316
O'Connor, J., concurring
where adults are concerned. "In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf—through incarceration, institutionalization, or other similar restraint of personal liberty—which is the 'deprivation of liberty' triggering the protections of the Due Process Clause . . . ." De-Shaney v. Winnebago County Dept. of Social Services, 489 U. S. 189, 200 (1989). The institutionalization of an adult by the government triggers heightened, substantive due process scrutiny. There must be a "sufficiently compelling" governmental interest to justify such action, usually a punitive interest in imprisoning the convicted criminal or a regulatory interest in forestalling danger to the community. United States v. Salerno, 481 U. S. 739, 748 (1987); see Foucha, supra, at 80-81.
Children, too, have a core liberty interest in remaining free from institutional confinement. In this respect, a child's constitutional "[f]reedom from bodily restraint" is no narrower than an adult's. Beginning with In re Gault, 387 U. S. 1 (1967), we consistently have rejected the assertion that "a child, unlike an adult, has a right 'not to liberty but to custody.' " Id., at 17. Gault held that a child in delinquency proceedings must be provided various procedural due process protections (notice of charges, right to counsel, right of confrontation and cross-examination, privilege against self-incrimination) when those proceedings may result in the child's institutional confinement. As we explained:
"Ultimately, however, we confront the reality of . . . the Juvenile Court process . . . . A boy is charged with misconduct. The boy is committed to an institution where he may be restrained of liberty for years. It is of no constitutional consequence—and of limited practical meaning—that the institution to which he is committed is called an Industrial School. The fact of the matter is that, however euphemistic the title, a 'receiving home'
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