, I will discuss increases in the number of juvenile-related crimes; however, it is not clear from the available data whether these increases are real or perceived. This Article focuses on nocturnal curfews and will not consider the distinct, though analogous, daytime truancy laws designed to keep youths in school. Laws aimed at loitering, "cruising," and gang-related activities are also beyond the central scope of this Article.
5. I will use the term "State" to refer to any governmental body, be it at the local, state, or federal level. The term "parent" refers to the person or persons responsible for a child's care and upbringing. This might include a biological mother or father, an adoptive parent, a foster parent, a relative, or any other legal guardian. I also will use the terms "child," "youth," "juvenile," and "minor" interchangeably. Most curfews are aimed at children age 16 or younger, although some have reached persons 18 years or older, and others only affect children in a younger age group.
6. See Gregory Z. Chen, Note, Youth Curfews and the Trilogy of Parent, Child, and State Relations, 72 N.Y.U. L. REV. 131, 132 (1997).
7. See New State Ice v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) ("It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.").
8. NEW ORLEANS, LA. CITY CODE § 42-80.2, reprinted in NEW ORLEANS, LA. CODE § 54-414 (Supp. 1998) (effective June 1, 1994). See infra app.
9. Of the 200 largest cities in America, New Orleans is the only city with an 8:00 p.m. curfew affecting children up to 16 years old. The only other cities with curfews earlier than 10:00 p.m. affecting this age group are Detroit, Michigan (9:00 p.m.); Hartford, Connecticut (9:30 p.m.); and Montgomery, Alabama (9:00 p.m.). A few cities have similar curfew parameters for younger children, usually 14 and under. See BUREAU OF JUSTICE STATISTICS, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 102-07 tbl.1.114 (1996) [hereinafter SOURCEBOOK] (describing the specific regulations in curfew laws for 200 American cities with populations over 100,000).
10. 10 Curfews for juveniles found early support in mid-nineteenth-century America from President Benjamin Harrison, who praised them as "'the most important municipal regulation for the protection of the children of American homes, from the vices of the street.'" Note, Curfew Ordinances and the Control of Nocturnal Juvenile Crime, 107 U. PA. L. REV. 66, 66-67 n.5 (1958) [hereinafter Curfew Ordinances] (quoting 8 ENCYCLOPEDIA AMERICANA 306 (1957)). The earliest curfews of any sort have been traced to the time of William the Conqueror (1066-1087), when a ringing bell signaled Englishmen that it was time to retire from the streets. See id. One court has noted that curfews were in force during the reign of Alfred (871-899). See Thistlewood v. Trial Magistrate for Ocean City, 204 A.2d 688, 690 (Md. 1964).
11. See, e.g., Ex parte McCarver, 46 S.W. 936, 937 (Tex. Crim. 1898) (invalidating a curfew that prohibited persons under 21 from being on the streets after 9:00 p.m. unless they were with a parent or guardian).
12. In the past 50 years, there have been various constitutional challenges to curfews in no less than 50 jurisdictions, including at least five federal circuits and 15 state supreme courts. Search of Westlaw, Allcases Database (Jan. 31, 1998) (search for records containing "curfew" and "juvenile" in the SY field).
13. Compare Qutb v. Strauss, 11 F.3d 488, 496 (5th Cir. 1993) (upholding a curfew under strict scrutiny after finding a compelling state interest in controlling crime), and Bykofsky v. Borough of Middletown, 401 F. Supp. 1242, 1261-62 (M.D. Pa. 1975) (upholding a curfew as a permissible regulation of freedom of movement), aff'd, 535 F.2d 1245 (3d Cir. 1975), with Waters v. Barry, 711 F. Supp. 1125, 1136 (D.D.C. 1989) (invalidating a curfew while holding that the rights of minors deserve the same constitutional protection as rights of adults), and Allen v. Bordentown, 524 A.2d 478, 486-87 (N.J. Super. Ct. Law Div. 1987) (striking down a curfew because it impermissibly interfered with the parental role).
14. See Qutb v. Bartlett, 511 U.S. 1127, 1127 (1994) (denying certiorari); Bykofsky v. Borough of Middletown, 429 U.S. 964, 964 (1976) (same).
15. See Bykofsky, 429 U.S. at 965-66 (Marshall, J., dissenting) ("Because I believe this case poses a substantial constitutional question-one which is of importance to thousands of towns with similar ordinances, I would grant a writ of certiorari.").
16. See id. at 964 (White, J., dissenting).
17. Juveniles comprise greater than a quarter of the U.S. population. As of 1995, there were 69 million juveniles, and 74 million are projected by the year 2010. See OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION, U.S. DEP'T OF JUSTICE, JUVENILE OFFENDERS AND VICTIMS: A NATIONAL REPORT 2 (1995) [hereinafter NATIONAL REPORT].
18. See SOURCEBOOK, supra note 9, at 102-07 tbl.1.114 (indicating that since the 1950s, 158 out of 200 American cities with populations over 100,000 have passed curfew laws). For an additional listing of selected cities that do and do not have curfews, see U.S. CONFERENCE OF MAYORS, A STATUS REPORT ON YOUTH CURFEWS IN AMERICA'S CITIES: A 347 CITY SURVEY 8 (1997) [hereinafter U.S. CONFERENCE OF MAYORS REPORT].
19. See William J Ruefle & Kenneth M. Reynolds, Keep Them at Home: Juvenile Curfew Ordinances in 200 American Cities, 15 AM. J. OF POLICE 63, 75-77 & tbls.1-2 (1996) (reporting data on curfew enactments and revisions in 200 of the largest American cities and stating that "the 1990s will be remembered as a decade in which a 'curfew movement' swept across America").
20. See U.S. CONFERENCE OF MAYORS REPORT, supra note 18, at 1 (reporting results for 276 cities with populations over 30,000).
21. See Chen, supra note 6, at 134-35 (tracing the social history behind the demand for and resulting enactment of juvenile curfews). At the turn of the century, approximately 3000 cities had adopted juvenile curfews. See Curfew Ordinances, supra note 10, at 67 n.5 (citing 8 ENCYCLOPEDIA AMERICANA 306 (1957)). At that time, much juvenile crime was attributed to a lack of parental control, primarily in the newly arrived immigrant families. During the Second World War, there was a renewed push for curfews to reign in juveniles because many parents were either fighting in the armed forces or working in war industries-often on night shifts. In addition, there was an influx of servicemen into urban areas, increasing the crime rate in those areas. See id. The 1970s also witnessed increasing reliance on juvenile curfews in an effort to combat mounting urban crime. See Chen, supra note 6, at 134 & n.18 (citing Mark Potok, Teen Curfews 'The Norm' in More Cities, USA TODAY, June 26, 1995, at A1).
22. See Chen, supra note 6, at 134-35 (tracing the social history behind the demand for and resulting enactment of juvenile curfews). At the turn of the century, approximately 3000 cities had adopted juvenile curfews. See Curfew Ordinances, supra note 10, at 67 n.5 (citing 8 ENCYCLOPEDIA AMERICANA 306 (1957)). At that time, much juvenile crime was attributed to a lack of parental control, primarily in the newly arrived immigrant families. During the Second World War, there was a renewed push for curfews to reign in juveniles because many parents were either fighting in the armed forces or working in war industries-often on night shifts. In addition, there was an influx of servicemen into urban areas, increasing the crime rate in those areas. See id. The 1970s also witnessed increasing reliance on juvenile curfews in an effort to combat mounting urban crime. See Chen, supra note 6, at 134 & n.18 (citing Mark Potok, Teen Curfews 'The Norm' in More Cities, USA TODAY, June 26, 1995, at A1).
23. See Chen, supra note 6, at 134-35 (tracing the social history behind the demand for and resulting enactment of juvenile curfews). At the turn of the century, approximately 3000 cities had adopted juvenile curfews. See Curfew Ordinances, supra note 10, at 67 n.5 (citing 8 ENCYCLOPEDIA AMERICANA 306 (1957)). At that time, much juvenile crime was attributed to a lack of parental control, primarily in the newly arrived immigrant families. During the Second World War, there was a renewed push for curfews to reign in juveniles because many parents were either fighting in the armed forces or working in war industries-often on night shifts. In addition, there was an influx of servicemen into urban areas, increasing the crime rate in those areas. See id. The 1970s also witnessed increasing reliance on juvenile curfews in an effort to combat mounting urban crime. See Chen, supra note 6, at 134 & n.18 (citing Mark Potok, Teen Curfews 'The Norm' in More Cities, USA TODAY, June 26, 1995, at A1).
24. See D.C. CODE ANN. § 6-2181 (1997) (imposing a curfew on minors age 17 and under because the city council determined that there had been an increase in juvenile violence). But see Hutchins v. District of Columbia, 942 F. Supp. 665, 680 (D.D.C. 1996) (holding curfew ordinance unconstitutional), aff'd, 144 F.3d 798 (D.C. Cir. 1998), vacated and reh'g en banc granted, 156 F.3d 1267 (D.C. Cir. 1998); cf. City of Panora v. Simmons, 445 N.W.2d 363, 370 (Iowa 1989) (en banc) (noting the rising crime rate and the "epidemic dimensions" of drug usage among minors in upholding a curfew law).
25. Telephone Interview with Peggy Wilson, New Orleans City Councilwoman (Mar. 6, 1998) (notes on file with author).
26. The NCVS reports incidents of violent crime based on interviews with crime victims. The Uniform Crime Report ("UCR"), in contrast, relies entirely on reported crimes. For a discussion of the various interpretations attributed to these crime statistics and the risks associated with relying on statistical data in general, see NATIONAL REPORT, supra note 17, at 46.
27. See OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION, U.S. DEP'T OF JUSTICE, JUVENILE OFFENDERS AND VICTIMS: 1997 UPDATE ON VIOLENCE 16 (1997) [hereinafter UPDATE] (stating that "[t]he rate at which juveniles committed violent crimes increased nearly 43% from 1989 to 1993").
28. See id. at 18 (citing FBI statistics for the reported Violent Crime Index offenses of murder, forcible rape, robbery, and aggravated assault).
29. See id. at 13 (reporting that after more than a decade of increases, the number of juvenile homicides fell in 1995). This was the same year the New Orleans City Council enacted a juvenile curfew ordinance. See supra note 8.
30. See UPDATE, supra note 25, at 1.
31. See id. at 4.
32. See CBS News/N.Y. Times Poll, June 3, 1996 (compiled by the Roper Center for Public Opinion Research), available in Westlaw Poll Database.
33. See Public Agenda Foundation, What Americans Really Think About the Next Generation Survey, 1996 (compiled by the Roper Center for Public Opinion Research), available in Westlaw Poll Database (providing statistical data regarding the public's perceptions of nighttime curfews).
34. See Frank Donze & Christopher Cooper, Curfew Winning Support: 89% Back Plan, NEW ORLEANS TIMES-PICAYUNE, May 21, 1994, at B1 (finding citizens' fear for their own safety to be the most common reason for supporting the curfew proposal).
35. See id.
36. See e.g., MD. ANN. CODE art. 41, § 2-101 (Supp. 1998) (codifying police powers to enact curfews); MICH. COMP. LAWS ANN. § 10.31 (West 1998) (same); see also MASS GEN. L. ANN. ch. 40, § 37A (West 1998) (enabling municipalities to pass curfews for the "public safety").
37. See, e.g., ALSKA STAT. § 29.35.085 (Michie 1998); COLO REV. STAT. ANN. § 30-15-401 (West 1998); MONT. CODE ANN. § 7-32-2302 (1998); OHIO REV. CODE ANN. § 307.71 (West 1998); TEX. LOCAL GOV'T CODE ANN. §§ 341.905, 351.903 (West 1998); WASH. REV. CODE. ANN. § 35.21.635 (West 1997); W. VA. CODE § 7-1-12 (1966) (1998).
38. See HAW. REV. STAT. § 577-16 (1988) (1998); 720 ILL. ANN. STAT. 555/1 (West 1998); IND. CODE ANN. § 31-37-3-3 (West 1998); MICH. COMP. LAWS ANN. § 722.751 (West 1998); OR. REV. STAT. § 419C.680 (1996) (1998); TENN CODE. ANN. § 39-17-1702 (1998); see also V.I. CODE ANN. tit. 14, § 481 (1998). Other states have passed legislation enabling municipalities to enact curfews in accordance with state-prescribed minimum guidelines. See, e.g., FLA. STAT. ANN. § 877.20-.25 (West 1998); N.H. REV. STAT. ANN. § 31:43-a-43-g (1998); N.J. STAT. ANN. § 40:48-2.52 (West 1998); see also R.I. GEN. LAWS. ANN. § 11-9-11 (1998) (allowing cities to designate "curfew streets" where a statewide juvenile curfew applies).
39. See SOURCEBOOK, supra note 9, at 102-07 tbl.1.114 (listing the curfew parameters for 200 American cities).
40. See supra note 9 (comparing the New Orleans curfew law to curfew ordinances in other major U.S. cities).
41. See, e.g., Sue Anne Pressley, The Big Easy Makes Serious Effort to Solve Sobering Crime Problem, WASH. POST, July 5, 1997, at A3 (discussing measures that New Orleans has employed to fight its serious violent crime problem).
42. See Chen, supra note 6, at 132-33.
43. See infra text accompanying notes 56-57 (noting that curfews applied to adults have been struck down in all but emergency situations); see also Bykofsky v. Borough of Middletown, 401 F. Supp. 1242, 1254-55 (M.D. Pa. 1975) (upholding juvenile curfew while conceding that curfew would be unconstitutional as applied to adults).
44. See infra text accompanying notes 165-66, 201-03; cf. Johnson v. City of Opelousas, 658 F.2d 1065, 1072 (5th Cir. Unit A Oct. 1981) (striking down the curfew, but expressing no opinion on the propriety of a curfew "narrowly drawn to accomplish proper social objectives").
45. Politicians claiming to represent the community's interests may, in fact, represent the views of only a small, vocal minority of their constituency. Researchers have found that the public is not nearly as punitive toward juvenile offenders as polls suggest. See generally Ira M. Schwartz, Juvenile Crime-Fighting Policies: What the Public Really Wants, in JUVENILE JUSTICE AND PUBLIC POLICY 214 (Ira M. Schwartz ed., 1992).
46. See, e.g., Mortal Cites Curfew for Drop in N.O. Crime, NEW ORLEANS TIMES-PICAYUNE, Sept. 29, 1994, at B4 (reporting that New Orleans Mayor, Marc Morial, attributed a 38% drop in juvenile crime during curfew hours to enforcement of the new juvenile curfew).
47. The U.S. Conference of Mayors also reported that 88% of cities with curfews believe that curfew enforcement has improved the safety of their streets. See U.S. CONFERENCE OF MAYORS REPORT, supra note 18, at 4. Additionally, more than half the cities with curfews in force for more than 10 years attributed a decrease in juvenile crime to the curfews.
48. JOHN LOCKE, SECOND TREATISE OF GOVERNMENT ch. VI, ¶ 55, at 31 (Thomas P. Peardon ed., Macmillan Publ'g Co. 1952) (1690).
49. See infra text and accompanying notes 56-57 (noting that curfews applied to adults have been struck down in all but emergency situations); see also Bykofsky v. Borough of Middletown, 401 F. Supp. 1242, 1254-55 (M.D. Pa. 1975) (upholding juvenile curfew while conceding that curfew would be unconstitutional as applied to adults).
50. Bykofsky v. Borough of Middletown, 429 U.S. 964, 965 (1976).
51. Meyer v. Nebraska, 262 U.S. 390, 402 (1923) (striking down a law prohibiting the teaching of foreign languages); see also Thucydides, Pericles' Funeral Speech, in GREEK POLITICAL ORATORY 33, 33-38 (Betty Radice ed., 1970) (describing the value of citizenship in ancient Greece and the responsibility of both parents and the State to imbue the young, and all Greeks, with "civic virtue").
52. See Meyer, 262 U.S. at 402 (acknowledging that Spartan values are not the same as those upon which our democracy rests).
53. See Planned Parenthood v. Danforth, 428 U.S. 52, 74 (1976) ("Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights."); Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 511 (1969) ("Students in school as well as out of school are 'persons' under our Constitution."); accord Waters v. Barry, 711 F. Supp. 1125, 1136 (D.D.C. 1989) (holding that the rights of minors deserve the same constitutional protection as the rights of adults).
54. 321 U.S. 158 (1944).
55. Id. at 168.
56. The parameters of the New Orleans curfew are discussed in detail below. See infra Part III.A. Boston's plan, which does not include a curfew, is discussed in Part III.B.
57. See, e.g., Johnson v. City of Opelousas, 658 F.2d 1065, 1074 (5th Cir. Unit A Oct. 1981) (invalidating a curfew for overbreadth).
58. See, e.g., id. at 1072 (listing various exceptions to curfews, the lack of which would render the curfew unconstitutional); see also discussion infra Part II.C.4 (explaining the "narrowly tailored" requirement).
