A Critical Look at Philadelphia’s Curfew Law
Written by Kimberly Stratton, ’19
A curfew is a law, regulation, or ordinance that forbids a particular class of people—typically, minors—from being outdoors in public places during prohibited times. This paper will review the political foundation for curfew laws and then examine their inherent flaws. A critical review of the application of curfew laws will reveal the disparate impact of these laws on low-income families, along with their inability to reduce juvenile crime. The paper will conclude by discussing a potential constitutional challenge to Philadelphia’s curfew law.
Curfews gained popularity in the 1990s as Americans became increasingly concerned with urban crime and the breakdown of the nuclear family. At this time, news outlets sensationally covered episodes of juvenile crime.[1] Experts opined that absentee fathers and the rise of the single-mother household caused juvenile delinquency.[2] Politicians relied on unchallenged statistics to assert that America’s youth were on the streets unsupervised and committing crime.[3] One notable campaign was George W. Bush’s run for Texas governor in 1994, where he promised strict law and order, including tougher punishment for juvenile offenders.[4] In 1996, while speaking in support of her husband’s Violent Crime Control and Law Enforcement Act, Hillary Clinton referred to alleged child criminals as “superpredators.”[5] At the core of this political rhetoric was the belief that some parents failed to exercise control over their children. According to politicians, the ideal parent would know their child’s location at all times and would never allow their child to be out in public at night while unchaperoned. Despite the considerable passage of time, curfews enacted in the 1990s are still enforced today.
Philadelphia’s curfew can be found in Title 10 of the Philadelphia Code of Ordinances. In its preamble, City Council legislators declared that a substantial increase in crimes committed by juveniles was the result of “the large number of minors who are permitted to remain in public places and in certain establishments during night hours without adult supervision.”[6] Legislators decided that juvenile delinquency could be reduced by regulating the hours during which juveniles could appear in public and by imposing duties and responsibilities on parents or guardians.[7]
In Philadelphia, children under thirteen are prohibited from appearing in public between the hours of 9:00 p.m. and 6:00 a.m. on weekdays.[8] For children thirteen and older, the prohibition begins at 10:30 p.m.[9] On the weekend, the prohibition begins at 12:00 a.m. for minors thirteen and older, and 10:00 p.m. for minors under thirteen.[10] During the regulated time, it is unlawful for a minor to remain in or upon any public place or establishment unless the minor “is accompanied by a parent, is doing an errand or other legitimate business as directed by the minor’s parents, or is engaged in gainful lawful employment during the curfew hours or is on active duty in the Armed Service of the United States.”[11]
A police officer who comes upon a minor in violation of the curfew ordinance must record the minor’s name, address, and age, as well as the identity of the parent or guardian responsible for the minor.[12] The police officer may take the minor home, take the minor to the district police station, or release the minor.[13] The officer’s decision is based on what he believes is necessary to “best protect the interest of the minor and the community.”[14] The officer’s decision is not based on the minor’s rights.
Any minor who violates the evening curfew ordinance is fined $250 for the first violation and between $300 and $500 for each succeeding violation.[15] Any parent who knowingly permits a child to be in a public place during the prohibited hours can be fined a separate $150 for the first noticed violation, and between $300 and $500 for each successive violation.[16] The minor’s and parent’s information are sent to the Juvenile Bureau for the issuance of a notice of violation and any further processing.[17]
Since the penalty for curfew violation is primarily a monetary penalty, curfew laws render parents financially responsible for the minor’s unsupervised public appearance during prohibited times. It appears that legislators wanted to punish parents who did not keep a watchful eye on their child, or at the very least, encourage parents to keep track of their child’s activity. Historically, Americans believed the ideal parent was a member of a two-parent household, with at least one parent able to devote a substantial amount of time to homemaking and childrearing. This ideology has not waivered much today. A Pew Research Center survey conducted in July 2016 revealed that most American adults believed a child was better off when one parent stayed home.[18] The survey results were, however, disparate across racial lines. White Americans agreed that one parent should stay home, while black Americans were less likely to say a child is better off with one parent at home.[19]
In reality, a substantial percentage of two-parent households consist of two working parents.[20] Despite the two-parent household ideal highlighted above, 34% of American children live in a single-parent home.[21] Moreover, today more children are born into single-parent families where the sole parent—often the mother—is working full-time.[22] Considering this along with other socioeconomic factors, it is apparent that curfew laws and their fines are especially problematic for low-income families and homeless youth.[23] Notably, critics of these laws report that minority single-mother homes are most affected by curfew enforcement.[24] Of these single-parent families, many are low-income.[25]
Locally, 26% of Philadelphians live below the federal poverty level.[26] In 2016, the Juvenile Law Center (JLC) in Philadelphia examined legal financial obligations imposed on families by the juvenile justice system.[27] The JLC revealed that fines were imposed without an inquiry into the family’s ability to pay.[28] Many families penalized by fines were low-income. Fines contributed to the financial instability of the home, and sometimes caused rifts within the family. The inability to pay penalties correlated to increased rates of recidivism.[29] Added to this paradigm is the fact that low-income workers often work unconventional hours, making the application of curfew laws even more problematic.
