Following the 1960’s riots and curfews in cities across America, variations of this question remained a refrain on TV for decades. This simple yet ominous message evoked dread among parents concerned for their children’s welfare. Decades later, it’s a question parents across Maryland should ask themselves every day.
Imagine it’s a regular school day. It’s 11 a.m., and your fourth-grader should be sitting in his math class. Instead of solving addition and subtraction problems, your fourth-grader is plucked out of class and questioned by police — all without your knowledge. Hours later, police call to tell you that your son was questioned by police but, don’t worry, it was determined that he had not committed a crime because he did not attempt to spend the money.
During the Maryland 2018-2019 school year, 69 elementary schoolers, 1,029 middle schoolers and 1,912 high schoolers were arrested — numbers that do not reflect the number of youth questioned but not arrested by police. Under Maryland law, police can detain and interrogate a child without a parent’s presence or knowledge that their child is being questioned or arrested.
Further, Maryland police are not required to ensure children understand their Miranda rights before being interrogated, nor what it means to “waive” their rights, increasing the likelihood of self-incrimination. These are a few reasons why Maryland’s juvenile justice system is ranked by Human Rights for Kids as one of the worst protectors of children’s human rights (our cohort includes Alabama, Georgia, Mississippi, Tennessee and Wyoming).
Maryland has the opportunity to take the first step toward protecting children’s inherent rights this year by passing the Juvenile Interrogation Protection Act. JIPA would put an end to child interrogation without a parent’s knowledge and without an attorney present. The bill protects against false confessions by giving juveniles access to counsel prior to any custodial interrogation.
At a minimum, it sets up a procedure for law enforcement to actually notify, not just make reasonable efforts to contact, a parent or guardian prior to an interrogation. These two requirements address the pitfalls that historically and wrongfully incarcerated our youth and ensure their constitutional rights are protected.
In the landmark case Miranda v. Arizona, the U.S. Supreme Court held that the confrontational nature of custodial interrogations requires police to inform suspects — including juveniles — of their Fifth Amendment rights before interrogation. Those rights include the right to an attorney and to remain silent.
Compared with adults, juveniles are far less likely to assert or even understand their rights. As the Supreme Court determined in Miller v. Alabama, youthful offenders possess a “diminished capacity” and are unable to fully appreciate the risks and consequences of their actions.
In addition, research has found that minors are uniquely susceptible to coercive questioning techniques and interrogation tactics employed by police. In fact, a study of exonerations by the University of Michigan Law School found that “42 percent of exonerated juveniles had falsely confessed, compared with 13 percent of adults.” Over the years, science, courts and doctors have researched and documented the inherent differences between children and adults in decision-making capacities, reflecting the rationale for separate justice systems for minors and adults.
Yet, current Maryland law treats our youth as though they have the same decision-making capacity as adults. JIPA acknowledges that a minor’s brain development and life experience are vastly different from that of adults.
This bill, requiring juveniles to have the assistance of counsel to understand their rights, is in line with what the courts have recognized, science has proven and most states have already implemented.
Some opponents of JIPA may argue that it hampers the prosecution of crimes against juveniles, claiming that some juvenile offenders may “get away” because their attorney may advise them of their rights and they may choose not to confess.
We’ve heard this argument before; it was raised by dissenting justices in Miranda, fearing that requiring affirmative warnings (a “hazardous experiment”) would inflict untold harm on law enforcement in their ability to do their jobs.
Today, we expect nothing less than complete “Mirandizing” prior to interrogation. Others may argue that the JIPA parent notification requirement will delay a speedy interrogation during a critical situation. The reality is that the current practice of interrogating children without counsel or guardian notification only heightens the chance of a false confession, enabling the actual perpetrators to wander the streets. In any event, the likelihood of a false confession is too high to forgo procedural safeguards.
If we wish for Maryland to have a fair and equitable justice system, we must ensure that youth are not coerced and incarcerated simply because they are children and do not understand their constitutional rights.
Use your voice to urge the chair of the House Judiciary Committee, Del. Luke Clippinger, to bring the Juvenile Interrogation Protection Act to a vote and to ask your legislators to vote in favor of passing this legislation.
No matter the hour of the day, how we treat and care for our youth is a reflection of the soul of our state.
— CHRIS JENNISON, EBBY STOUTMILES, TRACEY FRIEDLANDER, KIM ALFRIEND AND FRANCHA DAVIS
Jennison is an attorney and chair of the Montgomery County Commission on Juvenile Justice. Stoutmiles is vice chair of the Montgomery County Commission on Juvenile Justice and is state policy advocate at the Juvenile Law Center. Friedlander is a youth and family advocate and commissioner on the Montgomery County Commission on Juvenile Justice. Alfriend is an attorney and commissioner on the Montgomery County Commission on Juvenile Justice. Davis is a juvenile advocate and commissioner on the Montgomery County Commission on Juvenile Justice.