59. See generally Tona Trollinger, The Juvenile Curfew: Unconstitutional Imprisonment, 4 WM. & MARY BILL RTS. J. 949, 951-60 (1996) (discussing the relationship between general emergency curfews and non-emergency juvenile curfews).
60. See, e.g., Hirabayashi v. United States, 320 U.S. 81, 99 (1943) (upholding a curfew for persons of Japanese ancestry and noting that wartime "necessarily involves some infringement of individual liberty"); Smith v. Avino, 91 F.3d 105, 109-10 (11th Cir. 1996) (upholding a curfew during a hurricane and stating that fundamental rights may be temporarily limited in an emergency situation); State v. Dobbins, 178 S.E.2d 449, 456-59 (N.C. 1971) (upholding a temporary curfew noting that it was a night-to-night emergency curfew enacted to control an imminent threat of rioting and widespread burning); cf. Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972) (holding a general vagrancy statute void for vagueness); Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971) (invalidating an ordinance which prohibited assembly of three or more persons engaged in behavior "annoying" to others).
61. See, e.g., MISS. CODE ANN. § 45-17-5 (1998) (noting that general curfews should be limited to a particular geographical area, and should not exceed five days in duration).
62. See Trollinger, supra note 56, at 956 (arguing that a blanket curfew law could be considered an "emergency measure" only under certain circumstances). For example, the District of Columbia enacted a temporary juvenile curfew in response to a declared state of emergency relating to drug trafficking by minors and increased violent victimization ot minors. See Temporary Curfew Emergency Act of 1989, No. 8-325, D.C. Law 8-13, 36 D.C. Reg. 3373 (invalidated by Waters v. Barry, 711 F. Supp. 1125, 1136 (D.D.C. 1989)).
63. See infra Part III.A.
64. Curfew ordinances have also been tested on other grounds that are not the central focus of this paper, including challenges based on vagueness and delegation of duty. Many of these defects can be avoided with careful legislative drafting; however, overbreadth is a distinct concern in the First Amendment context. A statute is void for vagueness if its "standards result in erratic and arbitrary application based on individual impressions and personal predilections." Bykofsky v. Borough of Middletown, 401 F. Supp. 1242, 1248 (M.D. Pa. 1975) (upholding the city's curfew). The regulation must be specific enough so that one can identify an ascertainable standard for inclusion or exclusion of conduct that falls within the proscription. See Coates v. Cincinnati, 402 U.S. 611, 614 (1971). For example, a curfew ordinance must specifically define the starting and ending time for the curfew. See Naprstek v. City of Norwich, 545 F.2d 815, 817 (2d Cir. 1976). The courts often voice concern that a vague statute can leave too much discretion to police in determining whether or not to stop or detain a particular person. See Nunez v. City of San Diego, 114 F.3d 935, 943 (9th Cir. 1997). There have been occasional delegation challenges that address the power of policy makers to pass curfew ordinances. See, e.g., Village of Deerfield v. Greenberg, 550 N.E.2d 12, 14 (Ill. App. 2d 1990) (upholding delegation in the face of a contention that municipal authority conflicted with state legislation); In re Mosier, 394 N.E.2d 368, 377 (Ct. of Common Pleas, Ohio 1978) (holding that an ordinance, which gave the police chief exclusive discretion to grant permit exceptions to a curfew, amounted to an unconstitutional delegation of legislative power). But see Bykofsky, 401 F. Supp. at 1250 (upholding the mayor's power to issue permit exceptions). Another disturbing feature of curfews - and a basis for criticism - should also be noted: curfew violations are often used to justify investigative stops for searches and seizures. Rather than a direct facial attack on the curfew, challenges based on illegal searches and seizures are primarily aimed at suppressing the fruits of an illegal stop or arrest. See People v. Teresinski, 640 P.2d 753, 756-58 (Cal. 1982) (invalidating a search incident to arrest for curfew violation); City of Columbus v. Watson, 580 N.E.2d 494, 495 (Ohio Ct. App. 1989) (holding a search invalid for similar reasons). But see Waters, 711 F. Supp. at 1138 (rejecting a Fourth Amendment claim as derivative and redundant of plaintiff's substantive due process claims). Police officers may misuse curfew stops as a pretext to justify more intrusive searches which then lead to more serious charges. See Robert E. Shepherd, Jr., The Proliferation of Juvenile Curfews, 1997 A.B.A. SEC. CRIM. JUST. With a curfew ordinance in place, police officers have a ready excuse for an investigatory stop of children with an even lower threshold than Terry's requirement of "reasonable suspicion." See Terry v. Ohio, 392 U.S. 1, 27 (1968) (authorizing an officer to "stop and frisk" an individual if the officer reasonably suspects that a crime has been committed). Thus, in the case of children, police will not have to articulate any basis for a search and seizure other than a suspicious "youthful" appearance. This scenario should give one pause, for it seems chillingly analogous to clearly illegal stops based on skin color alone.
65. See, e.g., City of Maquoketa v. Russell, 484 N.W.2d 179, 184-86 (Iowa 1992) (holding a curfew ordinance unconstitutional for overbreadth and claiming that it violated minors' fundamental rights under the First Amendment).
66. See, e.g., Schleifer v. City of Charlottesville, 963 F. Supp. 534, 550-51 (W.D. Va. 1997) (denying a preliminary injunction after finding that the curfew law did not, on its face, violate the Fourth Amendment), aff'd, 159 F.3d 843 (4th Cir. 1998).
67. See, e.g., Waters, 711 F. Supp. at 1132-33 (ruling that the curfew ordinance was unconstitutional because it burdened the Fifth Amendment due process rights of juveniles).
68. See, e.g., Nunez v. City of San Diego, 114 F.3d 935, 951 (9th Cir. 1997) (finding a curfew ordinance unconstitutional because it violated parents' substantive due process right to "rear children without undue government interference").
69. See, e.g., Qutb v. Strauss, 11 F.3d 488, 492 (5th Cir. 1993) (analyzing a curfew ordinance under the Equal Protection Clause because the law distinguished between classes of individuals on the basis of age).
70. See, e.g., Johnson v. City of Opelousas, 658 F.2d 1065, 1072 (5th Cir. Unit A Oct. 1981) ("[T]he right to be free to travel . . . certainly extends in some measure to juveniles.").
71. See, e.g., Metropolitan Dade County v. Pred, 665 So. 2d 252, 252-53 (Fla. Dist. Ct. App. 1995) (reversing a lower court that had held a city's curfew ordinance violated minors' constitutional right to privacy).
72. See, e.g., Bykofsky v. Borough of Middletown, 401 F. Supp. 1242, 1262 (M.D. Pa. 1975) (noting that the Griswold Court recognized a family unit's right to protection from certain governmental interferences under the Ninth Amendment) (citing Griswold v. Connecticut, 381 U.S. 479, 496 (1965) (Goldberg, J., concurring))
73. See supra note 13 and accompanying text (contrasting some of the approaches different courts have taken in deciding juvenile curfew cases); see also discussion infra Part II.B-C (discussing different courts' responses to various constitutional challenges regarding juvenile curfews).
74. See Schleifer v. City of Charlottesville, 159 F.3d 843, 862 (4th Cir. 1998) ("[T]he rights of minors in relation to the state must be analyzed to consider not only the interests of the minor and the state but also the interests of the parents."). See generally Chen, supra note 6, at 132 (discussing the "tri-partite" nature of a child's rights).
75. Bellotti v. Baird, 443 U.S. 622, 633 (1979) [hereinafter Bellotti 11] (plurality opinion) (invalidating statutory restrictions on a minor's right to obtain an abortion). Eight justices agreed with the result of Bellotti II, but no opinion garnered a majority. See id. at 622. (Powell, J, for the plurality, joined by Burger, C.J., Stewart and Rehnquist, JJ. with Stevens, J., joined by Marshall, Brennan, and Blackmun, JJ., concurring).
76. Schall v. Martin, 467 U.S. 253, 265 (1984) (upholding a New York statute authorizing pretrial detention for accused juvenile delinquents).
77. The Supreme Court previously confronted this "vexing question" in another context relating to the regulation of minors: "The question of the extent of state power to regulate conduct of minors not constitutionally regulable when committed by adults is a vexing one, perhaps not susceptible of precise answer. We have been reluctant to attempt to define the 'totality of the relationship of the juvenile and the state.'" Carey v. Population Servs. Int'l, 431 U.S. 678, 692 (1977) (invalidating a statute that prohibited the distribution of contraceptives to minors) (quoting In re Gault, 387 U.S. 1, 13 (1967)).
78. 443 U.S. 622 (1979).
79. See Katherine Hunt Federle, Children, Curfews, and the Constitution, 73 WASH. U. L.Q. 1315, 1337-38 & n.142 (1995) (reporting that a clear majority of constitutional curfew cases decided since 1979 have approvingly cited Bellotti II).
80. Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 515 (1969) (Stewart, J., concurring).
81. See 443 U.S. at 634 ("[T]he constitutional rights of children cannot be equated with those of adults . . . ."); cf. Planned Parenthood v. Danforth, 428 U.S. 52 (1976). In Danforth, the Court stated that, "Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights." Id. at 74.
82. See, e.g., Metropolitan Dade County v. Pred, 665 So. 2d 252, 253 (1996) ("[C]hildren . . . do not enjoy the same quantum or quality of rights as adults.").
83. See Schleifer v. City of Charlottesville, 159 F.3d 843, 863 (4th Cir. 1998) (dissenting opinion) ("When these [augmented state] interests justify regulation, they do so not because a minor's constitutional rights are always inferior to those of an adult but rather because the government's specific interests as regards minors are sometimes sufficient to allow regulation to survive strict scrutiny."); Hutchins v. District of Columbia, 144 F.3d 798, 826 (D.C. Cir. 1998) (Tatel, J., concurring) ("Strict scrutiny accommodates the government's legitimate need to regulate minors - in Bellotti II's words, 'to adjust its legal system to account for children's vulnerability and [ ] needs,' - by recognizing that legislatures may have compelling reasons to limit fundamental juvenile freedoms in situations where adults could never be restricted.") (alteration in original) (citation omitted), vacated and reh'g en banc granted, 156 F.3d 1267 (D.C. Cir. 1998); City of Panora v. Simmons 445 N.W.2d 363, 371-72 (Iowa 1989) (dissenting opinion) ("The analysis does not mean that children's rights are any less fundamental than adults'; it only means that the special governmental interest must justify infringement of the children's rights."); see also Brown v. Ashton, 611 A.2d 599, 608 (Md. Ct. Spec. App. 1992) (applying the Bellotti II factors "to determine if any one of them provides the compelling interest needed to justify restrictions . . . on the fundamental rights of children"), vacated on other grounds 660 A.2d 447 (Md. 1995); Allen v. City of Bordentown, 524 A.2d 478, 486 (N.J. Super. Ct. Law Div. 1987) (concluding that the Bellotti II factors did not create a compelling state interest to restrict rights after holding that allowing some regulation "does not change the basic fact that the rights are fundamental"); cf. McCollester v. City of Keene, 514 F. Supp. 1046, 1050 (D.N.H. 1981) [hereinafter McCollester I] (relying on Bellotti II for determining the "amount of protection afforded minors' due process rights"); In re Mosier, 394 N.E.2d 368, 372 (Ct. of Common Pleas, Ohio 1978) (rejecting the argument that a state has a compelling interest to restrict minors' First Amendment rights). The Bellotti II factors themselves suggest a concern for minors' ability to exercise their constitutional rights. The first factor considers the possibility of an infirmity peculiar to children that renders the exercise of certain rights potentially harmful to them. The second factor invites a determination whether the particular child is capable of making mature decisions Finally, the third factor directs courts to consider whether the parents might act as a proxy for the child in exercising the right at issue. None of these factors suggests that the right at stake is itself any less fundamental, but only that the child may not be capable of exercising that right. The Bellotti II plurality indicated that these criteria may justify "limitations" on the minor's freedoms, see 443 U.S. at 635, 637, and the Court referred to these criteria when it determined that the State could not "unduly burden" the minor's right to choose an abortion. See id. at 646-48. However, the Court never said the child's rights were not fundamental.
84. Bellotti II, 443 U.S. at 634. Four of the five concurring justices did not join this part of the plurality's opinion, but they did not dispute the use of the three factors. See id. at 652-56.
85. See id. at 633 (holding that a statute restricting minors' access to abortions unconstitutional because it placed an undue burden on their due process rights).
86. Some argue that if the child is free to make a decision whether to have an abortion, then it is unimaginable that the child would not be free from State interference in other less momentous contexts. See Johnson v. City of Opelousas, 658 F.2d 1065, 1073 (5th Cir. Unit A Oct. 1981) ("It would be anomalous to permit minors to . . . obtain abortions without parental consent, but to deny them the right to decide, within the bounds of parental judgment, whether or not to engage in the above activities which at present are proscribed by the curfew ordinance.") (citations omitted); cf. Bellotti II, 443 U.S. at 642 ("[T]here are few situations [like abortion] in which denying a minor the right to make an important decision will have consequences so grave and indelible."). The abortion decision is unique and life-shaping. As a result, the State must allow even the youthful individual to make the difficult and private decision to obtain an abortion, whereas the decision to be out and about on the street at night may be subject to greater State supervision (assuming a sufficient State interest). Therefore, the State may have comparatively less leeway to regulate that decision than it has in situations where the juvenile's liberty interest is not as important.
87. Compare Qutb v. Strauss, 11 F.3d 488, 492 n.6 (5th Cir. 1993) (upholding a curfew law while purporting to not engage in a Bellotti II analysis because the parties agreed that the state had a compelling interest to regulate minors), with McCollester v. City of Keene, 586 F. Supp. 1381, 1385-86 (D.N.H. 1984) [hereinafter McCollester II] (invalidating a curfew law after finding that it failed to meet the Bellotti II criteria by sweeping too broadly and prohibiting innocent behavior). Courts have also differed on which stage in the constitutional analysis is the appropriate one for applying the Bellotti II factors. Compare In re J.M., 768 P.2d 219, 223 (Colo. 1989) (employing the Bellotti II factors to determine whether a minor's fundamental rights were at issue), with Brown v. Ashton, 611 A.2d 599, 608 (Md. Ct. Spec. App. 1992), vacated on other grounds, 660 A.2d 447 (Md. 1995) (applying the Bellotti II factors to assess the state's interests under a strict scrutiny analysis). Likewise, there is no consensus regarding the number of Bellotti II factors that must be present to justify the differential treatment of minors. Compare Johnson v. City of Opelousas, 658 F.2d 1065, 1073 (5th Cir. Unit A Oct. 1981) (suggesting one factor would be sufficient to justify unequal treatment), and Village of Deerfield v. Greenberg, 550 N.E.2d 12, 17 (Ill. App. Ct. 1990) (holding two factors sufficient), with McCollester I, 514 F. Supp. 1046, 1053 (D.N.H. 1981) (invalidating a curfew law that referred to only two out of the three Bellotti II factors).
88. Bellotti II, 443 U.S. at 642.
89. Id.
90. See Village of Deerfield, 550 N.E.2d at 16 (stating that using the Bellotti II test is "troublesome outside of the particular setting of abortion rights"); see also Planned Parenthood v. Casey, 505 U.S. 833, 839 (1994) (dissenting opinion) ("[T]he abortion decision must be recognized as sui generis, different in kind from the rights protected in the earlier cases under the rubric of personal or family privacy and autonomy.").
91. For a different perspective on the locus of minors' rights and the Bellotti II three factor balancing test, see Federle, supra note 76, at 1318-19 (arguing that children's rights should be reconceptualized in terms of an "empowerment rights perspective" and rejecting the capacity factor as the organizing principle for understanding a minor's claim to individual liberty).
92. Bellotti II, 443 U.S. at 633.
93. See id. at 633-34.
94. See, e.g., Bykofsky v. Borough of Middletown, 401 F. Supp. 1242, 1254 (M.D. Pa. 1975) ("[T]he conduct of minors may be constitutionally regulated to a greater extent than those [sic] of adults."); see also Prince v. Massachusetts, 321 U.S. 158, 168 (1944) ("The state's authority over children's activities is broader than over like actions of adults . . . . A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens, with all that implies."). Admittedly, the Prince holding, in light of its factual context, is difficult to reconcile with the position taken in this paper. It is important to note, however, that the Prince Court's holding did "not extend beyond the facts the case presents." Id. at 171. The Yoder Court also confined the Prince holding to cases involving threats to a child's health or the public safety. See Wisconsin v. Yoder, 406 U.S. 205, 230 (1971). It is also significant that the law at issue in Prince involved the regulation of very young children. See Prince, 321 U.S. at 158. The author contends that the Court should revisit and reconsider this case.
95. 406 U.S. 205 (1972) (sustaining the parents' First Amendment free exercise claim that their children should be exempted from a compulsory education law).
