YOUTH CURFEW: BALANCING THE RIGHTS OF YOUTH AND ADULT & SAFETY OF YOUTH AND THE SOCIETY

INTRODUCTION

At the heart of democracy is the idea that citizens are equal before the law. In elections, every citizen gets only one vote. When citizens are charged with crimes or believe their rights have been violated, they expect equal treatment in the courts whether they are rich or poor, religious or atheist, politicians or political activists.

Every democratic society must strive to grant equal protection to its citizens. Yet one significant community of citizens is the focus of many laws but has no formal way to shape those laws: youth. Children and adolescents are a vital part of every nation. They are subject to society’s rules, but they are treated differently under the law precisely because of their age. They cannot vote, nor do they have many of the privileges and responsibilities of older citizens. Instead, laws are passed to help and protect them or to protect the larger society. One of these laws is the youth curfew.

ANALYSIS ON UNITED STATES OF AMERICA CURFEW LAWS[1]

Curfew laws have been challenged on a variety of constitutional grounds. Although some may argue juveniles do not have constitutional rights, the Supreme Court in many cases has ruled that people have constitutional rights regardless of age. Often these cases have involved issues of students’ rights in schools. Tinker v. Des Moines School District in 1969 ruled that students had the right to freedom of speech in schools.[2] This case involved how school officials had forbidden a group of students from carrying out their symbolic protest of the Vietnam War by wearing black armbands. The constitutional rights of young people have been affirmed in many other cases, such as their religious freedom in schools, where religious activity is allowed as long as it is student led. In the case Missouri v. Danforth in 1976, it was directly stated that people have full constitutional rights regardless of age. In the court’s opinion:

Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority.[3]

Although young people are subject to a large number of restrictions based upon age, the judicial system has a long precedent for people having full constitutional rights regardless of age.

The Supreme Court has long recognized that the rights of freedom of speech and assembly go hand in hand. In order to voice opinion, it is sometimes necessary to gather protests, and the only way to accomplish this is if there is freedom to gather in public as long as it is peaceful. The fourteenth amendment also guarantees that state and local governments cannot take away first amendment rights. Many curfew laws, however, have exceptions written in them that allow offenders to be exempt if they are involved in a political protest. The importance of the use of public property such as streets and parks for conducting political speech has been protected by freedom of assembly under the first amendment since Hague v. CIO, 307 U.S. 496 in 1939. This case involved a group of people denied permits from the police for holding a meeting in a building in Jersey City for allegedly being communist. The city ordinance required anyone conducting a speech advocating obstruction of government to obtain a permit through the police station before getting a lease to any hall or building for conducting the speech.[4] However, in Cox v. Louisiana, 379 U.S. 536, 554 , 464 (1965), it was ruled states may impose reasonable regulations upon assembly. In the opinion of the court:

One would not be justified in ignoring the familiar red light because this was thought to be a means of social protest. Nor could one, contrary to traffic regulations, insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech or assembly.

However, the regulatory measures must be narrowly defined to reach only the legitimate objectives of the state regulation. While the Supreme Court’s interpretation of freedom of speech is broad, its interpretation of freedom of assembly appears to be narrow.

Curfew laws directly remove the right to assemble in public, and many times even on private, property. The constitutionality of youth curfew laws has yet to be tested in the Supreme Court. Lower courts are divided over the issue, many ruling unconstitutional, and many ruling constitutional. The Supreme Court has only ever had one case to do with a curfew law in history, Kiyoshi Hirabayashi v. United States in 1943. This case was concerning the curfew imposed upon Japanese during World War II. It was upheld because the court felt constitutional rights were less applicable in times of war.

General curfews have often been imposed as a response to an emergency, such as riots, and they usually were implemented only a few days to a few weeks. The key difference is that they are intended from the start to be temporary, whereas youth curfews are intended to be permanent. A general curfew, which applied to all citizens to respond to a temporary emergency, was appealed to the Supreme Court in Janet Stotland v. Commonwealth of Pennsylvania.[6] They refused to hear the case. However, Justice Douglas dissented arguing that curfew laws may be necessary when the security of the state is threatened, but they raised serious questions about the right of assembly. He stated he was concerned about the possible abuse of curfew laws in clearing the public of “undesirable people,” such as minorities, and he argued a curfew law should be temporary and narrowly defined.

