November 15, 2019
Memorandum to the Public and BPD Members
RE: Draft Policy 1207, Youth Interrogations
https://www.powerdms.com/public/BALTIMOREMD/documents/629464

The Baltimore Police Department, the U.S. Department of Justice (DOJ) and the Monitoring Team are releasing the below draft document for public comment. This policy reflects months of collaboration between the BPD, DOJ and the Monitoring Team. The public comment period for this policy is October 15, 2019 – November 15, 2019. Public feedback should be directed to BPU@baltimorepolice.org or by clicking the link above.

Following the public comment period, the parties will consider whether further revisions are appropriate in light of the comments received. The Department will post the revised policy for a second public comment period from November 27, 2019 to December 13, 2019. BPD, DOJ, and the Monitoring Team are still discussing these issues: specific requirements around parental consent/presence for interrogations of 16- and 17-year-olds, and limitations on interrogation tactics for 16- and 17-year-olds. All public and member feedback is greatly appreciated and will be wholly considered as the parties work to finalize this document.

My name is Nila Bala. I am the Associate Director for Criminal Justice Policy at the R Street Institute—a nonprofit, nonpartisan public policy research organization (think tank)—and a former public defender of Baltimore City. The R Street Institute’s mission is to engage in policy research and outreach to promote free markets and limited, effective government in many areas, including juvenile justice reform. Draft Policy 1207, regarding Youth Interrogations, is of special interest to us.

We appreciate that some of the proposed measures take into account that children are fundamentally different from adults and should not be subjected to interrogation processes and techniques designed for adults. However, a number of the measures proposed do not go far enough to acknowledge the developmental differences between children and adults.

It is in everyone’s best interest to take all precautions and respect best practices when conducting interrogations of children. In an ideal scenario, children’s rights would be respected, safeguarding them from trauma that can be experienced during interrogations. Additionally, public safety would be preserved since inappropriate techniques can lead to false confessions and harm relationships between the police and communities. We would propose the following revisions:

The current draft language does not include specific training on adolescent development for officers, nor does it require a person on staff with specific child development experience. This is the largest revision necessary to the draft language. While the current language recommends the use of open-ended questions and simple sentences, these instructions do not sufficiently capture all the nuances of communicating well with youth. Additionally, the draft document makes clear (on page 2) that the Supreme Court has stated that where a reasonable adult might feel free to leave, the same standard does not apply to children. It is not enough simply to state this standard—officers must actually be able to interpret and implement it, which requires special training and insight.

Officers at the academy level spend, on average, less than 1 percent of their time learning how to police youth. The ideal policy would incorporate more training for officers at academy. It would also include a child development specialist on staff to ensure interviews and interrogations are age-appropriate and trauma-informed. We also believe that the department’s field training program should formally train new officers on how to communicate with children, and officers should be evaluated on this skill before their probationary period has ended. Further, this skills training should be continuous throughout an officer’s career and professional development training.

Officers should explicitly inform youth when they are free or not free to go. The current draft on page 2 describes circumstances to discern whether a person is under custody or not (for example, stating a person might be in custody if they are handcuffed, confronted with evidence of criminal activity or hear an officer express belief in the person’s guilt). Rather than requiring youth to guess if they are free to leave, the onus should be on law enforcement to clearly convey when a youth can or cannot leave an interrogation.

Attorneys should be provided for all children during interrogations. The current draft language only contemplates providing an opportunity to consult with counsel for children under the age of 15 or who are mentally disabled. The reality is that even older youth can find Miranda warnings difficult to understand. Providing an attorney to all youth would ensure interrogations are completed in a developmentally appropriate manner, and would benefit law enforcement as well since statements taken in the presence of counsel are more likely to be found admissible.

Interrogations should proceed with a parent/guardian present, excepting those conditions already noted in the document. Currently, the language allows for supervisory approval for the interrogation of those over 16 before contact has been made with a parent or guardian. When combined with the draft language that would allow interrogations without the opportunity to consult a lawyer, there is a serious risk that just because a youth is 16, they could be forced to proceed without an adult advocate. 16-year-olds are not adults—we do not treat them as adults in any aspect of the law. They are still maturing and have not reached the age of criminal majority. Thus, parent involvement is crucial in interviews and interrogations.

The use of deception with all children should be strictly prohibited. Currently, draft language distinguishes between children fifteen and younger and children over sixteen. However, deception has clear harms even for older children. Children are much more likely to confess falsely than adults—and these false confessions hurt not only children but the integrity of the overall system. Policies that address this issue should mirror those propounded by the International Association of Chiefs of Police, who have acknowledged that standard deception practices employed by law enforcement are inappropriate when interviewing children. As per the IACP’s recommendations, interrogations should be limited to a few hours and should completely avoid deception, false promises of leniency and threats of harm.

The research is clear that young people are a vulnerable population, so special care should be taken when they are questioned. Bringing the draft policies in line with evidence-based best practices will not only better serve children, but will lead to more just and fair outcomes.