96. Id. at 214.
97. See LAWRENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12-2, at 789-94 (2d ed. 1988) (describing a two step approach for evaluating the constitutionality of the State's interference with personal liberties); see also McCollester II, 586 F. Supp. 1381, 1385 (D.N.H. 1984) (evaluating the liberty interest first before turning to weigh the "state interest justifying this intrusion").
98. Note, Assessing the Scope of Minors' Fundamental Rights: Juvenile Curfews and the Constitution, 97 HARV. L. REV. 1163, 1172-73 (1984) [hereinafter Assessing the Scope] (arguing that the State should only be allowed to limit juveniles' rights only under certain well-defined circumstances).
99. See Susan M. Horowitz, A Search for Constitutional Standards: The Judicial Review of Juvenile Curfew Ordinances, 24 COLUM. J.L. & Soc. PROBS. 381, 409 (1991) (suggesting that we should apply the Bellotti II test to "modify [ ] the state's burden to illustrate a compelling interest rather than discounting the rights at stake"); Trollinger, supra note 56, at 990 (stating that the Bellotti II factors are used "to assess the [relative] impact of the governmental interest in regulating liberties that the Constitution identifies as fundamental to minors and adults. Thus, the juvenile status of the right-holder does not affect the nature or value of the liberty but only augments the regulatory authority."); see also Schleifer v. City of Charlottesville, 159 F.3d 843, 863 (4th Cir. 1998) (dissenting opinion) ("While minors generally possess the same rights against governmental deprivation as adults, considerations unique to minors can lend more weight to the government's interest in regulating this class."); Hutchins v. District of Columbia, 144 F.3d 798, 826 (D.C. Cir. 1998) (Tatel, J., concurring) ("Because fundamental rights are at stake in this case, I would apply strict scrutiny. Strict scrutiny . . . recogniz[es] that legislatures may have compelling reasons to limit fundamental juvenile freedoms . . . .") (citation omitted), aff'd, 144 F.3d 798 (D.C. Cir. 1998), vacated and reh'g en banc granted, 156 F.3d 1267 (D.C. Cir. 1998); cf. Hutchins, 144 F.3d at 809 (majority opinion) (applying intermediate scrutiny because the "strict scrutiny test must give way in some respect in order to give effect and meaning to the governmental interest"). In Schleifer v. City of Charlottesville, the district court observed: Lowering the standard of review - rather than denying the existence of a bare right -conforms to the Supreme Court's general equal protection analysis as well as the Court's statements regarding state regulation of minors. The Supreme Court generally seems to presume that the guarantees of the Bill of Rights may be invoked by all people; this presumption accords with the constitutional text, which does not restrict its protections to isolated groups of individuals. Yet the presumption of equal treatment under the Constitution is somewhat diluted by the sliding scale of scrutiny employed by the Supreme Court, depending on the characteristics of the individual seeking constitutional protection. 963 F. Supp. 534, 541 (W.D. Va. 1997), aff'd, 159 F.3d 843 (4th Cir. 1998).
100. See, e.g., City of Panora v. Simmons, 445 N.W.2d 363, 372 (Iowa 1989) (dissenting opinion) ("If the government interest is not unique to children in terms of the Bellotti reasons, the government must then treat adults and children the same."); Schleifer v. City of Charlottesville, 159 F.3d 843, 864 (4th Cir. 1998) (dissenting opinion) (noting that there is no justification for "allow[ing] a minor to be deprived of constitutional rights when a similar deprivation would be constitutionally intolerable for adults, even though the state lacks any reason for different treatment"). [T]he state's power to act in furtherance of its special interests regarding children would not be plenary; rather, the state would have to show not simply that a restriction affected only children, but also that concerns unique to children and relevant to the specific situation in question legitimated the restriction. Assessing the Scope, supra note 95, at 1172; see also Brian J. Lester, Comment, Is it Too Late for Juvenile Curfews? Qutb Logic and the Constitution, 25 HOFSTRA L. REV. 665, 683-84 (1996) ("A proper analysis of the Bellotti factors shows that the particular characteristics of children do not make the interest of the city of Dallas such that they can restrict the rights of children differently than adults in this context.").
101. See City of Panora, 445 N.W.2d at 374 (dissenting opinion) (arguing that other courts' analyses in juvenile rights cases are flawed because they do not employ a two part test that first identifies the individual right at issue and then evaluates the State interest in regulating or curtailing that right).
102. See, e.g., In re J.M., 768 P.2d 219, 223 (Colo. 1989); Metropolitan Dade County v. Pred, 665 So. 2d 252, 253 (Fla. Dist. Ct. App. 1995).
103. See Federle, supra note 76, at 1350 ("The courts' analysis, then, collapses into a tautology: Children's fundamental rights are not violated because the state may treat them differently, and the state has greater authority to regulate their activities because children's rights are not as extensive as those held by adults.").
104. This suggestion would resonate rather disturbingly with Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856) (holding that citizenship does not extend to African-Americans), overruled with adoption of the Fourteenth Amendment.
105. See Hutchins v. District of Columbia, 942 F. Supp. 665, 671-72 (D.D.C. 1996) (rejecting the Bykofsky court's analysis and holding that minors have a fundamental right to free movement, although that right need "not be treated in the same manner as the right of adults"), aff'd, 144 F.3d 798 (D.C. Cir. 1998), vacated and reh'g en banc granted, 156 F.3d 1267 (D.C. Cir. 1998); City of Panora v. Simmons, 445 N.W.2d 363, 374 (Iowa 1989) (dissenting opinion) (disagreeing with the majority's reliance on Bykofsky, which held that the State may subject minors to more extensive regulation than it may impose upon adults); Brown v. Ashton, 611 A.2d 599, 608 (Md. App. 1992) (asserting that, "with respect to deprivations of liberty [children's] rights are virtually coextensive with that of adults") (citations omitted), vacated on other grounds, 660 A.2d 447 (Md. 1995); see also Waters v. Barry, 711 F. Supp. 1125, 1136 (D.D.C. 1989) (rejecting the idea that "minors' rights are somehow less compelling than those of adults . . . [a] conclusion [that] is inseparable from [the Bykofsky court's] finding that the Middletown ordinance did not violate the due process rights of Middletown's minors"). But cf. City of Milwaukee v. K.F., 426 N.W.2d 329, 340 (Wis. 1988) (approving the Bykofsky Court's balancing of interests, and noting the state's "compelling" interest).
106. LAWRENCE TRIBE, ABORTION: THE CLASH OF ABSOLUTES 96 (1992). In Bykofsky, for example, the district court conceded that the curfew as applied to adults would infringe fundamental rights. See Bykofsky v. Borough of Middletown, 401 F. Supp. 1242, 1254-55 (M.D. Pa. 1975). However, after considering the State interests, the court determined that the minors' rights were not fundamental and proceeded with a rational basis analysis. See id. at 1265-66.
107. See Hutchins v. District of Columbia, 144 F.3d 798, 826 (D.C. Cir. 1998) (Tatel, J., concurring) ("To be sure, the District may be able to articulate a compelling interest in controlling the movement of juveniles, but that neither abrogates nor weakens the fundamental right."), vacated and reh'g en banc granted, 156 F.3d 1267 (D.C. Cir. 1998).
108. See, e.g., In re Gault 387 U.S. 1, 13 (1967) ("[W]hatever may be their precise import neither the Fourteenth Amendment nor the Bill of Rights is for adults alone."); see also Bellotti II 443 U.S. 622, 634-35 (1979) (discussing numerous cases that have addressed the issue of minors' Due Process rights). Like adults, minors are entitled to freedom of religion, see Board of Educ. v. Mergens, 496 U.S. 226, 234 (1990) (granting student religious groups the right to meet at school during after-school hours; freedom of expression, see Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 505-06 (1969) (allowing students to wear armbands to protest the Vietnam War); the privacy right to obtain an abortion, see Planned Parenthood v. Danforth, 428 U.S. 52, 74-75 (1976) (holding that not all minors need parental consent to obtain abortions); the right not to be deprived of property without due process, see Goss v. Lopez, 419 U.S. 565, 574 (1975) (holding that a child's right to public education is a property interest safeguarded by the Due Process Clause); the right to be convicted only by proof beyond a reasonable doubt, see In re Winship, 397 U.S. 358, 365 (1970) (stating that children and adults have equal rights to the presumption of innocence and that the State bears the same burden of proving guilt beyond a reasonable doubt for both children and adults in a criminal trial); and other due process rights associated with criminal trials, see In re Gault, 387 U.S. at 20 (holding that due process rights are fundamental and "an indispensable foundation of the individual freedom" that cannot be denied an adult or child).
109. See, e.g., In re Gault 387 U.S. 1, 13 (1967) ("[W]hatever may be their precise import neither the Fourteenth Amendment nor the Bill of Rights is for adults alone."); see also Bellotti II 443 U.S. 622, 634-35 (1979) (discussing numerous cases that have addressed the issue of minors' Due Process rights). Like adults, minors are entitled to freedom of religion, see Board of Educ. v. Mergens, 496 U.S. 226, 234 (1990) (granting student religious groups the right to meet at school during after-school hours; freedom of expression, see Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 505-06 (1969) (allowing students to wear armbands to protest the Vietnam War); the privacy right to obtain an abortion, see Planned Parenthood v. Danforth, 428 U.S. 52, 74-75 (1976) (holding that not all minors need parental consent to obtain abortions); the right not to be deprived of property without due process, see Goss v. Lopez, 419 U.S. 565, 574 (1975) (holding that a child's right to public education is a property interest safeguarded by the Due Process Clause); the right to be convicted only by proof beyond a reasonable doubt, see In re Winship, 397 U.S. 358, 365 (1970) (stating that children and adults have equal rights to the presumption of innocence and that the State bears the same burden of proving guilt beyond a reasonable doubt for both children and adults in a criminal trial); and other due process rights associated with criminal trials, see In re Gault, 387 U.S. at 20 (holding that due process rights are fundamental and "an indispensable foundation of the individual freedom" that cannot be denied an adult or child).
110. See, e.g., In re Gault 387 U.S. 1, 13 (1967) ("[W]hatever may be their precise import neither the Fourteenth Amendment nor the Bill of Rights is for adults alone."); see also Bellotti II 443 U.S. 622, 634-35 (1979) (discussing numerous cases that have addressed the issue of minors' Due Process rights). Like adults, minors are entitled to freedom of religion, see Board of Educ. v. Mergens, 496 U.S. 226, 234 (1990) (granting student religious groups the right to meet at school during after-school hours; freedom of expression, see Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 505-06 (1969) (allowing students to wear armbands to protest the Vietnam War); the privacy right to obtain an abortion, see Planned Parenthood v. Danforth, 428 U.S. 52, 74-75 (1976) (holding that not all minors need parental consent to obtain abortions); the right not to be deprived of property without due process, see Goss v. Lopez, 419 U.S. 565, 574 (1975) (holding that a child's right to public education is a property interest safeguarded by the Due Process Clause); the right to be convicted only by proof beyond a reasonable doubt, see In re Winship, 397 U.S. 358, 365 (1970) (stating that children and adults have equal rights to the presumption of innocence and that the State bears the same burden of proving guilt beyond a reasonable doubt for both children and adults in a criminal trial); and other due process rights associated with criminal trials, see In re Gault, 387 U.S. at 20 (holding that due process rights are fundamental and "an indispensable foundation of the individual freedom" that cannot be denied an adult or child).
111. For example, children can be compelled to attend school. See Pierce v. Society of Sisters, 268 U.S. 510, 534 (1925). Likewise, they have no protected right to purchase pornographic materials. See Ginsberg v. New York, 390 U.S. 629, 639 (1968). Nor do children possess a guarantee of trial by jury in delinquency proceedings. See McKeiver v. Pennsylvania, 403 U.S. 528, 545 (1971). As Justice Stewart observed: [A] child - like someone in a captive audience - is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees. It is only upon such a premise . . . that a State may deprive children of other rights - the right to marry, for example, or the right to vote - deprivations that would be constitutionally intolerable for adults. Ginsberg, 390 U.S. at 649-50 (Stewart, J., concurring).
112. Bellotti II, 443 U.S. at 635.
113. "Children have a very special place in life which law should reflect. Legal theories and their phrasing in other cases readily lead to fallacious reasoning if uncritically transferred to determination of a State's duty towards children." May v. Anderson, 345 U.S. 528, 536 (1953).
114. See Bellotti II, 443 U.S. at 634 (articulating the three factor test that accounts for the child as a unique figure whose liberty exists within a constellation of conflicting rights: the State's rights, the parents' rights, and their own). But see In re
115. Gault, 387 U.S. at 13 ("We do not in this opinion consider the impact of those constitutional provisions upon the totality of the relationship of the juvenile and the State."). It should be noted, however, that In re Gault was decided approximately 15 years before Bellotti II.
116. See, e.g., In re Gault, 387 U.S. at 13 (conceding that the Court did not "consider the impact of these constitutional provisions upon the totality of the relationship of the juvenile and the state").
117. See Chen, supra note 6, at 145-46 (discussing the many contradictions in lower court opinions regarding the inter-relationship of the State's power to regulate, the parents' authority over their children, and the child's own individual liberties).
118. Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 515 (1969) (Stewart, J., concurring).
119. Bellotti II, 443 U.S. at 637 (quoting Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925)).
120. See id.; see also Chen, supra note 6, at 156-57 (discussing a variety of cases that have debated whether curfew laws aid parents or unjustly interfere with their authority).
121. Bellotti II, 443 U.S. at 638-39 (plurality opinion).
122. See id. at 643-44 (plurality opinion) (requiring an "alternative procedure whereby authorization for the abortion can be obtained" without parental notification and consent).
123. See id. (finding that in the abortion context a pregnant minor can show either "that she is mature enough and well enough informed to make her abortion decision in consultation with her physician, independently of her parents' wishes; or . . . that even if she is not able to make this decision independently, the desired abortion would be in her best interest").
124. See id.
125. See id. (stating that minors should have the opportunity to show they are mature enough to make an abortion decision without first obtaining their parents' consent); see also Hodgson v. Minnesota, 497 U.S. 417, 453 (1990) (noting the "difference between parental interests and the child's best interest").
126. Hodgson v. Minnesota, 497 U.S. 417 (1990).
127. Bellotti II, 443 U.S. 622 (1979).
128. Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969).
129. Ginsberg v. New York, 390 U.S. 629 (1968).
130. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 231 (1972) (holding that parents have a right to control their children's education); Pierce v. Society of Sisters, 268 U.S. 510, 534 (1925) (acknowledging that parents may direct the upbringing of their children); Meyer v. Nebraska, 262 U.S. 390, 403 (1923) (invalidating a state statute that banned the teaching of foreign languages because it impermissibly interfered with the parents' authority to direct their children's upbringing).
131. See Chen, supra note 6, at 143-49. Chen observes, for example, that "[b]y interpreting Tinker as a straightforward First Amendment case, the Court treated John Tinker first as an individual endowed with fundamental rights and only incidentally as a minor." Id. at 144.
132. "[P]ersonal freedoms are not absolute, and the liberty guaranteed by the due process clause implies absence of arbitrary interferences but not immunity from reasonable regulations." Bykofsky v. Borough of Middletown, 401 F. Supp. 1242, 1255 (M.D. Pa. 1975).
133. See Bellotti II, 433 U.S. 622, 634 (1979).
134. Qutb v. Strauss, 11 F.3d 488, 492 (5th Cir. 1993) (quoting Hodgson v. Minnesota, 497 U.S. 417, 444 (1990)).
135. See Bellotti II, 443 U.S. 622, 635-36 (1979) (noting that children "lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them"); Qutb v. Strauss, 11 F.3d 488, 492 (5th Cir. 1993) (recognizing that the State has an interest in preventing juvenile victimization and in promoting the safety and welfare of its young citizens); Bykofsky v. Borough of Middletown, 401 F. Supp 1242, 1257 (M.D. Pa 1975) (acknowledging a State interest in protecting the safety, peace, and order of the community). Thus, the State might assert a compelling interest in preventing excessive juvenile crime in order to justify curtailing minors' rights. See id.
136. Scott A Kizer, Note, Juvenile Curfew Laws: Is There a Standard?, 45 DRAKE L. REV. 749, 754 (1997).
137. See Bykofsky, 401 F. Supp. at 1255 (holding that personal freedoms are not immune from reasonable regulation).
138. See supra text accompanying notes 92-94 (outlining a two part test to determine when a State's interest may legitimately regulate a child's constitutional rights).
139. See discussion supra Part II.B (discussing the relevance of the Bellotti II factors in the balancing of State interests against juvenile rights).
140. See U.S. CONST. amend. XIV, § 1 ("No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.").
141. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
142. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973) (stating that a group "possesses the traditional indicia of suspectness" if it is "saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process").
