This article first appeared in the St. Louis Beacon, Oct. 5, 2012 - Last week, East St. Louis Mayor Alvin Parks Jr. announced an executive emergency curfew on those 17 years old and under, which, among other restrictions, will have police arrest and jail juveniles between the hours of 8 a.m. and 3:30 p.m. as well as stop and randomly search vehicles for drugs, weapons and open alcohol containers. Furthermore, police will be checking pedestrians, bicyclists and skateboarders for alcohol, and arresting citizens who cannot produce a state-issued ID.
These sweeping measures come in response to recent violence in the East St. Louis area. Curiously, however, none of the violence being used to support the order involved juvenile perpetrators or victims, except for a 14-year-old boy who was shot outside his home during daylight hours while home on school suspension. Yet this case raises questions about how this plan is supposed to protect juveniles. After all, this 14 year old was home legitimately; and if his assailant was 18 or older, the curfew would not even implicate this case. But more importantly, is the curfew itself constitutional?
Of course, other cities establishing curfew restrictions have been challenged on constitutional grounds, including on 1st, 4th, 9th, and 14th amendment grounds. Challenges to the East St. Louis curfew may very well involve violations of freedom of assembly, freedom of movement, freedom from unreasonable search and seizure, as well as violations of due process and equal protection under the law. As fundamental rights, these must be weighed against the city’s compelling interests, but must not unnecessarily restrict the rights of citizens.
As it stands, the sweeping nature of the order and ad-hoc exceptions and amendments leave this curfew on shaky constitutional grounds. Successful curfew laws around the country have been more thoughtful and methodical, and have backed curfew restrictions with data about incidences of specific crimes involving juveniles, times of day and locations where the crimes were committed, and explicit exceptions to indicate the intent of limiting youth crime and victimization in the least restrictive manner. As the mayor’s team has considerably amended the original plan, citizens are likely to be guessing about crucial details; even more troublesome is that the other curfew laws have typically addressed juvenile crime—here the juvenile crackdown is admittedly in response to adult crimes.
To be sure, after its first weekend in effect, Mayor Parks praised the curfew as a “success,” announcing that four teens had been arrested for violating the curfew in connection to a burglary. This claim allowed him to announce that not only was the curfew a success, but that it was also preventing crime, since according to the mayor, the juveniles “were actually breaking into a home.” Such statements are misleading since there has been no formal complaint, trial, or determination guilt—only an arrest and the words of police. How is the curfew fighting crime if “actually” has yet to be determined? This is “actually” a court’s to decide, not the mayor’s.
Of the current plan’s most troubling aspects, however, is the random stop and search of vehicles absent probable cause, which is at odds with the 4th Amendment’s right to protection from “unreasonable” search and seizure. In light of these constitutional issues, how do the police intend to accomplish this practically? Will there will be random roadside checks or will police just stop citizens on a pretext and use that as a means to search the vehicle? These questions raise a number of concerns and reiterate the separation of powers question — here whether the executive has usurped the legislative authority to make law.
The East St. Louis plan sits in contrast to cities that have established successful city curfews premised on protecting juveniles. These plans were established with curfew centers or other community centers to hold curfew violators until pick-up by a parent or guardian; such measures demonstrate a plan trying to protect rather than punish. Others cities have staffed centers with community social service providers to provide intervention services for juveniles and their families. These plans often complement curfews with recreational, educational, and job opportunities for offenders, as well as gang and drug rehabilitation, and telephone hotlines for community questions about the curfew.
In light of measures other cities have enacted to minimize violence and crime for juveniles, the East Saint Louis plan itself looks juvenile. Given that there is little to no empirical research on whether curfews do in fact reduce crime and violence, a flawed plan is likely to do more harm than good. Moreover, one might wonder about the unintended consequences of the curfew, including any rise in domestic violence or during non-curfew hours. The East Saint Louis plan is haphazard, reactionary, and lacks proper design and implementation. The idea that arresting and jailing a juvenile is for the safety of the juvenile will be a hard sell to anyone familiar with the justice system, and courts are no exception.
SpearIt is an assistant professor at Saint Louis University School of Law.