Local legislators were aware that the curfew had the potential to punish working single-parent families and at one point introduced an exception to its application if the parent was engaged in “gainful lawful employment” at the time of the violation. Legislators eventually removed the exception in 2000.[30] The curfew was additionally amended to increase the penalties for violations.[31] Perhaps legislators believed higher penalties would result in less juvenile crime.
In reality, curfew is an ineffective tool to reduce juvenile crime. Curfew violations cannot be attributed to the parent. Further, juvenile crime experts maintain that juvenile crime peaks between the afterschool hours of 2:00 p.m. to 6:00 p.m.[32] This is true in Philadelphia where the most alarming crimes committed by juveniles occur during those hours.[33] Thus, the most frightening crimes committed by juveniles—flash mobs and knock out games—are not prevented by curfew.
Despite disparate application and ineffectiveness, Philadelphia’s curfew has never been challenged in a court of law. For a constitutional challenge in a nearby jurisdiction, we can look to Gaffney v. City of Allentown.[34] In 1997, soon after the City of Allentown enacted a curfew almost identical to Philadelphia’s curfew, two plaintiff minors challenged its constitutionality on Fourteenth Amendment due process grounds.[35] The U.S. District Court for the Eastern District of Pennsylvania acknowledged that minors had the fundamental right to move freely, which triggered a high strict scrutiny analysis from the court.[36]
In order to survive strict scrutiny, the City had to prove they possessed a compelling interest for intruding on the minor’s right to freedom of movement and the intrusion had to be narrowly tailored to achieve the City’s interest.[37] The City’s stated interest in enacting the curfew was to protect minors from nighttime crime, to prevent minors from committing nighttime crime, and to aid parental control.[38] Both the City and the plaintiff minors agreed that preventing crime and protecting minors from crime were compelling interests.[39] Because of the parties’ agreement, the court only analyzed whether the curfew was narrowly tailored to achieve the City’s interest.[40]
The City could not demonstrate that the curfew was narrowly tailored. The City presented the court with expert testimony from the Assistant Chief of Police and crime statistics.[41] The Assistant Chief of Police testified that he believed a danger existed for minors during curfew hours, but he had no foundation for his opinion.[42] The court disregarded his testimony, opining that the beliefs of an individual without more were insufficient to meet strict scrutiny.[43] Additionally, a review of the City’s crime statistics proved the curfew had no significant effect on reducing overall juvenile crime.[44] Juvenile crime actually increased after the curfew ordinance was enacted and enforced, leading the court to determine that the curfew ordinance was an ineffective tool to reduce juvenile crime.[45]
If legally challenged, it is reasonable to assume that the City of Philadelphia would manifest the same interest as the City of Allentown. Hopefully the court would be consistent with its decision in Gaffney and be troubled by any implicit assumption that Philadelphia parents do not exercise control of their children in a reasoned and beneficial manner.[46] No one would doubt that preventing victimhood and criminal acts are compelling interests. Accordingly, the City would have to establish the curfew as narrowly tailored to meet the City’s interests.