143. See Plyler v. Doe, 457 U.S. 202, 217 n.15 (1982) (holding that the test for identifying whether a right is fundamental entails, "determining whether a class-based denial of a particular right is deserving of strict scrutiny under the Equal Protection Clause, [by looking] to the Constitution to see if the right infringed has its source, explicitly or implicitly, therein").
144. See infra notes 151-53 and accompanying text (explaining strict scrutiny as applied to cases arising under the Equal Protection Clause).
145. See Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313-14 (1976); Qutb v. Strauss, 11 F.3d 488, 492 (5th Cir. 1993). However, some have contended that age is a quasi-suspect class, and should be subject to at least intermediate scrutiny. See TRIBE, supra note 94, § 16-31, at 1592; cf. Craig v. Boren, 429 U.S. 190, 197-98 (1976) (applying intermediate scrutiny to a gender-based classification). Professor Tribe argues that age should be a "semi-suspect" classification such that a sufficiently mature, independent youth could "rebut any implied or asserted age-based incapacity." TRIBE, supra note 94, § 16-31, at 1592. However, no court has adopted this view. See, e.g., Bykofsky, 401 F. Supp. at 1265 (discussing intermediate scrutiny but applying rational basis review). Therefore, assuming age is not a semi-suspect class and there are no fundamental rights at stake, a court will apply only the minimal scrutiny of rational basis review to a curfew ordinance. Notably, Professor Tribe's view is similar to the Supreme Court's position in its Bellotti II decision, but each takes a different tack. The Bellotti II Court applied strict scrutiny but lowered the State's burden, creating a "compelling for children" standard. See supra text accompanying notes 94-97. Professor Tribe, on the other hand, advocates strengthening the traditional rational basis review by allowing the plaintiff to rebut an ordinarily permissible classification. See TRIBE, supra note 94, § 16-31, at 1592.
146. 401 F. Supp. at 1265.
147. See id. at 1265-66.
148. See Schall v. Martin, 467 U.S. 253, 256-57 (1984). In contrast, strict scrutiny requires the State to demonstrate that the law serves a compelling interest, is narrowly tailored, and utilizes the least intrusive means to achieve the State's objective. See infra notes 165-73 and accompanying text.
149. Plyler v. Doe, 457 U.S. 206, 216 (1982).
150. FCC v. Beach Communications, 508 U.S. 307, 313 (1993).
151. See id. at 315 (asserting that the State's classification scheme "may be based on rational speculation unsupported by evidence or empirical data"); Schleifer v. City of Charlottesville, 159 F.3d 843, 849 (4th Cir. 1998) (deferring to the state's regulatory scheme despite a lack of empirical evidence).
152. Vance v. Bradley, 440 U.S. 93, 111 (1979).
153. See, e.g., Bykofsky v. Borough of Middletown, 401 F. Supp. 1242, 1265 (M.D. Pa. 1975). In one of the more unusual applications of rational basis review, the district court in Johnson v. City of Opelousas dismissed an equal protection challenge by stating that, "[s]ince the ordinance applies alike to all persons under the age of seventeen, there is clearly no equal protection violation with the class subject to the curfew." 488 F. Supp. 433, 440 (W.D. La. 1980), rev'd, 658 F.2d 1065 (5th Cir. Unit A Oct. 13, 1981). This was a strange conclusion given that the plaintiffs presumably were challenging the classifications that distinguished people under 17 from those over 17. Cf. Qutb v. Strauss, 11 F.3d 488, 492 (5th Cir. 1993) ("[I]t is clear that the curfew ordinance distinguishes between classes of individuals on the basis [of] age, treating those persons under the age of seventeen differently from those persons age seventeen and older."). At least one commentator doubts that a curfew ordinance could survive even rational basis review. See Trollinger, supra note 56, at 1001. Professor Trollinger contends that only law-abiding citizens will adhere to a curfew. Therefore, the classifications relevant to curfew laws distinguish between law-abiding youths and law-abiding adults. Professor Trollinger argues that these classifications are irrational. See id.
154. See Bykofsky, 401 F. Supp. at 1255-56.
155. See id.
156. Justice Harlan suggested that litigants could resort to a substantive due process claim when a fundamental right is implicated, but they should not bring their claim under the Equal Protection Clause. See Shapiro v. Thompson, 394 U.S. 618, 659-62 (1969) (Harlan, J., dissenting). However, certain rights, such as voting, have been deemed "fundamental," only with respect to an equal protection analysis. See, e.g., Reynolds v. Sims, 377 U.S. 533, 571 (1964) (requiring "one man, one vote" apportionment).
157. See supra notes 134-38 and accompanying text (discussing the scope of the Equal Protection Clause).
158. See, e.g., Reno v. Flores, 507 U.S. 292, 301-02 (1993) (defining a substantive due process right as one arising under either the Fifth or Fourteenth Amendment, "which forbids the government to infringe certain 'fundamental' liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest").
159. See Shelton v. Tucker, 364 U.S. 479, 488 (1960).
160. Bykofsky, 401 F. Supp. at 1254.
161. See, e.g., Papachristou v. City of Jacksonville, 405 U.S. 156, 164 (1972) (holding that a vagrancy ordinance was unconstitutionally vague and hinting that the right of locomotion may be fundamental); Aptheker v. Secretary of State, 378 U.S. 500, 520 (1964) (Douglas, J., concurring) (stating that when movement is curtailed, "all other rights suffer . . . as when curfew or home detention is placed on a person"); Kent v. Dulles, 357 U.S. 116, 126 (1958) (determining that free movement is "basic in our scheme of values"); United States v. Wheeler, 254 U.S. 281, 293 (1920) (arguing that U.S. citizens have historically possessed a fundamental right "to move at will from place to place"). Plaintiffs may assert infringement of other fundamental rights such as speech, association, and assembly. However, this Article will limit its discussion to the freedom of movement. For an excellent discussion of many possible infringements of minors' rights in the curfew context, see Trollinger, supra note 56, at 975-87.
162. See, e.g., Waters v. Barry, 711 F. Supp. 1125, 1134 (D.D.C. 1989) (holding that the freedom of movement is rooted in the fundamental liberty interests protected under substantive due process); City of Maquoketa v. Russell, 484 N.W.2d 179, 183 (Iowa 1992) ("Whenever the First Amendment rights of freedom of religion, speech, assembly, and association require one to move about, such movement must necessarily be protected under the First Amendment.").
163. Bykofsky v. Borough of Middletown, 429 U.S. 964, 964 (1979) (Marshall, J., dissenting) (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)).
164. Waters, 711 F. Supp. at 1134. 159 Bykofsky, 429 U.S. at 964 (Marshall, J., dissenting).
165. See, e.g., Bykofsky v. Borough of Middletown, 401 F. Supp. 1242, 1256 (M.D. Pa. 1975) ("The interest of minors in being abroad during the nighttime hours . . . is not nearly so important to the social, economic, and healthful well-being of the community as the free movement of adults."); see also Schleifer v. City of Charlottesville, 159 F.3d 843, 846 (4th Cir. 1998) ("'[U]nemancipated minors lack some of the most fundamental rights of self-determination - including even the right of liberty in its narrowest sense, i.e. the right to come and go at will.'") (quoting Veronica Sch. Dist. 47J v. Acton, 515 U.S. 646, 654 (1995)); Hutchins v. District of Columbia, 144 F.3d 798, 828 (D.C. Cir. 1996) (Silberman, J., dissenting) (rejecting a fundamental right to freedom of movement and defining the right at stake as "the right of minors to be unaccompanied on the streets at night"), vacated and reh'g en banc granted, 156 F.3d 1267 (D.C. Cir. 1998). But see Waters, 711 F. Supp. at 1134 (holding that the freedom of movement is a fundamental right under the First and Fifth Amendments). It is interesting to note that in its denial of a minor's fundamental right to free movement, the Bykofsky court rested its judgment on the quasi-utilitarian argument that the community's "social, economic, and healthful" benefits resulting from the curfew, were the appropriate measure for determining the status of the right. See Bykofsky, 401 F. Supp. at 1256. The court's refusal to extend the fundamental right to minors is especially curious in light of its conclusion that, "[o]ne may be on the streets even though he is there merely for exercise, recreation, walking, standing, talking, socializing, or any other purpose that does not interfere with other persons' rights." Id. at 1254. The Veronica decision is also distinguishable. When, as in Veronica, the State regulates children within the educational context, it is acting in loco parentis; the parents have delegated a portion of their authority to the school by placing their children under its instruction. See Veronica, 515 U.S. at 655. When the State enacts a nocturnal curfew, however, it is limiting minors' right to "come and go at will." The parental interest in this context is much stronger and it is not clear that the parents have delegated any of their authority to the State. Thus, the State cannot exercise broad authority unless it demonstrates that the parents have failed to supervise their children or have otherwise conceded their authority to the State. See infra notes 185-88 and accompanying text.
166. See, e.g., In re J.M., 768 P.2d 219, 223-24 (Colo. 1989); City of Panora v. Simmons, 445 N.W.2d 363, 369 (Iowa 1989).
167. See supra notes 95-98 and accompanying text (discussing Bellotti II and the "compelling for children" standard").
168. See supra notes 81, 95-108 and accompanying text (identifying the Bellotti II factors and discussing how courts should apply these factors to evaluate laws that intrude upon minors' rights).
169. Refusal to extend fundamental status to minors' freedom of movement may reflect the courts' differing levels of abstraction in defining constitutional rights. See Hutchins, 144 F.3d at 828 (Silberman, J., dissenting) ("[D]escrib[ing] the right at stake as 'the fundamental right to free movement' . . . puts it at too high a level of generality."). Identifying constitutional rights at the appropriate level of generality is a complex task that has plagued constitutional scholarship and continues to inspire heated debate. Compare Lawrence Tribe & Michael Dorf, Judicial Value Choice in the Definition of Rights, in ON READING THE CONSTITUTION, 73-80 (1991) (exploring the level of generality that would appropriately describe a previously protected constitutional right and a currently claimed right), and Frank Easterbrook, Abstraction and Authority, U. CHI. L. REV. 349, 351 (1992) (attempting to develop a theory of abstraction "adequate to both the power-granting and the power-limiting" clauses of the Constitution), with Michael H. v. Gerald D., 491 U.S. 110, 127-28 n.6 (1989) (Scalia, J.) (asserting that the proper level of generality is determined by "refer[ing] to the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified"). Although Judge Silberman's dissent in Hutchins may have correctly criticized the general "freedom of movement" as too broad a description of the right at issue, it is also possible that his description - "the right of minors to be unaccompanied on the streets at night" - swings the pendulum too far in the opposite direction. See Hutchins, 144 F.3d at 828 (Silberman, J., dissenting). There is no principled reason for defining the right at stake with this degree of specificity. One could just as easily describe the contours of the right more broadly as "the freedom to travel on public streets," or more narrowly as "the right of minors to be unaccompanied on the streets at night to travel to evening church services with their parents' permission." It is conceivable that both of these "rights" would also deserve constitutional protection.
170. Refusal to extend fundamental status to minors' freedom of movement may reflect the courts' differing levels of abstraction in defining constitutional rights. See Hutchins, 144 F.3d at 828 (Silberman, J., dissenting) ("[D]escrib[ing] the right at stake as 'the fundamental right to free movement' . . . puts it at too high a level of generality."). Identifying constitutional rights at the appropriate level of generality is a complex task that has plagued constitutional scholarship and continues to inspire heated debate. Compare Lawrence Tribe & Michael Dorf, Judicial Value Choice in the Definition of Rights, in ON READING THE CONSTITUTION, 73-80 (1991) (exploring the level of generality that would appropriately describe a previously protected constitutional right and a currently claimed right), and Frank Easterbrook, Abstraction and Authority, U. CHI. L. REV. 349, 351 (1992) (attempting to develop a theory of abstraction "adequate to both the power-granting and the power-limiting" clauses of the Constitution), with Michael H. v. Gerald D., 491 U.S. 110, 127-28 n.6 (1989) (Scalia, J.) (asserting that the proper level of generality is determined by "refer[ing] to the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified"). Although Judge Silberman's dissent in Hutchins may have correctly criticized the general "freedom of movement" as too broad a description of the right at issue, it is also possible that his description - "the right of minors to be unaccompanied on the streets at night" - swings the pendulum too far in the opposite direction. See Hutchins, 144 F.3d at 828 (Silberman, J., dissenting). There is no principled reason for defining the right at stake with this degree of specificity. One could just as easily describe the contours of the right more broadly as "the freedom to travel on public streets," or more narrowly as "the right of minors to be unaccompanied on the streets at night to travel to evening church services with their parents' permission." It is conceivable that both of these "rights" would also deserve constitutional protection.
171. See Qutb v. Strauss, 11 F.3d 488, 492 & n.6 (5th Cir. 1993) (applying strict scrutiny to a juvenile curfew ordinance).
172. See, e.g., Washington v. Gluckberg, 521 U.S. 702, 756 (1997) (Souter, J., concurring) (citing Poe v. Ullman, 367 U.S. 497, 548 (1961) (Harlan, J., dissenting)) (refusing to allow the State to rest on threshold rationality); Qutb v. Strauss, 11 F.3d 488, 492 (5th Cir. 1993) (denying the State a presumption of constitutionality in a juvenile curfew case).
173. See, e.g., Johnson v. City of Opelousas, 658 F.2d 1065, 1072-73 (5th Cir. Unit A Oct. 1981) (recognizing that the State may place restrictions on minors that it could not impose on adults if those restrictions serve an important state interest and that interest relates uniquely to minors).
174. See, e.g., Qutb v. Strauss, 11 F.3d 488, 495 (5th Cir. 1993) (identifying the prevention of juvenile crime as a compelling state interest); McCollester II, 586 F. Supp. 1381, 1385 (D.N.H. 1984) (noting that the "State has a valid interest in controlling crime"); City of Milwaukee v. K.F., 426 N.W.2d 329, 339 (Wis. 1988) ("[P]rotecting youths and curtailing juvenile crime is compelling."). In Waters v. Barry, 711 F. Supp. 1125 (D.D.C. 1989), the court offered a more ambiguous assessment of the city's interests. The court found that, under a substantive due process analysis, juvenile crime was not a sufficient reason to distinguish minor's rights from those of adults. See id. at 1137. However, under an equal protection analysis, the court held that the city was "undeniably motivated by a compelling government interest in adopting the Act." Id. at 1139. Nevertheless, the court concluded that the Act was unconstitutional because it was not narrowly tailored to its objective of protecting juveniles from the "evils of the street." Id.
175. 321 U.S. 158, 169 (1944) (upholding a statute that restricted minor's freedom to distribute leterature on public streets).
176. McCollester I, 514 F. Supp. 1046, 1050 (D.N.H. 1981).
177. See Bellotti II, 443 U.S. 622, 634 (1979) (identifying the first factor in the Bellotti II framework as "the peculiar vulnerability of children").
178. Waters, 711 F. Supp. at 1137.
179. Papachristou v. Jacksonville, 405 U.S. 156, 171 (1972). Justice Marshall expressed a similar opinion in the context of the government's "War on Drugs": The issue in this case is not whether declaring a war on illegal drugs is good public policy . . . [but] whether the Government's deployment in that war of a particularly Draconian weapon . . . comports with [the Constitution]. Precisely because the need for action against the drug scourge is manifest, the need for vigilance against unconstitutional excess is great. History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 635-36 (1989) (Marshall, J., dissenting).
180. Bellotti II, 443 U.S. at 633.
181. Some courts have suggested that juvenile curfews are no more intrusive than measures imposing age restrictions on drinking alcoholic beverages, or operating motor vehicles. See, e.g., Schleifer v. City of Charlottesville, 159 F.3d 843, 855 (4th Cir. 1998). This syllogism relies on a faulty premise: unlike the freedom of movement or the right to "loiter and loaf," drinking alcohol or driving a car is a privilege that states are free to regulate. See, e.g., Gabree v. King, 614 F.2d 1, 1 (1st Cir. 1980) (drinking alcoholic beverages is not a fundamental right); Sharon v. Larson, 650 F. Supp. 1396, 1404 (E.D. Pa. 1986) (driving is not a fundamental right).
182. Bellotti II, 443 U.S. at 635.
183. See Waters, 711 F. Supp. at 1137 ("[T]he decision to either stay inside or roam at night simply does not present the type of profound decision which Bellotti would leave to the state.").
184. See id.
185. See id. at 1139 (noting that half of juvenile murders in Washington, D.C. occurred in the juvenile's home); see also NATIONAL REPORT, supra note 17, at 22 (finding that about one fourth of all violent juvenile victimizations occur in the home).
186. Assessing the Scope, supra note 95, at 1176-77 (quoting Ginsberg v. New York, 390 U.S. 629, 649 (1968) (Stewart, J., concurring).
187. Bellotti II, 443 U.S. at 634.
188. See supra text accompanying notes 113-29 (discussing the relationship between the parental role and a minor's rights).