The judicial system often applies a test to see if a law is narrowly defined enough and does not give the authorities too much power. Many lower courts that ruled a youth curfew law unconstitutional later ruled it constitutional after many exceptions were added into the law. Although curfew laws violate constitutional rights, the courts ruling in favor of curfew laws state they have a “compelling state interest” of reducing juvenile crime and victimization. Few people care about the rights of other people, and usually they only care about their own. Many adults seem not care about the rights of young people at all, by making their mere presence illegal. A survey conducted by Wichita State University asking cities nationwide a variety of questions concerning curfew laws found no city that didn’t have a curfew law specifying constitutional issues as a reason for not having it[7]. For these reasons, the only aspect about curfew laws that may really matter is if they are necessary, and if they do in fact accomplish their stated goals of reducing juvenile crime and victimization thus having a “compelling state interest.”

Nationwide, the majority of cities with curfew laws claim they are great successes in reducing crime. In a survey done by the U.S. Conference of Mayors, it was found that the officials in 88% of the cities with curfew laws believed that they helped reduce juvenile crime.[8] However, as reported by the Los Angeles Times, the survey “did not include a statistical analysis of the effect curfews have had on crime”.[9] In addition, I was only able to find one study of the effectiveness of curfew laws that did a statistical hypothesis test that the level of curfew enforcement is negatively correlated with the level of other crime. It was the only one to use the basic procedures of using controlled data and testing for statistical significance. Curfews have been around for a long time, and the crime statistics to study them are readily available. The fact that virtually no research has been done, while so many people are claiming curfew laws are great successes, seems very irresponsible, and should lend itself to skepticism. Although statistics are often used to deceive, they’re often the only way of measuring the real world, if done properly. Law enforcement agencies that say they “observe” a decline in juvenile crime should explain exactly how they observe it. Law enforcement officials report whatever crime measure conveniently shows crime has decreased. For example, the Office of Juvenile Justice and Delinquency Prevention did a study of curfew laws in 1996[10] and used crime victimization in some cities, arrest figures in others, and arrest figures for only selected crimes in still others. It made no controlled comparisons, and so it is useless for research purposes.[11]

Youth Curfews: Protection or Punishment?

Youth curfew laws make it illegal for young people, usually under age 16 or 17, to be on the streets during certain times, typically from 11:00 p.m. to 4:00 a.m. These laws are part of a larger group of “status offenses.” A status offense is something that is illegal when a young person does it but legal when done by an adult. Depending on the country, other examples can be smoking or drinking in public, running away from home, or not being in school during a normal school day.

The United States is the current leader in legislating and enforcing curfew laws. These laws are usually passed and enforced by state or local governments. During the 1990s, thousands of American cities and towns, including nearly three-fourths of all cities with more than 100,000 inhabitants, enacted youth curfew laws. These laws were part of a response to the increase in juvenile crime that occurred in the United States between 1988 and 1992. During those four years, juvenile homicide increased 55 percent. Forcible rape increased 27 percent, and aggravated assault jumped 80 percent. Young people under 16 were responsible for 62 percent of violent juvenile offenses, but statistics also showed that teenagers were the most frequent targets of juvenile violence. Curfew laws enacted in the 1990s were aimed at reducing juvenile crime and preventing youth victimization.

Several European democracies have imposed different versions of youth curfews. In Britain, a 1998 law allowed local councils to impose curfews for all children under ten. A Scottish program mandates police officers to stop young people on the streets at night and divert them towards youth activities available at clubs set up by the local council. Serbia has debated extending wartime curfew policies for young people only. Curfews also have been introduced in Australia. In the city of Perth, Australian lawmakers recently imposed a curfew for a year; they report that the curfew has reduced crime and antisocial behavior. Curfew laws in the United States have been challenged by the American Civil Liberties Union (ACLU). ACLU lawyers argue that the curfew law violates young people’s rights under the U.S. Constitution, including freedom of speech and peaceful assembly, freedom from unreasonable detainment, fair treatment under the law, and the right to travel.

Not surprisingly, different challenges to local curfew laws in the United States have yielded different results. A federal court declared that the curfew law in the city of Dallas, Texas, was unconstitutional. The city appealed this decision to a higher court, and that court ruled that the Dallas curfew was constitutional because it had the potential to reduce juvenile crime and victimization. The higher court also ruled that certain exceptions in the curfew law provided young people and their parents with enough freedom to move about after curfew hours. Many other communities followed Dallas’s example and established curfew laws. In 2001, however, curfew laws were successfully challenged in the states of Alaska, New Jersey, New York, and elsewhere. In those cases, curfew laws were found to violate the constitutional rights of young people and their parents.