The Philadelphia curfew would likely fail the narrowly tailored examination. The City of Philadelphia would have to produce the legislative findings (i.e., a rise in juvenile delinquency) contained in the ordinance’s preamble. The City would be confronted with expert studies proving that curfew does nothing to curb juvenile crime. Moreover, the City would be forced to examine its lack of recreational activities for minors during the peak hours of juvenile crime. Philadelphians harmed by the disparate application of the curfew would have an additional equal protection challenge to the curfew. The City would then be confronted with the low-income single-parent minority families most exposed to curfew enforcement.
In summary, because of the disparate impact they impose, curfew laws cannot persist unchallenged. Legislators must be required to demonstrate the necessity of such curfews along with a palpable reduction in juvenile crime during statutorily prohibited hours. Otherwise, curfew laws in Philadelphia will be held unconstitutional.
[1] See Elena R. Laskin, How Parental Liability Statutes Criminalize and Stigmatize Minority Mothers, 37 Am. Crim. L. Rev. 1195, 1200 (2000) (positing that media depiction of juvenile crime caused Americans to believe that crime was a critical problem).
[2] Id. at 1208.
[3] See id. at 1202–03 (referencing statistics from sources such as the Department of Justice and the Federal Bureau of Investigation).
[4] See Fox Butterfield, On the Record: Governor Bush on Crime; Bush’s Law and Order Adds Up to Tough and Popular, N.Y. Times Archives (Aug. 18, 1999), https://www.nytimes.com/1999/08/18/us/record-governor-bush-crime-bush-s-law-order-adds-up-tough-popular.html (discussing George W. Bush’s 1994 campaign).
[5] 1996: Hillary Clinton on “Superpredators”, YouTube (Feb. 25, 2016), https://www.youtube.com/watch?time_continue=75&v=j0uCrA7ePno (originally broadcasted by C-Span on Jan. 28, 1996).
[6] Philadelphia, Pa., Phila., Pa., Code § 10-301(1)(b) (2016).
[7] Phila., Pa., Code § 10-301(c).
[8] Phila., Pa., Code § 10-303(1).
[9] Id.
[10] Id.
[11] Id.
[12] Phila., Pa., Code § 10-306(1)(a).
[13] Phila., Pa., Code § 10-306(1)(b)(i)–(ii).
[14] Phila., Pa., Code § 10-306(1)(b).
[15] Phila., Pa., Code § 10-306(3).
[16] Phila., Pa., Code § 10-306(4).
[17] Phila., Pa., Code § 10-306(2).
[18] Nikki Graf, Most Americans Say Children Are Better Off with a Parent at Home, Pew Research Ctr. (Oct. 10, 2016), http://www.pewresearch.org/fact-tank/2016/10/10/most-americans-say-children-are-better-off-with-a-parent-at-home/.
[19] Id.
[20] A Pew study found that for 46% of families surveyed, both parents work full-time. Raising Kids and Running the Household: How Working Parents Share the Load, Pew Research Ctr. (Nov. 4, 2015), http://www.pewsocialtrends.org/2015/11/04/raising-kids-and-running-a-household-how-working-parents-share-the-load/.
[21] Gretchen Livingston, Fewer than Half of U.S. Kids Today Live in a ‘Traditional’ Family, Pew Research Ctr. (Dec. 22, 2014), http://www.pewresearch.org/fact-tank/2014/12/22/less-than-half-of-u-s-kids-today-live-in-a-traditional-family/.
[22] Parenting in America: The American Family Today, Pew Research Ctr. (Dec. 17, 2015), https://www.pewsocialtrends.org/2015/12/17/1-the-american-family-today/.
[23] Erik Eckholm, Court Costs Entrap Nonwhite, Poor Juvenile Offenders, N.Y. Times (Aug. 31, 2016), https://www.nytimes.com/2016/09/01/us/court-costs-entrap-nonwhite-poor-juvenile-offenders.html; Karen Dolan with Jodi L. Carr, Inst. for Policy Studies, The Poor Get Prison: The Alarming Spread of the Criminalization of Poverty 25 (2015).