189. See, e.g., Johnson v. City of Opelousas, 658 F.2d 1065, 1074 (5th Cir. Unit A Oct. 1981) (finding that the city's curfew law interfered with the parental role because it prohibited juveniles from engaging in certain actvities that would otherwise have been subject to the parent's discretion).
190. See, e.g., In re J.M. 768 P.2d 219, 223 (Colo. 1989) (holding that curfews reinforce the parental role by encouraging parents to supervise their children).
191. See Hutchins v. District of Columbia, 942 F. Supp. 665, 674 (D.D.C. 1996) (applying strict scrutiny to a curfew law because it infringed parents' rights to raise their children), aff'd, 144 F.3d 798 (D.C. Cir. 1998), vacated and reh'g en banc granted, 156 F.3d 1267 (D.C. Cir. 1998); McCollester II, 586 F. Supp. 1381, 1386 (D.N.H. 1984) (finding that a curfew law unduly interfered with the parental role in child rearing and violated parents' rights, including their right to privacy).
192. See, e.g., Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925) ("The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.").
193. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 234-35 (1972) (sustaining parents' rights to raise their children according to their religious beliefs); Ginsburg v. New York, 390 U.S. 629, 639 (1968) ("'It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.'") (quoting Prince v. Massachusetts, 321 U.S. 150, 166 (1944)); Meyer v. Nebraska, 262 U.S. 390, 403 (1923) (invalidating a statute that prohibited teaching foreign languages because it interfered with the parents' rights to direct their children's upbringing).
194. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 234-35 (1972) (sustaining parents' rights to raise their children according to their religious beliefs); Ginsburg v. New York, 390 U.S. 629, 639 (1968) ("'It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.'") (quoting Prince v. Massachusetts, 321 U.S. 150, 166 (1944)); Meyer v. Nebraska, 262 U.S. 390, 403 (1923) (invalidating a statute that prohibited teaching foreign languages because it interfered with the parents' rights to direct their children's upbringing).
195. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 234-35 (1972) (sustaining parents' rights to raise their children according to their religious beliefs); Ginsburg v. New York, 390 U.S. 629, 639 (1968) ("'It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.'") (quoting Prince v. Massachusetts, 321 U.S. 150, 166 (1944)); Meyer v. Nebraska, 262 U.S. 390, 403 (1923) (invalidating a statute that prohibited teaching foreign languages because it interfered with the parents' rights to direct their children's upbringing).
196. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 234-35 (1972) (sustaining parents' rights to raise their children according to their religious beliefs); Ginsburg v. New York, 390 U.S. 629, 639 (1968) ("'It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.'") (quoting Prince v. Massachusetts, 321 U.S. 150, 166 (1944)); Meyer v. Nebraska, 262 U.S. 390, 403 (1923) (invalidating a statute that prohibited teaching foreign languages because it interfered with the parents' rights to direct their children's upbringing).
197. Hutchins, 942 F. Supp. at 674; accord McCollester I, 514 F. Supp. 1046, 1051 (D.N.H. 1981) (further stating that the curfew ordinance is "an intrusion to family autonomy and . . . a possible threat to family serenity and integrity").
198. McCollester I, 514 F. Supp. at 1051; accord Schleifer v. City of Charlottesville, 159 F.3d 843, 867 (4th Cir. 1998) (dissenting opinion) ("[P]arents are better able to assess their children's maturity and capacity for judgment than a city council.").
199. Bellotti II, 443 U.S. 622, 639 (1979) (quoting Ginsberg v. New York, 390 U.S. 628, 639 (1968)).
200. Bellotti II, 443 U.S. 622, 639 (1979) (quoting Ginsberg v. New York, 390 U.S. 628, 639 (1968)).
201. See Bykofsky v. Borough of Middletown, 401 F. Supp. 1242, 1256 (M.D. Pa. 1975); In re Maricopa County, 887 P.2d 599, 607-09 (Ariz. 1994). But see City of Panora v. Simmons, 445 N.W.2d 363, 373 (Iowa 1989) (dissenting opinion) (arguing that the curfew law could not serve the city's objective because the city failed to prove a total breakdown in parental supervision).
202. In re J.M., 768 P.2d 219, 223 (Colo. 1989).
203. See, e.g., Qutb v. Strauss, 11 F.3d 488, 495-96 (5th Cir. 1993) (holding that the curfew at issue only minimally intruded into the sphere of parental rights); City of Panora v. Simmons, 445 N.W.2d 363, 370 (Iowa 1989) (stating that the city's curfew law only minimally interfered with parents' authority over their children).
204. See Qutb, 11 F.3d at 495-96 (noting the broad exemptions included in the Dallas curfew ordinance that circumscribe the law's interference with the realm of parental authority).
205. City of Panora, 445 N.W.2d at 370.
206. See Johnson v. City of Opelousas, 658 F.2d 1065, 1073-74 (5th Cir. Unit A Oct. 1981) (stating that a curfew ordinance inhibits parents from exercising their full authority in raising their children). But see Bykofsky, 401 F. Supp. at 1247-48 (holding that a curfew ordinance's provision for punishing parents for minor's violations does not impermissibly "encroach . . . on the constitutional right of parents").
207. See McCollester II, 586 F. Supp. 1381, 1386 (D.N.H. 1984) (determining that the "ordinance neither aids in the discharge of parental supervision duties nor qualifies as a justified usurpation of the parental role in a situation where parental control cannot otherwise be provided"); cf. Bykofsky, 401 F. Supp. at 1262 ("When actions concerning the child have a relation to the public welfare or the well-being of the child, the state may act to promote these legitimate interests."). For a detailed discussion of the constellation of relationships between parent, child, and State, within which the State can assume the parental role, see Chen, supra note 6, at 159-74.
208. See Bellotti II, 443 U.S. at 634.
209. See id. at 649 (preserving a pregnant minor's right to a judicial determination of maturity if her parents refuse to give their consent so that she may obtain an abortion).
210. The court in Hutchins v. District of Columbia concluded: While some parents in the District undoubtedly have abrogated their parental responsibilities, this Court does not have before it any record evidence that most parents in the District are unable to control or protect their children. Thus, this Court would be remiss in putting its imprimatur on a law that impacts significantly on thousands of law-abiding citizens based upon a mere assumption that a majority of the District's parents require the city government to second guess their parenting decisions. 942 F. Supp. 665, 673-74 (D.D.C. 1996), aff'd, 144 F.3d 798 (D.C. Cir. 1998), vacated and reh'g en banc granted, 156 F.3d 1267 (D.C. Cir. 1998) (emphasis added); see also Chen, supra note 6, at 172-73 (arguing that state action interfering with parents' rights should be evaluated under a higher standard of review).
211. See, e.g., City of Richmond v. J.A. Croson, Co., 488 U.S. 469, 492 (1989) (asserting that the narrowly tailored requirement ensures the means chosen so closely fit the compelling interest that there is "little or no possibility" that the motive behind the classification was illegitimate); Waters v. Barry, 711 F. Supp. 1125, 1139 (D.D.C. 1989) (noting that restrictions must "bear an intimate relationship to the problem"). The Waters court invalidated the curfew law, finding that the regulation subjected the city's juveniles to virtual house arrest "without differentiating among those juveniles likely to embroil themselves in mischief, or among those activities most likely to produce harm." Id. at 1134.
212. Shelton v. Tucker, 364 U.S. 479, 488 (1960).
213. Waters, 711 F. Supp. at 1134.
214. 11 F.3d 488 (5th Cir. 1993).
215. See id. at 492.
216. See id. at 492-93 (finding that the city "provided sufficient data to demonstrate that the classification fits the State's compelling interest").
217. See id. at 492 n.6 (citing the Bellotti II factors, but explaining that the plaintiff's concession that the State's interest was compelling made it "unnecessary to conduct a full Bellotti analysis").
218. See Chen, supra note 6, at 154 (arguing that the Dallas curfew was not closely related to reducing youth crime given evidence brought by the State showing that juveniles accounted for only 6% of all crime in the city, and that only 12% of the arrests occurred during curfew hours); see also Waters, 711 F. Supp. at 1139 (noting crime statistics that show danger is just as great during the day as at night). But cf. Craig M. Johnson, It's Ten O'Clock: Do You Know Where Your Children Are? Qutb v. Strauss and the Constitutionality of Juvenile Curfews, 69 ST. JOHN'S L. REV. 327, 355-56 (1995) (arguing that Qutb was correctly decided in light of the State's extensive data and the prevailing constitutional principles). Johnson also justifies juvenile curfew laws under a "best interest of the child" argument. For example, he claims that a curfew is necessary to ensure that children get sufficient sleep to be alert and productive in school. See id. at 350 n.91. The period immediately following school until about 6:00 p.m seems the most sensible time to regulate children's movement and activities. Although school days account for only half a year, more than half of all violent crime affecting juveniles occurs during the school year. See UPDATE, supra note 25, at 26. Approximately one in five juvenile violent crimes occurs between 2:00 p.m. and 6:00 p.m. See id. Juvenile victimization follows similar trends, peaking at around 3:00 p.m. See NATIONAL REPORT, supra note 17, at 30, 48.
219. Shelton v. Tucker, 364 U.S. 479, 488 (1960).
220. Waters, 711 F. Supp. at 1139. But see Johnson, supra note 208, at 355 (arguing the Waters Court failed to recognize that a curfew enables the police to identity and question juvenile offenders before they have to opportunity to commit crimes).
221. This is the crux of the constitutional challenge based on overbreadth. The overbreadth doctrine applies when the law "does not aim specifically at evils within the allowable area of [governmental] control but . . . sweeps within its ambit other activities that in ordinary circumstances constitute an exercise" of protected First Amendment rights. Thornhill v. Alabama, 310 U.S. 88, 97 (1940). Some courts have invalidated juvenile curfews based on the juvenile defendants' challenges that the ordinances were overbroad in violation of the First Amendment. See, e.g., Johnson v. City of Opelousas, 658 F.2d 1065, 1071 (5th Cir. Unit A Oct. 1981) ("A review of the Opelousas juvenile curfew ordinance and pertinent legal authority convinces us that the curfew ordinance is constitutionally infirm in its breadth."); McCollester II, 586 F. Supp. 1381, 1385 (D.N.H. 1984) (finding the curfew invalid due to its overbreadth); Ruff v. Marshall, 438 F. Supp. 303, 305-06 (M.D. Ga. 1977) (reciting overbreadth reasons for the invalidity of the curfew ordinance); Allen v. City of Bordentown, 524 A.2d 478, 482-84 (N.J. Super. Ct. Law Div. 1987). Juveniles arrested for violating a curfew ordinance could bring an overbreadth challenge, claiming that enforcement of the overly broad legislation chills their First Amendment rights to expressive association, and the rights of all other juveniles who have not been charged. However, due to the jus tertii, or third party nature, of such a challenge, the Supreme Court has held it is unnecessary to employ an overbreadth analysis because "the parties challenging the statute are those who desire to engage in protected [activity] that the overbroad statute purports to punish." Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 502 (1985). Thus, juvenile plaintiffs claiming protected activity under the First Amendment would more properly argue for facial invalidation rather than overbreadth. See Waters, 711 F. Supp. at 1133-34 (opining that juvenile curfew decisions employing an overbreadth analysis are "to some extent flawed").
222. See Waters, 711 F. Supp. at 1134. The Waters Court also noted that any crime de-terred by curfew laws was already illegal and carried sanctions "more painful than home detention." Id. at 1139. Thus, juveniles who are not deterred by serious criminal sanctions will be even less concerned with the consequences of violating a curfew law.
223. See Shepherd, supra note 61, at 43; see also Schleifer v. City of Charlottesville, 159 F.3d 843, 866 (4th Cir. 1998) (dissenting opinion) ("The ordinance treats all minors the same even though an exceedingly small percentage commit crimes); Hutchins v. District of Columbia, 942 F. Supp. 665, 680 (D.D.C. 1996) (striking down ordinance on due process grounds for impermissibly burdening "liberty interests of thousands of law-abiding minors"), aff'd, 144 F.3d 798 (D.C. Cir. 1998), vacated and reh'g en banc granted, 156 F.3d 1267 (D.C. Cir 1998).
224. See, e.g., Waters v. Barry, 711 F. Supp. 1125, 1137 (D.D.C. 1989) (explaining that juvenile curfews restrict activities that are protectable under the First Amendment); McCollester II, 586 F. Supp. 1381, 1386 (D.N.H. 1984) (noting that juvenile curfews encompass many constitutionally protected liberties); Allen v. Bordentown, 524 A.2d 478 (N.J. Super. Ct. Law Div. 1987); see also Ex Parte McCarver, 46 S.W. 936, 937 (Tex. Crim. App. 1898) (stating that, although "there are some bad boys in our cities and towns . . . [it does not] therefore follow that it is a legitimate function of government to restrain them and keep them off the streets when they are committing no offense").
225. McCollester II, 586 F. Supp. at 1385.
226. See Aptheker v. Secretary of State, 378 U.S. 500, 508 (1964) (stating that the State's objectives "'cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved'") (quoting Shelton v. Tucker, 364 U.S. 479, 488 (1960)).
227. See Aptheker v. Secretary of State, 378 U.S. 500, 508 (1964) (stating that the State's objectives "'cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved'") (quoting Shelton v. Tucker, 364 U.S. 479, 488 (1960)).
228. For example, the New Orleans curfew allows defenses for minors who are accompanied by an adult, on a reasonable errand, in a motor vehicle in interstate travel, engaged in employment, involved in an emergency, in front of their own or their neighbor's house, attending school or religious activities, or exercising First Amendment rights. See NEW ORLEANS, LA. CITY CODE § 1(c)(1), at app. The First Amendment exception could be challenged on vagueness grounds because it is not clear what conduct is permitted under the exception. See supra note 61. In fact, the New Orleans statutory exceptions are so broadly defined the city might as well have said the curfew proscribes everything except constitutionally protected conduct, a construction that would surely be held unconstitutionally vague. See TRIBE, supra note 94, § 12-29, at 1031.
229. See Qutb v. Strauss, 11 F.3d 488, 493-94 (5th Cir. 1993) (asserting that the court must consider all defenses, or exceptions, within the curfew law to fairly evaluate its constitutionality).
230. Waters, 711 F. Supp. at 1136.
231. See Hutchins v. District of Columbia, 144 F.3d 798, 809 (D.C. Cir. 1998) (contending that to require scientific certainty of a curfew's effectiveness would unduly hinder the government's ability to protect juveniles from harm), vacated and reh'g en banc granted, 156 F.3d 1267 (D.C. Cir. 1998); Qutb v. Strauss, 11 F.3d 488, 493 n.7 (5th Cir. 1993) (stating that the court does not require scientifically certain proof that a curfew will in fact curb juvenile crime).
232. Contrary to the opinion of some curfew proponents, applying strict scrutiny to curfew ordinances would not stymie the State's efforts to protect juveniles. Strict scrutiny merely requires that officials identify and promulgate the least restrictive means to accomplish their goals. See Hutchins, 144 F.3d at 826 (Tatel, J., concurring). As Part III demonstrates, it is not clear that curfews are effective. Thus, lawmakers should consider promoting alternative means for safeguarding juvenile and community welfare, such as the plan at work in Boston, Massachusetts.
233. SENECA, TROADES act 2.
234. See Bykofsky v. Borough of Middletown, 401 F. Supp. 1242, 1256 (M.D. Pa. 1975) (suggesting that evidence of effectiveness will help sustain a curfew's constitutionality); People v. Chambers, 360 N.E.2d 55, 59 (Ill. 1976) (noting that mere "police convenience" is not a valid justification for restrictions on people's liberty).
235. Some curfew laws include provisions that require the legislature to periodically evaluate the law's effectiveness. See, e.g., D.C. CODE ANN. § 6-2183 (e)(1) (1998) ("The Mayor shall report to the Council [within ninety days] on the curfew's effectiveness and shall recommend that the curfew either be continued or discontinued."); TEX. LOC. GOV'T CODE ANN. § 370.002 (West 1998) (requiring general-law and home-rule municipalities to review juvenile curfews every three years and to abolish, modify, or continue the curfew in accordance with its effectiveness and its continued need to remedy problems in the community).
236. See NEW ORLEANS, LA. CITY CODE § 1(c)(1), at app.; see also supra note 217 (listing the curfew's exceptions). It is also interesting to note that the curfew's debut on June 1, 1994 was one day after the Supreme Court denied a petition for certiorari to review the Dallas curfew ordinance at issue in Qutb. See Qutb v. Strauss, 511 U.S. 1127 (1994).
237. See NEW ORLEANS, LA. CITY CODE § 1(b)(1), at app. (describing the curfew's parameters).
238. President William J. Clinton, Speech Before the International Women's Convention of the Church of God in Christ in New Orleans (May 30, 1996) (transcript available at 〈http://www.pbs.org/newshour/bb/election/may96/clinton_youth_5-31.html. 〉).
