Orange County Voices : COMMENTARY ON CURFEWS : Restrictions on Youths Strain Families, Burden Government : Two questions on such laws for juveniles: Are they constitutional? Are they wise? They seem to be neither.

It would be difficult to argue against the proposition that a youth, say of 14 years, should not be on the streets between such hours as 11 p.m. and 6 a.m., except under extraordinary circumstances. One could not readily imagine, excepting those circumstances, that he or she would be up to any good, especially given the typical behavioral excesses expected of youths these days. Add to that the experiences in several cities, most dramatically Detroit, Newark and Atlanta over recent years, of crime on the part of youngsters during such night hours, and the thought of imposing curfew restrictions becomes understandable.

There has indeed been an increase in such thoughts and resulting enactments in recent decades, and quite noticeably in Orange County. But, it is worth noting, the use of laws to restrict movement on the streets at night is centuries old. It has been estimated, for example, that there were about 3,000 cities and towns in the United States with curfew ordinances for juveniles by the end of the 19th Century.

California state law says that a youth who violates an ordinance “establishing a curfew based solely on age” is a status, not a criminal, offender, meaning that he or she is in the same legal class as a habitual truant or one who refuses to obey the orders of parents or school authorities. While a status offender may be made a ward of the juvenile court, the state’s Welfare and Institutions Code greatly restricts the alternatives available for dealing with a ward in that class. It specifies that a status offender may not be detained in such secure facilities as juvenile halls beyond the periods (no more than 72 hours) necessary to return the child to parent or guardian. Moreover, the alternative of commitment to a juvenile home, camp or hall is available only to wards who have committed criminal type offenses.

Two questions stand out in evaluating juvenile curfew laws: Are they constitutional and are they wise? Courts and legal scholars remain divided on the issue of constitutionality. The first federal case dealing with that issue led to a decision upholding a curfew ordinance, but many state courts and other federal courts have reported conclusions conflicting with that one.

Interestingly, the question of constitutionality was debated in a 1994 issue of the American Bar Assn.; one attorney argued that such ordinances are intrinsically unconstitutional, while the other argued that it is possible to craft a constitutionally acceptable law. But even the latter attorney conceded that freedom of movement, including that of youngsters, is a fundamental right (“of the very essence of a scheme of ordered liberty” in the words of two prominent former members of the U.S. Supreme Court) that may be restricted by curfew ordinances only if they are “narrowly drawn” to further a “compelling state interest.” The implication is that the ordinance must specify a critical governmental goal and carefully exclude from coverage those kinds of actions by juveniles that have no relationship to achievement of that goal.

Thus, it would seem that if, for example, the critical goal is reduction of juvenile crime, there would be no basis for considering the following a violation of a curfew ordinance: A child of 16 who has never in the remotest shown either criminal behavior or gang affiliation is on the street where he or she lives during the forbidden night period. Yet, on testimony of my daughter, there has been harassment of her friends by the police as they moved, after the cutoff for curfew onset, between their cars and their houses. And, according to the same testimony, the police have not always been cordial, or even courteous, in their approaches. My reference, I emphasize, is to girls with impeccably proper manners and behavior.

What about the wisdom of such ordinances? The often stated reasons for passing such ordinances are: strengthen parental control of children; protect young people from the dangers of the streets at night, and protect the public from the risks of juvenile crime and mischief. (The unstated reasons are: We people in political office will show our constituents that we’re tough on crime, and if the parents can’t control those little monsters, we’ll do it for them). First, it is quite impossible for me to imagine how taking direct control away from parents strengthens their control. Second, if the danger perceived for the child at night on the streets is physical, then it would seem that even more strenuous efforts should be directed at keeping the more vulnerable elderly and disabled off the nocturnal streets. If juvenile vulnerability is considered mental in the sense of the danger of being exposed to emotional trauma, it is unclear why that likelihood is assumed to be greater at night.

Finally, there is no evidence that nocturnal curfews reduce incidents of juvenile crime. In fact, informal study after the enactment of a juvenile curfew ordinance in Detroit indicated that, while there resulted a decrease in juvenile crime during the curfew hours, the overall incidence of such crime actually went up. That would indicate time displacement.

There does remain the clear gain that youths who are restricted to the indoors after a certain hour cannot be nuisances, whether mischievous or not, to the adults who are outdoors. But at what price? The vast array of children on our streets, night and day, are your children and mine whose major offenses against society may be of the order of disobedience or sneaking a sip of wine. We want those children to have warm, friendly feelings toward the police and that, I am assured by my daughter, does not come about from harassment based on trivial infractions or, worse, misjudgment on the part of the police.

A second negative effect of curfew laws is in terms of cost and where the resources of the justice system should be expended.

To take a child into police custody, refer him or her to the probation department, have a juvenile court hearing, make the child a ward of the court, and then carry out one or more of the limited treatment alternatives available to the court for status offenders is a very expensive process. Since the resources of the justice system are severely limited as it is, expenditures to enforce curfew laws in that fashion must limit efforts to control juvenile criminal behavior, some of which is violent indeed.

As pointed out in a recent Times article, the mayor of Mission Viejo has contended, in a letter to the district attorney, that the juvenile court was routinely dismissing curfew referrals from that city.

The juvenile court judge denied that allegation, in very strong terms. It is my opinion that, except where there are most unusual complicating factors, all such referrals should routinely be dismissed, whether coming from Mission Viejo, Huntington Beach, or some other city.

Better still, where a city insists on a juvenile curfew ordinance, and it is not successfully challenged on constitutional grounds, all resulting cases should be handled informally at the police level.

The justice system has vastly more important matters to occupy its time and ensure its most limited resources.