[24] See generally Tamar R. Birckhead, Access to Justice: Evolving Standards in Juvenile Justice: From Gault to Grahamand Beyond: Delinquent by Reason of Poverty, 38 Wash. U. J.L. & Pol’y 53 (2012). This is especially true in Pennsylvania, where the largest—and poorest—city in the state has a curfew ordinance that differs significantly from those of neighboring suburbs. In Montgomery County, a first-time violation is excused with a verbal warning and the penalty for a second violation is a mere $25.00. See Montgomery County, Pa., Montgomery County Code, ch. 83 (2019), https://ecode360.com/11512707 (chapter entitled “Curfew”). Bucks County does not have a juvenile curfew ordinance, but at least one township within the county has an ordinance similar to Philadelphia, albeit one that does not reference penalties for curfew violations. See Curfew, Middletown Bucks County, Pa., http://www.middletownbucks.org/government/departments/police/safety_and_crime_prevention/curfew.php (last visited Sept. 27, 2018).
[25] Birckhead, supra note 24, at 82–83.
[26] Philadelphia has the highest poverty rate of the nation’s ten largest cities. Pew Charitable Trusts, Philadelphia: The State of the City 1 (2016), https://www.pewtrusts.org/-/media/assets/2016/03/philadelphia_the_state_of_the_city_2016.pdf (indicating that 400,000 Philadelphians live below the poverty level).
[27] Jessica Feierman et al., Debtors’ Prison for Kids?: The High Cost of Fines and Fees in the Juvenile Justice System 3 (2016), http://debtorsprison.jlc.org/documents/JLC-Debtors-Prison.pdf.
[28] See id. at 10–19 (displaying charts and descriptions showing systems that either impose mandatory fees or allow judicial determination of payment ability to play a factor in the fine).
[29] Id. at 7.
[30] Phila., Pa., Code § 10-306, amended by Bill No. 000313 (2000).
[31] Phila., Pa., Code § 10-306, amended by Bill No. 060441 (2006).
[32] David R. Katner, Symposium: Progressive Visions of the American Family: Delinquency and Daycare, 4 Harv. L. & Pol’y Rev. 49, 59 (2010) (citing Denise C. Gottfredson et al., The Timing of Delinquent Behavior and Its Implications for After-School Programs, 1 Criminology Pub. Pol’y 61, 62 (2001)).
[33] David Chang, Teens Arrested After Flash Mobs Attack Officer, Residents and Employees in Center City, NBC 10 (Nov. 19, 2017, 4:27 P.M.), https://www.nbcphiladelphia.com/news/local/Flash-Mob-Attacks-Teens-Arrested-Center-City-Philadelphia–458664403.html (reporting the flash mob took place on a Saturday at 7:00 p.m.); Dann Cuellar, Police: Subway Attack was Random, 6 ABC (Mar. 27, 2008), https://6abc.com/archive/6043617/ (reporting that murder of Sean Conroy by three teenagers happened at 2:30 p.m.); Colt Shaw, 3 Lincoln High Students Charged as Adults in Beating Death, Philly.com (Dec. 3, 2017), http://www2.philly.com/philly/news/crime/three-in-custody-in-beating-death-of-homeless-man-20171203.html (reporting that beating occurred at 5:55 p.m.); Dan Wing et al., 30 Arrested After Flash Mob Strikes Center City Philadelphia, CBS 3 Philly (Mar. 6, 2017, 11:55 P.M.), https://philadelphia.cbslocal.com/2017/03/06/philly-police-more-than-100-kids-participated-in-flash-mob-some-arrested/ (reporting the violent flash mob occurred at 5:30 p.m.).
[34] No. CIV.A. 97-4455, 1997 WL 597989 (E.D. Pa. Sept. 17, 1997).
[35] Id. at *2.
[36] Id. at *3.
[37] Id. at *5.
[38] Id.
[39] The parties agreed that parents needed help with control. The court strongly opposed this view, stating “the implicit assumption of curfew—that parents are not exercising control in a reasoned and beneficial manner—is troubling to the court.” Id.
[40] Id.
[41] Id. at *6.
[42] Id.
[43] Id. (citing Hodgson v. Minnesota, 497 U.S. 417, 463 (1990)).
[44] Id. at *8.
[45] Id.
[46] Id. at *5.