239. See Ann Scales, Clinton Offers Crime Plan: Cites Boston Effort in Push for $500m in Youth Programs, BOSTON GLOBE, Feb. 20, 1997, at A1. Why did the President revise his endorsement? This is more than a cynical question regarding presidential politics. Indeed, some pollsters considered Louisiana a "swing state" in the 1996 presidential election. See Rhonda Nabonne & Jack Wardlaw, President Praises Curfew as Crime-Fighting Model, NEW ORLEANS TIMES-PICAYUNE, May 31, 1996, at A1. Senator Bob Dole, Clinton's opponent in that election, alleged that the President had simply "taken a poll" to determine the popular stance, and then endorsed the New Orleans curfew. See id.
240. See Ann Scales, Clinton Offers Crime Plan: Cites Boston Effort in Push for $500m in Youth Programs, BOSTON GLOBE, Feb. 20, 1997, at A1. Why did the President revise his endorsement? This is more than a cynical question regarding presidential politics. Indeed, some pollsters considered Louisiana a "swing state" in the 1996 presidential election. See Rhonda Nabonne & Jack Wardlaw, President Praises Curfew as Crime-Fighting Model, NEW ORLEANS TIMES-PICAYUNE, May 31, 1996, at A1. Senator Bob Dole, Clinton's opponent in that election, alleged that the President had simply "taken a poll" to determine the popular stance, and then endorsed the New Orleans curfew. See id.
241. John Gibeaut, Who's Raising the Kids, 83 A.B.A. J. 62, 64 (1997) (citing a 1994 Gallup poll demonstrating that adults believe juveniles commit crimes at a rate nearly three times the actual number reported by the FBI); accord Schwartz, supra note 43 at 224 ("Juvenile justice policy is usually made in an emotionally charged atmosphere. Debates are often devoid of data and hard facts needed in making sound decisions."). In light of these commentators' observations, perhaps the President's about-face was inspired by a realization that a curfew is often a superficial response that the public can rally around; however, a curfew is not a panacea, and only a more comprehensive intervention effort, like the Boston plan, can transform the landscape of juvenile violence. See infra Part III.B.
242. Telephone Interview with Peggy Wilson, supra note 23.
243. James Gill, ACLU's Drive to Scrap City's Curfew, NEW ORLEANS TIMES-PICAYUNE, Sept. 16, 1994, at B7.
244. See UPDATE, supra note 25, at 4 (reporting victimization rates for juveniles between the ages of 12 and 17).
245. See NATIONAL REPORT, supra note 17, at 20.
246. See UPDATE, supra note 25, at 4.
247. See id. at 18.
248. See id. at 17 (stating that out of 885,100 juvenile crime arrests in 1995, 147, 700 were for violent crimes).
249. See id. at 18-19.
250. Id. at 24.
251. See Kenneth M. Reynolds, The Impact of Juvenile Curfews on Crime Prevention 47 (1997) (unpublished Ph.D. dissertation, University of New Orleans), microformed on UMI Microform 9807504 (Univ. Microforms Int'l).
252. Analogous statistics for Boston are not available. However, Boston has had only 14 firearm homicides of children age 16 and younger since 1990. See BOSTON POLICE DEP'T & PARTNERS, THE BOSTON STRATEGY TO PREVENT YOUTH VIOLENCE, CRIME STATISTICS tbl. 1 (amended 1998) [hereinafter CRIME STATISTICS]. Between 1991 and 1995, Suffolk County, which includes Boston, reported 58 juvenile arrests for murder. See Howard N. Snyder & Rowen S. Poole, Office of Juvenile Justice and Deliquency Prevention, U.S. Dep't of Justice, Easy Access to FBI Arrest Statistics 1991-1995 (1997) 〈http://www.ncjrs.org/ojjdp/html/ezaccess.html#UCR〉 [hereinafter Easy Access] (reporting FBI Uniform Crime Reports statistics for Suffolk County, Massachusetts).
253. See Easy Access, supra note 240 (reporting FBI Uniform Crime Reports statistics for Orleans Parish, Louisiana).
254. See id. (showing that adults, 18 and over, were arrested at a rate of 1685 per 100,000 people while juveniles were arrested at a rate of 2941 per 100,000).
255. See id. (finding that juveniles accounted for 22% of all index crime arrests). Juveniles also accounted for 19% of violent crime arrests, and 23% of arrests for property crimes. See id.
256. See id. (reporting that adults were arrested at a rate of 522 per 100,000 while the juvenile rate was 772 per 100,000).
257. See id. (stating that the national rate for juvenile violent crime arrests was 484 per 100,000 in 1993 compared to 772 per 100,000 in New Orleans).
258. See SOURCEBOOK, supra note 9, at 402 tbl.4.23 (reporting the percentages of violent crime shown by juvenile arrests from 1972 [13.2%] to 1995 [14.1%]).
259. See id. (finding the percentage of property crimes cleared by juvenile arrests peaked at 36.3% in 1974, dropping to 25% in 1995). Total crime attributed to juveniles reached 31.3% in 1974, declining to 22.1% in 1995. See id.
260. See Easy Access, supra note 240 (displaying crime statistics for many cities and for the nation overall).
261. Howard N. Snyder, National Center for Juvenile Justice, Are Juveniles Driving the Violent Crime Trend, Fact Sheet #16 (1994) 〈http://www.ncjrs.org/txtfiles/fs-9416.txt〉 (finding that adults were responsible for 81% of the rise in crime from 1983 to 1992). Researchers have found that juveniles commit proportionally fewer crimes than adults. See JAY S. ALBANESE, DEALING WITH DELINQUENCY: THE FUTURE OF JUVENILE JUSTICE 22, 23 (2d ed. 1993). Furthermore, data do not support the conclusion that juvenile offenders are more violent. See id. Nonetheless, commentators are concerned that youths are increasingly involved with drugs and weapons, and that this rise in certain types of violent offenses will translate into a rise in adult criminal behavior in the future. See id. at 33-35. Thus, curbing juvenile offenses will decrease the overall crime rate and may prevent vulnerable juveniles from persisting in their criminal behavior as adults.
262. See Reynolds, supra note 239, at 48 tbl.3.1 (extrapolating U.S. Census data).
263. See id. at 97 (discussing data from the FBI's Uniform Crime Reports for 1994). Index crimes are serious violent crimes and high dollar thefts. See id. at 97 n.3.
264. Id. at 97.
265. See NATIONAL REPORT, supra note 17, at 51 (stating that out of all juveniles in the U.S., ages 10-17, only 5% were arrested in 1992 and, of those, only about 9% were arrested for violent crimes).
266. Professor Reynolds notes that arrests for property offenses peak at around 16 years of age, and violent offenses at around 18. Thus, a large proportion of arrests for all crimes, but especially for violent crimes, will be arrests of individuals who are not restricted by the curfew which targets youths who are 16 and under. See Reynolds, supra note 239, at 97-98. Other cities reporting that their youth curfews are not effectively reducing crime have noted that the most serious crimes are committed by persons over the age of 17. See U.S. CONFERENCE OF MAYORS REPORT, supra note 18, at 4.
267. Nationwide, juveniles account for nearly 30% of all arrests. See Easy Access, supra note 240. Within the juvenile population, however, only 5% of the nation's youth have arrest records. See NATIONAL REPORT, supra note 17, at 51. Juveniles account for 22% of all arrests in New Orleans. See Easy Access, supra note 240. This figure comports with the national average. The actual number of juvenile arrestees in New Orleans, annually, is approximately 20% of the city's total juvenile population. See NATIONAL REPORT, supra note 17, at 51. This staggering figure is almost four times the national average.
268. See Reynolds, supra note 239, at 50 tbl.3.3 (reporting juvenile arrests in New Orleans by age, race, and sex for the year 1996).
269. In 1992 and 1993, estimates show that juveniles accounted for 22% of all index crime arrests. See Easy Access, supra note 240.
270. See Reynolds, supra note 239, at 46.
271. Craig v. Boren, 429 U.S. 190, 199-200 (1976) (recognizing the State's traditional role in promoting the general health and welfare of its citizens).
272. Id. at 204.
273. See id. at 202 (holding that drinking laws which discriminate on the basis of gender are unconstitutional because they violate the Equal Protection Clause). Just as the Craig Court found that gender did not serve as a "legitimate, accurate proxy for the regulation of drinking and driving." age may not represent a legitimate proxy for regulating crime and victimization. See id. at 204. In 1992, less than .5% of juveniles were arrested for a violent offense, and only 5% were arrested for any type of offense. See NATIONAL REPORT, supra note 17, at 51.
274. Craig, 429 U.S. at 199.
275. In 1995, African-Americans accounted for 12.6% of the population in the United States. However, African-Americans were arrested for 35.7% of all serious crimes. See U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 14, 209 tbls. 13 & 328 (1997) [hereinafter STATISTICAL ABSTRACT]. The reader should note that arrest data is an imperfect proxy for the actual number of offenses committed. Under this Orwellian statistical propensity justification, one may imagine a narrowly tailored curfew aimed at all African-American males between the ages of 18 and 24. In 1995, the estimated rate of offenders in this group for murder and non-negligent manslaughter was 288.1 per 100,000. This rate is more than 9 times the rate for white males, 18 times that for black females, and 144 times that for white females. See SOURCEBOOK, supra note 9, at 339 tbl.3.131. The unequal distribution of offenders according to race and sex is relatively consistent across all age groups. See id.
276. Males account for only 48.9% of the total population but, in 1995, men were arrested for 76.1% of all serious crimes. See STATISTICAL ABSTRACT, supra note 263, at 14,209 tbls.13 & 328 209; see also Craig, 429 U.S. at 202 n.14 ("The very social stereotypes that find reflection in age differential laws . . . are likely substantially to distort the accuracy of these comparative statistics. Hence 'reckless' young men who drink and drive are transformed into arrest statistics, whereas their female counterparts are chivalrously escorted home.").
277. Consider the plight of the Japanese Americans detained during World War II and the political consequences that the government continues to face as a result. See Julie Tamaki, Redress Sought for War Detainees Reparations: Groups from L.A. Will Lobby Washington on Behalf of Japanese Latin Americans and Fired Rail and Mine Workers, L.A. TIMES, Feb. 11, 1998, at B1 (describing the effort to obtain apologies and reparations from the government for Japanese Americans who were detained in prison camps during World War II).
278. See U.S. CONFERENCE OF MAYORS REPORT, supra note 18, at 6-7 (noting that 23% of cities had problems implementing their curfews, including the concern that police officers will unfairly target minorities in the course of enforcing curfew regulations).
279. On the national level, African-Americans comprise only 15% of the juvenile population but they account for 28% of all juvenile arrests. See UPDATE, supra note 25, at 17. Of course it is not clear whether the high rate of arrests indicates that a greater proportion of African-American juveniles are perpetrators. The high arrest rate could merely reflect the fact that crime control efforts target these communities.
280. See Qutb v. Strauss, 11 F.3d 488, 488 (5th Cir. 1993) (upholding Dallas' juvenile curfew law without addressing the problem of selective enforcement). 269 Id. at 496 n. 11.
281. see Reynolds, supra note 239, at 96. African-American males represent approximately 39% of the curfew-age population. See id. at 48 (extrapolating data from 1990 U.S. Census).
282. See id. at 96 & n.2 (reporting that 21.5% of African-American males between the ages of 14 and 16 were arrested for curfew violations).
283. See Vincent Schiraldi, Curfew Laws - No Panacea for Juvenile Crime, JINN 2 (Feb. 1, 1996) (online magazine for Pacific News Service) 〈http://www.pacificnews.org/ jinn/stories/2.03/960201-juvenile.html〉 ("The most troubling impact of curfew laws is not their failure to reduce juvenile crime, despite the high cost of enforcing them. It's the selective way in which they are enforced, with the brunt of arrests falling consistently on inner-city teenagers."). The report goes on to say, "If white youth were being arrested at 19 times the rate of African American youth, there would be no debate over the effectiveness of New Orleans' curfew because New Orleans would not have a curfew - period." Id.
284. See Hutchins v. District of Columbia, 942 F. Supp. 665, 673-74 (D.D.C. 1996) (asserting that it would be improper to condone a curfew "based on a mere assumption that . . . parents require the city government to second guess their parenting decisions), aff'd, 144 F.3d 798 (D.C. Cir. 1998), vacated and reh'g en banc granted, 156 F.3d 1267 (D.C. Cir 1998).
285. For example, many courts use their discretionary power to set terms of probation that impose curfews on juveniles as a condition of release. See, e.g., ARIZ. REV. STAT. § 8-341 (1998) (permitting the court to impose probationary terms on juvenile offenders that include curfews); CAL. WELF. & INST. CODE § 628.1 (West 1998); FLA. STAT. chs. 39.053-.054 (1998); 705 ILL. COMP. STAT. 405/5-19 (West 1998); MASS. GEN. LAWS ANN. ch. 119, § 58 (West 1998).
286. Waters v. Barry, 711 F. Supp. 1125, 1139 (D.D.C. 1989).
287. See id. Children subject to the curfew regulation also recognized the curfew's inability to deter crime. Skeptical of the curfew's effectiveness, 15-year-old Bradley Brunet stated, "I don't see how it make [sic] an immensely large difference. If people are determined to do some crime, they go out and do it anyway." John Treadway, Curfew Still a Crime Fighter. Police, Parents Praise Program, NEW ORLEANS TIMES-PICAYUNE, Apr. 6, 1997, at A1 (quoting Brunet, a 15-year-old high-school student detained twice under the New Orleans curfew ordinance).
288. New Orleans's Mayor Morial acknowledged that he had not seen statistical evidence that curfews effectively reduce crime before he signed the curfew ordinance. Nonetheless, he has argued that the initiative is designed to increase parental awareness of their children's well-being. See Kevin Bell, Council Approves Curfew on City's Youth, NEW ORLEANS TIMES-PICAYUNE, May 24, 1994, at B1. Likewise, Councilwoman Peggy Wilson conceded that the City Council did not review any statistics demonstrating the effectiveness of juvenile curfews. See Telephone Interview with Peggy Wilson, supra note 23.
289. See generally U.S. CONFERENCE OF MAYORS REPORT, supra note 18 (relating favorable comments from cities with curfews).
290. See Reynolds, supra note 239, at 1 (noting that there has been only one published article examining a juvenile curfew's effectiveness). Besides Reynolds's dissertation the only other published article reviewing a curfew's affect on juvenile crime measured the number of felonies recorded by the FBI Uniform Crime Report for a one month period immediately following the curfew's implementation. The authors concluded that the 1976 Detroit juvenile curfew limited night time crime, but increased the rate of crimes committed in the afternoon. See Lee A. Hunt & Ken Weiner, The Impact of a Juvenile Curfew: Suppression and Displacement in Patterns of Juvenile Offenses, 5 J. POLICE SCI. & ADMIN. 407, 407-12 (1977). There is at least one unpublished study examining juvenile arrest rates in Cincinnati during three month periods both before and after implementation of that city's juvenile curfew. The authors of that study found that crime did not decrease overall, but as in Detroit, some crime appeared to shift from the evening to the afternoon hours. See Reynolds, supra note 239, at 1-2. Another study presented a largely anecdotal review of the Philadelphia juvenile curfew. See Curfew Ordinances, supra note 10, at 80-97.
291. U.S. CONFERENCE OF MAYORS REPORT, supra note 18, at 1 (reporting that the number of cities who considered their curfews effective increased from 57% in 1995 (387 cities responding) to 90% in 1997 (347 cities responding)).
292. See id. (noting that curfew laws help police officers by giving them probable cause, during curfew hours, to stop someone they think is suspicious). This may, however, raise Fourth Amendment issues. See supra note 63.
293. See U.S. CONFERENCE OF MAYORS REPORT, supra note 18, at 1-3 (stating that curfews were effective because "prevention is nine-tenths of the cure").
294. See id. at 4 (commenting that curfews resulted in less traffic at night as well as reduction in graffiti and vandalism).
295. Thirty-three cities (12% of those with curfews) indicated that curfews had no impact on street safety. See id. at 4, 5.
296. See id. at 5 (noting that 11% of respondent cities saw no change in the amount of juvenile crime, while another 10% had an increase in juvenile crimes following the implementation of a curfew ordinance).
297. Mayor Morial has touted the curfew as a great success. See Press Release from Office of Communications, City of New Orleans, "Juvenile Crime Down 38% in the First 60 Days of the Curfew" 1 (Sept. 28, 1994) (reporting a 38% drop in juvenile crime during curfew hours for the first 60 days of the curfew's implementation); see also Letter to the Editor, Calls Curfew a Success, NEW ORLEANS TIMES-PICAYUNE, Nov. 3, 1994, at B6 (expressing support for Mayor's crime control effort); Joan Treadway, Curfew Still a Crime Fighter. Police, Parents Praise Program, NEW ORLEANS TIMES-PICAYUNE, Apr. 6, 1997, at A1 (interviewing parents who credited the New Orleans curfew for the safety of the city's youth). Parents as well as children have lauded the curfew's success. See Letter to the Editor, Parent Favors City Curfew, NEW ORLEANS TIMES-PICAYUNE, July 30, 1994, at B6 (praising the curfew for its role in helping parents keep their children at home); cf. Morial Cites Curfew for Drop in N.O. Crime, NEW ORLEANS TIMES-PICAYUNE, Sept. 29, 1994, at B4 [hereinafter Morial Cites Curfew] (discussing Mayor Mortal's press release and citing opposition by the ACLU).
