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June 29th, 2009
Freethought San Marcos: The irrational juvenile curfew

Freethought San Marcos: A column


When the city council re-enacted the juvenile curfew ordinance after it had inadvertently let it expire two years earlier, there was more than embarrassment on the dais and among the city administration.  There was irrationality in abundance.  Apparently, we need a juvenile curfew ordinance because we had one between 2004 and 2007.  It is only common sense–juveniles are less likely to commit crimes and to be victimized if they are not on the streets.  But in the absence of empirical data, common sense is in the eye of the beholder, or the mind of the proponent.

A provision in Texas law requires juvenile curfew ordinances to be re-enacted every three years or they are automatically repealed.  San Marcos’s curfew ordinance disappeared from the books in 2007, after three years had gone by since it was adopted and no one thought to have it re-enacted.  Of course, if common sense were really in play, somebody might have noticed.

The old ordinance, like the new one recently enacted, provided that juveniles under the age of 16 are not allowed on the streets under certain conditions between 11 p.m. and 6 a.m. on weekdays, and midnight to 6 a.m. on weekends.  The ordinance also prohibited juveniles to be out on the streets during the normal school hours of 9:30 a.m. and 2:30 p.m. Mondays through Fridays.  There are more than a dozen exceptions and defenses to the curfew requirement, including if the youth is accompanied by a parent, is traveling on employment-related business, is attending a school or religious activity, or is legally not a minor.

The exceptions and defenses in the ordinance are excellent provisions and in line with the sort of requirements courts have recognized as essential to make curfew restrictions on minors constitutional.  However, another factor the courts have recognized as essential for juvenile curfew ordinances to pass constitutional review is that there be demonstrable evidence that the curfew solves some public problem within the purview of the city.  In the case of such curfews, the courts have accepted that cities have a compelling interest in protecting the welfare of their children.  Without question, juvenile curfew ordinances are enacted to promote the safety and well-being of juveniles by reducing juvenile victimization, and they are aimed at reducing juvenile crime.

In the case of a Dallas curfew ordinance upheld by the Fifth Circuit Court of Appeals in 1993, the city of Dallas provided statistical information that tended to show that crimes committed by juveniles and crimes committed against juveniles were most likely to take place during the curfew hours.  For the three months after the Dallas ordinance went into effect, data showed that juvenile victimization during curfew hours dropped 17.7 percent, and juvenile arrests decreased 14.6 percent.  Based on the records I received from the city in response to a Public Information Act request, no comparable data were presented to the San Marcos City Council before it re-enacted the juvenile curfew ordinance.  In fact, the only data provided concerned the number of improper citations issued in 2007 and 2008 when the ordinance was expired.

This is not surprising.  It is doubtful that any data exist in support of the San Marcos curfew ordinance.  A 2003 article in the The ANNALS of the American Academy of Political and Social Science, which reviewed all of the published empirical research on juvenile curfews, finds that the evidence does not support the proposition that such curfews reduce juvenile crime or victimization.  While these results could be based on inadequate research, a more likely explanation for the failure of juvenile curfew ordinances to solve either problem can be found in reports of the Office of Juvenile Justice and Delinquency Prevention (OJJDP), a program of the Department of Justice.

The OJJDP finds that violent crime victimization of youth “is greatest between 3 p.m. and 4 p.m., fell to a lower level in the early evening, and declined substantially after 9 p.m.,” whereas adult victimization increases hourly throughout the day, “peaking between 9 p.m. and midnight.”  Robbery victimizations of youth “reach their highest levels between 7 p.m. and 9 p.m.”  OJJDP data show that “sexual assaults of juveniles peak at 8 a.m., noon, and 3 p.m.”

When it comes to committing violent crime, OJJDP data reveal that “violent crimes by juveniles occur most frequently in the hours immediately following close of school on school days.”  On non-school days, violent crime by juveniles “increases through the afternoon and early evening hours, peaking between 7 p.m. and 9 p.m.”  In fact, violent crime by juveniles during common curfew hours is only 14% of the total violent crime committed by juveniles.  Data for other crimes committed by juveniles, such as those committed while using a firearm, crimes that result in injury, and thefts occur most frequently at times other than during curfew hours.

The OJJDP suggests that “efforts to reduce juvenile crime after school would appear to have greater potential to decrease a community’s violent crime rate than do juvenile curfews.”  Of course, there could be other reasons why most juvenile crime and victimization occur outside of curfew hours–maybe curfews are effective–but there are no data to support that conclusion.

The authors of the American Academy study suggest two approaches to curfews and juvenile crime and victimization that are not found in the San Marcos juvenile curfew ordinance.  There is some minimal evidence that suggests that juvenile curfews that are “short-term, highly focused, and geographically limited” might have a better chance of reducing juvenile crime than general curfews.  Focusing curfews for limited periods in geographical areas that have become hot spots of juvenile crime may be more effective than late-night curfews.  Another effective use of juvenile curfews is “to identify children and families who can benefit from additional social services.”  The San Marcos ordinance does neither of these things

The authors of the American Academy study conclude, “Ardent supporters of curfew laws, including numerous police administrators and perhaps much of the general public, likely will resist the conclusion that curfews fail to reduce juvenile crime. The seduction of commonsense reasoning sometimes is too strong to be swayed by scientific evidence, which by nature is always open to reconsideration.

It is much easier to appeal to “common sense” arguments than to develop valid scientific evidence to support public policy positions, which is probably why we have a juvenile curfew ordinance in San Marcos that is unsupported by empirical evidence that it is effective in achieving its law enforcement purposes.  Legislating based on common perception, rather than on demonstrable facts, is irrational, and it may be unconstitutional, as well.

© Freethought San Marcos, Lamar W. Hankins

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