Maryland’s annual legislative session began three weeks ago, but elected officials in the House of Delegates Judiciary Committee and the Senate Judicial Proceedings Committee have already heard hearings on a number of bills, many of which incorporate strong policies advancing sensible, bipartisan criminal justice reform. House Bill 269, cross-filed as Senate Bill 53, is just the kind of commonsense policy Maryland legislators across the political spectrum can and should support.

Known as the Child Interrogation Protection Act, HB 269 would ensure Maryland young people have the full protection of their Miranda Rights. Specifically, the bill would require that before a police officer begins questioning a young person, two conditions are met: the officer must inform the young person’s parents or guardians about the arrest; and the young person must have a conversation with a defense attorney or public defender. As of this writing, both the House Judiciary Committee and the Senate Judicial Proceedings Committee have heard public testimony on the bill, and it awaits a vote in each.

What are Miranda Rights?

Since the Supreme Court decided Miranda v. Arizona in 1966, all individuals being questioned by law enforcement have been entitled to four warnings:

In the 1967 decision In re Gault, the Supreme Court affirmed that young people under 18 years old are entitled to Miranda Rights as well. But too often, youth simply do not exercise their Miranda Rights. Ninety percent of youth waive their Miranda Rights entirely, and for those under 14, the percentage increases to 95. Research suggests this may be because youth, particularly youth of color, do not trust police to uphold or respect their rights, even if they are invoked. Young people under stress may also have a more difficult time processing information than adults in the same situation, and consequently, they focus on short-term goals rather than long-term consequences. Youth are more likely to waive their constitutional rights not only because they may fail to understand them, but also because they fail to appreciate how consequential they are.

Consequences of Voided Miranda Rights

Waiving Miranda Rights has acute consequences, both for youth accused of wrongdoing and for the justice process. Defense attorneys can advise youth not to speak when it would not benefit their cases; thus, when Miranda Rights are voided, youth run the risk of undercutting the context of the situation with statements made during interrogation.

Even more consequential to the justice process, though, is the possibility of extracting a false confession, and without a defense attorney present, this is especially significant. While some prosecutors say there is no evidence youth do not understand “you have the right to remain silent,” this obscures the intentional practices that officers use to elicit confessions. For decades, most police officers have used what is known as the Reid technique to interrogate suspects and persons of interest, in which they utilize specific procedures to procure statements of guilt, including isolation, evidence implication and the encouragement of confession. Research only recently began revealing just how much more susceptible children are to false confessions when faced with the Reid technique. One study examined 340 exonerations and found 42 percent of young people had falsely confessed to an offense, compared with only 13 percent of adults. Even the company that created the technique now cautions it should only be used with juvenile suspects whom the officer is confident committed the offense being investigated.

False confessions are not a boon to police or prosecutors. After all, in an ideal world, the objective of prosecutors is a lofty one: they are to pursue justice, not conviction. If there is insufficient evidence of wrongdoing, it is the prosecutor’s duty to drop the case. From an ethical perspective, false confessions undercut the pursuit of justice, unleashing a litany of undeserved consequences on an innocent person, not the least of which is possible imprisonment in addition to post-conviction difficulties, such as finding employment or pursuing higher education.

A Proposed Fix in Maryland

By requiring a defense attorney to consult with young people prior to police interrogation, and by requiring a parent or guardian to be informed about a child’s arrest, House Bill 269 would not only put the defense of Maryland youth on an even playing field; it would also help forestall the miscarriage of justice caused by a false confession. Maryland would not be the first to pass such legislation. Laws requiring youth to consult with a defense attorney prior to interrogation went into effect in California in 2016 and in Washington last month, and similar legislation has been introduced in Oregon. In fact, Maryland introduced the same bill last year, and while it passed the full House of Delegates, it did not receive a vote in the Senate committee.

In the 55 years since the U.S. Supreme Court affirmed that young people are constitutionally entitled to Miranda Rights, the truism that youth are not “little adults” has become clear both socially and scientifically. For youth under 18 to take full advantage of their rights, states must require police officers to do more than simply read off Miranda warnings that will likely be misunderstood and underappreciated. Bringing a parent or guardian into the situation and requiring the young person to have a consultation with a defense attorney, as House Bill 269/Senate Bill 53 does, will help ensure young people have a fair shot at a strong defense in any justice system proceedings.

Image credit: zef art

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