298. Mayor Morial has touted the curfew as a great success. See Press Release from Office of Communications, City of New Orleans, "Juvenile Crime Down 38% in the First 60 Days of the Curfew" 1 (Sept. 28, 1994) (reporting a 38% drop in juvenile crime during curfew hours for the first 60 days of the curfew's implementation); see also Letter to the Editor, Calls Curfew a Success, NEW ORLEANS TIMES-PICAYUNE, Nov. 3, 1994, at B6 (expressing support for Mayor's crime control effort); Joan Treadway, Curfew Still a Crime Fighter. Police, Parents Praise Program, NEW ORLEANS TIMES-PICAYUNE, Apr. 6, 1997, at A1 (interviewing parents who credited the New Orleans curfew for the safety of the city's youth). Parents as well as children have lauded the curfew's success. See Letter to the Editor, Parent Favors City Curfew, NEW ORLEANS TIMES-PICAYUNE, July 30, 1994, at B6 (praising the curfew for its role in helping parents keep their children at home); cf. Morial Cites Curfew for Drop in N.O. Crime, NEW ORLEANS TIMES-PICAYUNE, Sept. 29, 1994, at B4 [hereinafter Morial Cites Curfew] (discussing Mayor Mortal's press release and citing opposition by the ACLU).
299. Mayor Morial has touted the curfew as a great success. See Press Release from Office of Communications, City of New Orleans, "Juvenile Crime Down 38% in the First 60 Days of the Curfew" 1 (Sept. 28, 1994) (reporting a 38% drop in juvenile crime during curfew hours for the first 60 days of the curfew's implementation); see also Letter to the Editor, Calls Curfew a Success, NEW ORLEANS TIMES-PICAYUNE, Nov. 3, 1994, at B6 (expressing support for Mayor's crime control effort); Joan Treadway, Curfew Still a Crime Fighter. Police, Parents Praise Program, NEW ORLEANS TIMES-PICAYUNE, Apr. 6, 1997, at A1 (interviewing parents who credited the New Orleans curfew for the safety of the city's youth). Parents as well as children have lauded the curfew's success. See Letter to the Editor, Parent Favors City Curfew, NEW ORLEANS TIMES-PICAYUNE, July 30, 1994, at B6 (praising the curfew for its role in helping parents keep their children at home); cf. Morial Cites Curfew for Drop in N.O. Crime, NEW ORLEANS TIMES-PICAYUNE, Sept. 29, 1994, at B4 [hereinafter Morial Cites Curfew] (discussing Mayor Mortal's press release and citing opposition by the ACLU).
300. Mayor Morial has touted the curfew as a great success. See Press Release from Office of Communications, City of New Orleans, "Juvenile Crime Down 38% in the First 60 Days of the Curfew" 1 (Sept. 28, 1994) (reporting a 38% drop in juvenile crime during curfew hours for the first 60 days of the curfew's implementation); see also Letter to the Editor, Calls Curfew a Success, NEW ORLEANS TIMES-PICAYUNE, Nov. 3, 1994, at B6 (expressing support for Mayor's crime control effort); Joan Treadway, Curfew Still a Crime Fighter. Police, Parents Praise Program, NEW ORLEANS TIMES-PICAYUNE, Apr. 6, 1997, at A1 (interviewing parents who credited the New Orleans curfew for the safety of the city's youth). Parents as well as children have lauded the curfew's success. See Letter to the Editor, Parent Favors City Curfew, NEW ORLEANS TIMES-PICAYUNE, July 30, 1994, at B6 (praising the curfew for its role in helping parents keep their children at home); cf. Morial Cites Curfew for Drop in N.O. Crime, NEW ORLEANS TIMES-PICAYUNE, Sept. 29, 1994, at B4 [hereinafter Morial Cites Curfew] (discussing Mayor Mortal's press release and citing opposition by the ACLU).
301. See Reynolds, supra note 239, at 64, 66 figs.5.0, 5.1 (displaying victimization patterns for people of all ages during the first 100 weeks of the New Orleans curfew).
302. See id. at 68, 70 figs.5.4, 5.5 (reporting that curfew enactment increased the number of violent victimizations and property crimes during non-curfew hours and displaying the frequency of violent crimes depending on the time of day).
303. See id. at 67 figs.5.2, 5.3 (displaying victimization patterns for children under 17 during the first 100 weeks of the New Orleans curfew).
304. See Press Release from Office of Communications, City of New Orleans, "Juvenile Curfew in New Orleans" (reporting an 18% drop in juvenile crime during curfew hours between January 1, 1994, and May 31, 1996); see also Morial Cites Curfew, supra note 286 (reporting an initial 38% drop in crime during curfew hours). Curfew opponents, such as the ACLU, have criticized the Mayor for providing only favorable statistics and not presenting statistics on overall crime. See id.
305. See, e.g., U.S. CONFERENCE OF MAYORS REPORT, supra note 18, at 3, 4 (noting that both Kauai Hawaii and Tallahassee, Florida found "a nighttime curfew was not a useful tool" and its enforcement resulted in a temporal shift in crime from the evening to the daylight hours).
306. See Reynolds, supra note 239, at 2 (citing studies in Cincinnati and Detroit that reported temporal shifts in juvenile arrest rates from curfew hours to non-curfew hours).
307. See id. at 92-93 (noting "an inverse relationship between violent and property victimizations" that "would imply that one impact of the curfew . . . is the prevention of violent crimes while simultaneously increasing property crimes").
308. See id. at 75 fig.5.11
309. See id. at 72 (finding a direct relationship between the reduction of "manpower hours" spent enforcing the curfew regulations and a recent decrease in the number of property crimes committed by juveniles).
310. See id. at 88 & fig.5.24.
311. Increased police presence aimed at curfew enforcement should also discourage adult criminal activity, lowering the overall crime rate.
312. See id. at 90 (noting that after 20 weeks, violent victimization of juveniles had increased 5% over pre-curfew levels).
313. See id. at 93.
314. Id. at 95.
315. See supra note 286 (citing a press release that the Mayor's office issued, reporting a 38% decline in juvenile crime during curfew hours).
316. See Jodi Wilgoren & Faye Fiore, Curfews Cited for Drop in Juvenile Crime Rate, L.A. TIMES, Dec. 2, 1997, at A1 (quoting Ramona Ripston who disputed a survey that credited curfews for the decrease in juvenile crime). Significantly, the nation has witnessed a decline in both juvenile and adult crime. See UPDATE, supra note 25, at 16 (reporting that in 1995, juvenile crime dropped 25% and adult crime dropped 18%).
317. See Telephone Interview with John Rook, Media Coordinator, FBI New Orleans Field Office (Feb. 13, 1998) (notes on file with author). Like Ms. Ripston, Mr Rook acknowledged the nationwide decrease in crime. However, he also attributed the drop in New Orleans to the efforts of Superintendent Richard Pennington, Chief of Police. Chief Pennington has significantly improved the New Orleans Police Department, both in terms or statt quality and crime reduction strategies. See id.
318. See supra text accompanying notes 246-48 (comparing the national percentage of violent crime committed by juveniles crime in 1972 to the percentage of juvenile violent crime in 1995).
319. James Gill, ACLU's Drive to Scrap City's Curfew, NEW ORLEANS TIMES-PICAYUNE, Sept. 16, 1994, at B7.
320. See Press Release from Office of Communications, City of New Orleans "Mayor Announces Tough New Crime Initiative" 1 (May 16, 1994). In May 1994, the Morial administration launched MAC I with the juvenile curfew as its centerpiece. The initiative also included an expansion of the recreation department, a community policing component, a "gun buy back" program, and a decentralization effort to take at least 100 police officers from their desk jobs to street patrol. See id.
321. See id. at 1-3.
322. See OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION, U.S. DEP'T OF JUSTICE, CURFEW: AN ANSWER TO JUVENILE DELINQUENCY AND VICTIMIZATION? 7 (1996) [hereinafter ANSWER] (noting that the increase in the number of summer camps will serve more than 100,000 youth, and the number of swimming pools will increase from 4 to 14); see also Press Release from Office of Communications, City of New Orleans, "Mayor Morial Reports Juvenile Crime Down on Anniversary of Curfew" 1 (June 2, 1995) (quoting Mayor Morial who reported that, "The curfew along with our summer jobs and recreation program will further reduce crime on the streets of New Orleans").
323. See ANSWER, supra note 308, at 7 (explaining that New Orleans funds the MACI summer youth program under a "local public-private partnership," along with significant aid via federal grants).
324. Given the crime rate in New Orleans, the city needs all the crime fighting weapons it can get. See Schiraldi, supra note 272, at 2 (questioning the efficacy of the curfew as an element of the MACI program because, during the curfew's first year, the number of murders increased so dramatically that New Orleans had the highest murder rate in the nation).
325. See Pressley, supra note 39, at A3.
326. See id.
327. See supra text accompanying notes 212-13.
328. This is a basic tenet underlying the utilitarian theory of criminal law. See, e.g., Johannes Andenaes, General Prevention-Illusion or Reality?, 43 J. CRIM. L. CRIMINOLOGY & POL. SCI. 176, 179-80 (1952) ("General prevention may depend on the mere frightening or deterrent effect of punishment-the risk of discovery and punishment outweighing the temptation to commit the crime."). However, the evidence supporting a correlation between effective enforcement and deterrence is largely anecdotal. See FRANKLIN E. ZIMRING & GORDON J. HAWKINS, DETERRENCE: THE LEGAL THREAT IN CRIME CONTROL 158-72 (1973).
329. This is a basic tenet underlying the utilitarian theory of criminal law. See, e.g., Johannes Andenaes, General Prevention-Illusion or Reality?, 43 J. CRIM. L. CRIMINOLOGY & POL. SCI. 176, 179-80 (1952) ("General prevention may depend on the mere frightening or deterrent effect of punishment-the risk of discovery and punishment outweighing the temptation to commit the crime."). However, the evidence supporting a correlation between effective enforcement and deterrence is largely anecdotal. See FRANKLIN E. ZIMRING & GORDON J. HAWKINS, DETERRENCE: THE LEGAL THREAT IN CRIME CONTROL 158-72 (1973).
330. See Reynolds, supra note 239, at 101-02 (quoting FRANKLIN E. ZIMRING & GORDON J. HAWKINS, DETERRENCE: THE LEGAL THREAT IN CRIME CONTROL 25 (1973)).
331. See Telephone Interview with Ralph E. Thayer, Ph.D., Professor of Urban Affairs, University of New Orleans (Feb. 17, 1998) (notes on file with author).
332. See Pressley, supra note 39, at A3 (reporting that the city hired Maple and Linder because their strategy emphasizes formalized communication with officers and greater officer accountability).
333. See David Pitts, New Orleans - The Comeback City, 2 ELECTRONIC J. OF U.S. INFO. AGENCY - ISSUES OF DEMOCRACY (Nov. 1997) 〈http://www.usia.gov/journals/itd/1197/ ijde/neworlen.htm〉 (explaining that COMSTAT is a "crime data management system" that tracks criminal activity).
334. see U.S. CONFERENCE OF MAYORS REPORT, supra note 18, at 2-5 (quoting reports from San Francisco, Kauai, Tallahassee, and Memphis complaining that their curfews were ineffective because most offenses occur during non-curfew hours).
335. See UPDATE, supra note 25, at 26 (indicating that 57% of juvenile violent crimes occurs on school days).
336. See id. (finding that one in five violent juvenile crimes occurs on school days between 2:00 p.m. and 6:00 p.m.).
337. See id. (reporting that violent juvenile crime is four times more likely to occur during the after school period than during curfew hours).
338. See Telephone Interview with Peggy Wilson, supra note 23. Ms. Wilson noted that there is "hardly any enforcement of anything" in New Orleans, let alone the juvenile curfew. Id.
339. See id. (citing inconsistent enforcement of curfew regulations as one of several factors contributing to the mere marginal effectiveness of the New Orleans curfew law).
340. See Telephone Interview with Ralph E. Thayer, supra note 316.
341. See id.
342. See Christopher Cooper & Walt Philbin, N.O. Credits its Curfew for June's Drop in Crime, NEW ORLEANS TIMES-PICAYUNE, July 1, 1994, at A1 (commenting that the time it takes an officer to drive across town to the curfew center and to fill out the required paperwork could cost an officer 90 minutes of patrol time).
343. Ten percent of cities with curfews reported to the USCM that curfew enforcement is not a good use of police officers' time. Many expressed the concern that curfew enforcement takes officers away from more serious priorities. See U.S. CONFERENCE OF MAYORS REPORT, supra note 18, at 2.
344. Walt Philbin, Curfew Not Top Priority, Police Say, NEW ORLEANS TIMES-PICAYUNE, May 31, 1996, at A12.
345. Id.
346. See Reynolds, supra note 239, at 68. The curfew task force initially dedicated over 2500 "man-hours" per week to curfew enforcement. This may explain the high success rate that the Mayor reported 60 days after the curfew's implementation. See id. at 52-53 & fig.3.2. After about eight months, the amount of time dedicated to curfew enforcement dropped to a mere 100 or so hours per week. See id. Although property crimes appear to decrease with the reduction in "manpower hours," this is an anomaly; overall juvenile crime and victimization do not. See supra text accompanying note 295.
347. See Reynolds, supra note 239, at 52.
348. A city could defray many administrative costs by using community volunteers. Additionally, cities could try using space donated by church or community organizations as curfew centers. A curfew hotline might also help facilitate the enforcement of a curfew law See NATIONAL CRIMINAL JUSTICE ASS'N, JUVENILE JUSTICE REFORM INITIATIVES IN THE STATES: 1994-1996, at 17-18 (1997).
349. see Philbin supra, note 329, at A12 (quoting one officer who stated that, "[w]e arrested so many of them, got it through their heads that they would be hassled if they broke the law and their parents would be responsible, that far less hang out even today with less enforcement ).
350. See Telephone Interview with Kenneth M. Reynolds, Ph.D., Assistant Professor of Criminal Justice, University of Central Florida (Feb. 24, 1998) (notes on file with author); see also Chief Samuel D. Pratcher, A Response to Juvenile Curfew Violations 61 POLICE CHIEF 58, 58 (1994) (describing random enforcement strategy as a strategy often used to compensate for lack of enforcement manpower).
351. A curfew violation is considered a status offense and not a crime. Therefore, vioators can be detained but not arrested. See Deborah Sharp, New Orleans Puts its Curfew in Good Light, USA TODAY, Oct. 4, 1996, at A4 (stating that unless curfew violators are carrying drug or weapons, they do not face charges). The International Municipal Lawyers Association suggests in its Model Ordinance that charges could be filed against repeat curfew violators and a court then could impose fines or other conditions on the child. See NIMLO MODEL JUVENILE CURFEW ORDINANCE § 13-107 (c), (d) (Int'l Mun. Lawyers Ass'n 1996).
352. See Sharp, supra, note 336, at A4 (reporting that 27% of curfew violators are repeat offenders).
353. See Frank Donze & Kevin Bell, Mayor Morial Unveils Plan to Beat Crime, NEW ORLEANS TIMES-PICAYUNE, May 17, 1994, at A1.
354. See Telephone Interview with Ralph Brandt, Chief of Juvenile Division New Orleans District Attorney's Office, Apr. 22, 1998 (notes on file with author). Mr. Brandt indicated that there are no statistics on the number of prosecutions under the curfew ordinance, but he noted that he "doubts that any have been prosecuted." Id. Children cannot be prosecuted for curfew violations, but repeat offenders may be referred to the Family in Need of Services (FINS) program. See id.
355. See Telephone Interview with Peggy Wilson, supra note 23.
356. See id.; see also Peggy Wilson, Visit to Curfew Center Reveals Value of Program, NEW ORLEANS TIMES-PICAYUNE, Oct. 12, 1994, at B7 ("When policemen detain children under the curfew, those children are sent a message that somebody cares, and parents are shamefully reminded that somebody cares about whether they care about their children.").
357. See Editorial, Curfew Curtails Summer Night, NEW ORLEANS TIMES-PICAYUNE, Sept. 2, 1994, at B6 (asserting that "too strict a curfew will backfire").
358. Charles Walston, New Orleans Draws a Bead on Curbing Juvenile Crime, ATLANTA J. & CONST., Apr. 27, 1996, at A2 (quoting Marc Morial, Mayor of New Orleans).