Balancing Rights and Safety

Most arguments about youth curfews address two main ideas: (1) the safety of youth and society and (2) the rights of youth and adults.

1. The Safety of Young People and Society.

Advocates claim that youth curfews can help protect vulnerable children. Most parents, they say, are responsible, but many cannot supervise their children, who may then fall victim to street crime and accidents. Curfews, they say, can protect under supervised children and help parents face up to their responsibilities. Supporters also claim that youth curfews can challenge negative youth attitudes in areas where defying the law is considered desirable and gang membership is a status symbol. Curfews encourage young people to spend more time with their families and in more positive activities, such as sports and youth clubs.

People opposed to curfews argue that curfews limit the rights of parents to bring up their children as they choose. Requiring adults to accompany their children to outside activities is unreasonable and prejudicial because many adults don’t believe they need to—or are unable to—transport their children around the community.

Advocates of youth curfews also believe that these laws provide communities with fair and positive means to reduce juvenile violence. Juvenile crime is a serious problem that often involves drugs and violence. Gangs can terrorize communities and create a social climate in which criminal activity becomes the norm. Youth curfews deal with these problems by keeping young people off the street and preventing them from congregating in the hours of darkness.

Opponents of youth curfews are not convinced that such programs actually work. They point to studies that show no direct link exists between juvenile crime rates and the enforcement of youth curfews. Instead, these studies show other factors (for example, population shifts and economic changes) have more impact on youth crime than do curfews. Additionally, these studies found that most juvenile crime takes place between 3 p.m. and 8 p.m.—after students are released from school and before working parents return home—rather than during curfew hours.

Youth curfews, say their advocates, can support zero-tolerance policing. This strategy is based on the theory that low-level crimes such as graffiti-tagging, window breaking, and drug dealing (all common juvenile offenses) can encourage development of a lawless environment where more serious crimes can flourish. Opponents suggest that imposing youth curfews has great potential for abuse and may turn generally law-abiding young people into criminals. They note that more American children are charged with curfew offenses than with any other crime. They also point out that statistics from U.S. communities suggest that the police arrest more non-white than white youth for curfew violations. They also say that curfews affect the poor more harshly: because youth in poor neighborhoods have fewer places to play or “hang out” safely, their only option is staying on the streets. Once burdened by a criminal record, many of these young people cross a psychological boundary, perceiving themselves as outlaws. A criminal record reduces the employment opportunities for youth and scars their futures. Enforcement of youth curfews can lead to deterioration in police-youth relations.

2. The Rights of Young and Older Citizens.

Opponents of youth curfews say that these policies infringe upon the individual rights and liberties of young people. Children, they say, have the right to freedom of movement and assembly. Curfews hurt these rights. Young people, particularly teenagers, have legitimate reasons to be out at night without adults. Many hold after school jobs. Others participate in group activities at churches, youth clubs, or sports arenas.

Young citizens cannot learn how to be responsible unless they have opportunities to act responsibly. Opponents of curfews also note that this kind of law treats all young people as potential law breakers. While only 0.2 percent of youth in the United States commit serious offenses, youth curfews limit the remaining 99.8 percent of young people who seek to engage in legitimate activities during nighttime hours. Moreover, curfew laws tend to discriminate by age, despite the fact that young people commit fewer crimes than adults.

Supporters of youth curfews agree that such programs take the law-abiding majority of young people off the streets. They see this restriction, however, as a protection and an advantage: it protects law-abiding youth from law-breakers, and it gives the police the advantage of focusing their resources on only those few young people actively breaking the law. Balancing the rights and safety needs of youth and adults remains a challenge.

CONCLUSION

In early 2009 the Chief Minister of Perlis (Malaysia) announced his intention to enforce youth curfew. It was intended to reduce crime rates and prevent youths from getting involved with immoral activities. However, his intention has been heavily criticized. Some agreed with him, including the Pemuda UMNO Perlis, but most disagreed.

The biggest challenge to enforcement of youth curfew is the Federal Constitution. It has been stated in many cases[13] and in the Federal Constitution itself that any subsidiary laws which contradict the Federal Constitution, the later shall prevail[14]. Hence, until the Federal Constitution is amended, there is no guarantee for enforcement of youth curfew laws to be practicable in Malaysia.

*original document has footnotes. Please e-mail me at mahyuddindaud86@yahoo.com if you would like to have a copy of this document.

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