359. Telephone Interview with Peggy Wilson, supra note 23.
360. This section presents a general overview of some of the prominent features of Boston's juvenile crime and violence reduction strategy, comparing and contrasting it with a simple curfew program. A comprehensive discussion and empirical analysis of the Boston plan is beyond the scope of this Article.
361. See U.S. CONFERENCE OF MAYORS REPORT, supra note 18, at 1 (noting that of the 276 cities surveyed, approximately 80% have nighttime youth curfews).
362. See BOSTON POLICE DEP'T & PARTNERS, THE BOSTON STRATEGY TO PREVENT YOUTH VIOLENCE, PREVENTION, INTERVENTION AND ENFORCEMENT 12 (1997) [hereinafter PREVENTION, INTERVENTION AND ENFORCEMENT]. According to the Boston Police Department and its partners, "The Boston Police Department's strategy of prevention, intervention enforcement provides a community-wide, systematic approach to comprehensive prevention and community justice . . . . The BPD will continue to assess and modify our Neighborhood Policing efforts . . . to achieve a city free of fear and crime." Id.
363. See Easy Access, supra note 240.
364. See CRIME STATISTICS, supra note 240, at tbls.1, 5 (amended 1998) (reporting statistics on firearm homicides and homicide arrests in Boston for youths ages 16 and under).
365. See supra text accompanying notes 240-46, 251-59 (reviewing juvenile crime and victimization statistics for the City of New Orleans).
366. See Reno Says Drop in Juvenile Crime Speaks Well for Mentor Programs, STAR TRIBUNE (Minneapolis), Dec. 13, 1996, at A12.
367. Id.
368. See Attorney General Janet Reno, Foreword to U.S. DEP'T OF JUSTICE, YOUTH VIOLENCE: A COMMUNITY-BASED RESPONSE: ONE CITY'S SUCCESS STORY (1996) (describing Boston's program as a model for reducing juvenile crime and victimization).
369. See id.
370. PREVENTION, INTERVENTION AND ENFORCEMENT, supra note 347, at 2 (1997).
371. See CRIME STATISTICS, supra note 240, at tbl.1 (showing 2 firearm related juvenile homicides in 1995, 0 in 1996, and 1 in each of the years 1997 and 1998).
372. See BOSTON POLICE DEP'T & PARTNERS, THE BOSTON STRATEGY TO PREVENT YOUTH VIOLENCE, FOCUS ON: OPERATION CEASE FIRE 1 (1997) [hereinafter OPERATION CEASE FIRE] (summarizing the key aspects of Operation Cease Fire). Under this program, gang members must meet with police department representatives and must agree to comply with "the law and the safety and security norms of the impacted communities; compliance equals, literally, a 'cease fire.'" Id.
373. See CRIME STATISTICS, supra note 240, at tbl.2 (reporting that between June 1990 and February 1998, the rate of firearm-related homicides for people under the age of 24 dropped by approximately 84%).
374. See id. at tbl.4 (showing a 96% decrease in the total number of homicides between 1990 and 1998).
375. See id. at tbl.5 (revealing a decline in the number of arrests for aggravated assault and battery with a firearm from 32 in 1993 to 12 in 1996, and a decline in homicide arrests from 14 to 0 during the same period).
376. See Easy Access, supra note 240 (finding that 2065 juveniles were arrested in 1991 in Suffolk County, Massachusetts, which includes Boston, compared to only 1501 arrested in 1995).
377. See U.S. DEP'T OF JUSTICE, YOUTH VIOLENCE: A COMMUNITY-BASED RESPONSE 4 (1996) [hereinafter COMMUNITY-BASED RESPONSE] (describing the cooperative efforts of various government agencies that are working to identify hot spots and to suppress crime in those areas).
378. See OPERATION CEASE FIRE, supra note 357, at 1. The Boston Police Department and Partners identified its target population based on data from Harvard's Kennedy School of Government, revealing that the majority of juveniles killed with firearms were involved in a gang and 14% were on probation at the time they were killed. Thus, the target popu-lation for Operation Cease Fire consists of more than 1300 gang members, those most likely to become offenders or victims. See id.
379. See id. (noting that some areas of Boston, including Roxbury, Dorchester, and Mattapan, have been identified as juvenile crime hot spots, indicating a need for heightened enforcement).
380. See infra text accompanying notes 381-97 (describing Boston's intervention strategies).
381. See infra text accompanying notes 398-403 (detailing Boston's commitment to preventing juvenile crimes).
382. See OPERATION CEASE FIRE, supra note 357, at 2.
383. See supra text accompanying note 318 (describing COMSTAT as "crime data management system" that tracks criminal activity and provides maps showing crime trends in different parts of the city).
384. See OPERATION CEASE FIRE, supra note 357, at 1 ("Meetings are held among gang members and all partners to demand compliance with the law . . . . Failure by the gang to comply brings a focused program of intensive order maintenance and enforcement.").
385. See supra text accompanying notes 266-72 (discussing the disparate impact of curfew laws on racial minorities).
386. See OPERATION CEASE FIRE, supra note 357, at 2.
387. See id. (finding that out of 155 juveniles under the age of 21 who were murdered in Boston between 1990 and 1994, the majority were involved in some way with violent street gangs).
388. See id.
389. Compare U.S. CONFERENCE OF MAYORS REPORT, supra note 18, at 6-7 (noting that 23% of cities were concerned that police officers unfairly targeted minorities in the course of enforcing curfew regulations), with OPERATION CEASE FIRE, supra note 357, at 2 (reviewing four years of Boston area crime statistics to identify a target population of juveniles who are most likely to commit crimes or suffer criminal victimization).
390. OPERATION CEASE FIRE, supra note 357, at 2.
391. See Ronald P. Corbett, Jr. et al., Operation Night Life: An Emerging Model for Police-Probation Partnership 105 (Pioneer Inst. for Pub. Pol'y Res., Boston, Mass., Better Gov't Competition Series No. 6, 1996), reprinted in, BOSTON POLICE DEP'T & PARTNERS, THE BOSTON STRATEGY TO PREVENT YOUTH VIOLENCE, Focus ON: OPERATION NIGHT LIGHT (1997) [hereinafter Police-Probation Partnership] (describing Operation Night Light as "a partnership between police and probation officers that provides the court with a tool to enforce the terms of probation").
392. See Ronald P. Corbett, Jr. et al., Operation Night Life: An Emerging Model for Police-Probation Partnership 105 (Pioneer Inst. for Pub. Pol'y Res., Boston, Mass., Better Gov't Competition Series No. 6, 1996), reprinted in, BOSTON POLICE DEP'T & PARTNERS, THE BOSTON STRATEGY TO PREVENT YOUTH VIOLENCE, Focus ON: OPERATION NIGHT LIGHT (1997) [hereinafter Police-Probation Partnership] (describing Operation Night Light as "a partnership between police and probation officers that provides the court with a tool to enforce the terms of probation").
393. See id.
394. See COMMUNITY-BASED RESPONSE, supra note 362, at 3-4 (1996). YVSF and the Massachusetts Department of Probation have mandated nightly visits of police and probation officers to youths' homes as well as visits to school and work that "serve simultaneously to provide for a more interactive relationship between the probation officer and the probationer, strengthen the relationship between the police and probation officers, get the parents involved in the child's probation, and serve notice to other youths that police and probation officers are serious about their mission." Id. at 3.
395. See Police-Probation Partnership, supra note 376, at 110. The program has demonstrated dramatic success. For example, one probation officer commented that between 1990 and 1994, 68 of his juvenile probationers were murdered. Since 1995, however, only three have been murdered. See COMMUNITY-BASED RESPONSE, supra note 362, at 4.
396. See Police-Probation Partnership, supra note 376, at 110. The program has demonstrated dramatic success. For example, one probation officer commented that between 1990 and 1994, 68 of his juvenile probationers were murdered. Since 1995, however, only three have been murdered. See COMMUNITY-BASED RESPONSE, supra note 362, at 4.
397. Of course, cities may face significant bureaucratic obstacles and costs if they choose to replicate Operation Night Light. Primarily, the city must gain support from both the community and police officers. The judiciary also must cooperate by imposing appropriate probationary terms and enforcing those terms in revocation proceedings. Added expenses might include overtime pay for officers and operation costs, such as extra police cars. See Police-Probation Partnership, supra note 376, at 111-12, 114. These added costs, though significant, are not likely to be excessive compared to implementing a curfew and would not be particularly burdensome for a municipality the size of New Orleans. See Reynolds, supra note 239, at 100-01 (discussing the costs associated with implementing the New Orleans juvenile curfew).
398. See supra text accompanying notes 307-11 (discussing aspects of the MACI program which, in addition to the curfew, are aimed at curtailing juvenile crime in New Orleans).
399. See COMMUNITY-BASED RESPONSE, supra note 361, at 5-6 (describing SNI as a partnership to "prevent lives of crime and encourage constructive behavior and activities").
400. See id.
401. See id. (noting that the SNI Tip Line is advertised in local newspapers and encourages citizens to "respond in a clear voice" when they suspect or witness criminal activities in their neighborhoods).
402. See id. at 6 (describing the Child Witness to Violence Project).
403. See id. at 7.
404. See id. at 6. This program is a very important aspect of preventing crime as well because, according to the U.S. Department of Justice, "[c]hildren who experience crime or even witness violence are more prone to engage in criminally violent behavior because they have learned that violence is an acceptable means of resolving disputes." Id.
405. Id. at 8.
406. Id.
407. See id. at 9 (summarizing various community partnerships including the Boston Bar Association's "Partnership in the Legal Community" and the Point Coalition's "Partnership and Leadership in the Religious Community").
408. See id. at 10 (describing the CCP as a project whose mission is "to work in partnership to reduce crime and fear, and improve the quality of life in the targeted neighborhoods").
409. See PREVENTION, INTERVENTION AND ENFORCEMENT, supra note 347, at 6-7 (discussing the YSPN project which, "opened its doors in June, 1996 and [as of 1997] over 300 youngsters [had] already been referred").
410. See id. at 7. The BPD provided the following poignant example: In June, 1996 a troubled 13 year-old boy walked into the Mattapan B-3 stationhouse [sic] in tears, looking for somewhere to turn after an angry confrontation he instigated with his grandmother. The desk officer referred the youngster to Detective Maria Price, who hooked him up immediately with the YSPN social worker. After the intervention, the boy is now back home with his grandmother and in touch with his school counselor. He is following a plan for the summer that included successful participation in a local camp. His progress in being monitored by the social worker and the detective. Id.
411. See COMMUNITY-BASED RESPONSE, supra note 362, at 11 (providing a comprehensive list of all the community outreach programs available under YSPN).
412. See id. at 12.
413. See id. (reporting that approximately 50 Streetworkers meet daily with at-risk youths on the streets, at school, and even in their homes in an effort to advise these young people of the programs that are available to help them keep safe and crime-free).
414. Id.
415. See id. at 13 (noting that this program, which the Department of Education funds, currently operates in two Boston schools).
416. See id. (describing the Boston School-to-Career Program, which serves every public high school in Boston, including alternative schools, "with a goal of ensuring . . . in-school youth have a smooth transition to the world of work").
417. See PREVENTION, INTERVENTION AND ENFORCEMENT, supra note 347, at 11 (discussing the Boston Police Student/Youth Athlete Program, which pairs at-risk youths with mentors from Boston College, Boston University, Harvard University, Northeastern University, and the University of Massachusetts at Boston).
418. See id.
419. See id. (summarizing the crime and victimization prevention programs that are available to school aged children in Boston during the months that school is not in session).
420. David Talbot, Hub Gains Fame for Curbing Kid Kills, BOSTON HERALD, Feb. 7, 1997, at 1. Cities across the nation are seeking to emulate this so called "miracle." See id. (noting 48 cities, from Philadelphia to Glasgow, Scotland, have sought information on the Boston strategy).
421. T.S. Eliot, East Coker, in COLLECTED POEMS 1909-1962, at 182, 189 (1963).
422. NATIONAL REPORT, supra note 17, at 1.
423. SAM A. LINDSAY, NATIONAL INSTITUTE OF MUNICIPAL LAW OFFICERS, JUVENILE CURFEWS AND THE CONSTITUTION: THE LATEST ROUND IN A CONTINUING DEBATE 7 (1994).
424. As Judge Richey astutely observed, "Facile, knee-jerk responses will not suffice. Just as mere punishment will never cure the drug addict, so mere martial tactics will never wean the District from its addiction to violence and illegal trafficking in drugs." Waters v. Barry, 711 F. Supp. 1125, 1127 (D.D.C. 1989). However, the Waters court found the city's response to the admittedly dire crime problem was "stern to the point of unconstitutionally." Id. at 1135.
425. Bykofsky v. Borough of Middletown, 429 U.S. 964, 965 (1976) (Marshall, J., dissenting) (citation omitted).
426. See generally Trollinger, supra note 56 (arguing that juvenile curfew ordinances are paternalistic and an invasion of the citizen's personal liberties, regardless of whether that person is an adult or a minor). In addition, "[a]side from the constitutional problems, the curfew . . . cannot begin to touch the societal and familial deterioration that are underlying causes of crime." Id. at 1003.
427. Thus, Peggy Wilson's suggestion that the New Orleans curfew parameters correspond with the time that children should be home doing their homework seems idealistic at best. It also represents a breed of paternalism that cannot, without more, justify imposition of a curfew. See Telephone Interview with Peggy Wilson, supra note 23.
428. Prince v. Massachusetts, 321 U.S. 158, 168 (1944).
429. See NATIONAL REPORT, supra note 17, at 51 (noting that less than .5% of juveniles are arrested for violent crimes).
430. See supra note 274 (listing several states' statutes, empowering their courts to impose curfews as terms of probation for juvenile delinquents); see also Schleifer v. City of Charlottesville, 159 F.3d 843, 861 (4th Cir. 1998) (dissenting opinion) (contending that the state's power to override parental discretion must be justified on a case-by-case basis); Susan L. Freitas Note, After Midnight: The Constitutional Status of Juvenile Curfew Ordinances in California, 24 HASTINGS CONST. L.Q. 219, 244 (1996) (arguing that courts should impose curfews on an individual basis, but that municipalities should not impose city-wide juvenile curfews).
431. ANSWER, supra note 308, at 4 (1996).
432. See discussion supra Part III.A (describing the New Orleans curfew and debating its efficacy).
433. See Reynolds, supra note 239, at 102-03 ("The generalizability of the study beyond New Orleans is questionable. New Orleans is unique in many respects given its high crime rates, socio-economic factors, and temperate climate.").
434. Other innovative programs, many of which are not incorporated in the Boston strategy, have also reported success in reducing youth violence. See generally Dewey G. Cornell, Responding to Youth Violence: Programs that Work (Oct. 10, 1997) (Draft working paper for the Virginia Youth Violence Project) (noting that community based initiatives, such as mentoring and supervised recreation programs, offer alternative less restrictive means for reducing youth violence).
435. See KRISTEN KRACKE, U.S. DEP'T OF JUSTICE, FACT SHEET NO. 38 SAFEFUTURES: PARTNERSHIPS TO REDUCE YOUTH VIOLENCE AND DELINQUENCY 1 (1996) (describing funding by the SafeFutures program, which consists of $1.4 million per year for five years, granted to six communities, including Boston).
436. See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 (codified as amended in scattered sections in 42 U.S.C.). There are many other sources of federal funding for delinquency prevention programs. See COORDINATING COUNCIL ON JUVENILE JUSTICE AND DELINQUENCY PREVENTION, U.S. DEP'T OF JUSTICE, COMBATING VIOLENCE AND DELINQUENCY: THE NATIONAL JUVENILE JUSTICE ACTION PLAN passim (1996) [hereinafter COORDINATING COUNCIL] (providing lists of resources for those seeking federal funding).
437. See 42 U.S.C.A. § 13751 (West Supp. 1998). The Act provides $200 million for local prosecutors and anti-gang initiatives. Another $75 million has been slated for an AtRisk Children Initiative focusing on intervention efforts. For an overview of the Act's provisions and a section-by-section analysis of the Act, see U.S. Dep't of Justice, The President's Anti-Gang and Youth Violence Strategy (visited Feb. 28, 1999) 〈http://www.usdoj.gov/ag/anti-gang.htm.〉.
438. It has been estimated that the average cost of incarcerating a juvenile for one year is between $34,000-$64,000. The total costs for a violent career criminal often exceeds $1,000,000. See COORDINATING COUNCIL, supra note 419, at 8.
439. Peggy Wilson, Visit to Curfew Center Reveals Value of Program, NEW ORLEANS TIMES-PICAYUNE, Oct. 12, 1994, at B7.
440. Bennie R. Click, Statistics in Dallas Encouraging, 61 POLICE CHIEF 33, 36 (1994).
441. COORDINATING COUNCIL, supra note 419, at 8.