Think back to yourself at 14 or 15 years old. You’ve just started high school. But you’re not at school now — you’ve been brought downtown for questioning at the police station.
A detective sits across the table. He says, “I’m just going to ask you some questions. You’ve got nothing to worry about. When you’re done, we can get you back to school. Before we talk, I’m going to tell you your rights, and then we can get this over with.”
He goes on to tell you that you have the right to remain silent (but mom always told you to respond if an adult asks you something). He says that anything you say can be used against you in a court of law (but he told you there was nothing to worry about). He says you have the right to an attorney (but you don’t know how to get one, and you know there’s no extra money at home). He also says you can get an attorney appointed to you (but how? What does that mean? He doesn’t say).
The detective asks if you understand your rights, and if you now wish to speak to the police without a lawyer present. You know the detective wants to ask you more questions, and you don’t want to make him mad. You don’t want to get in trouble. You just want to get out of here. What do you say?
The will and strength to say “I do not have to talk to you without a lawyer” to a detective is not something a reasonable person should expect of any child or teenager. Yet state laws do not uniformly protect children from that situation. Many young people are interrogated without lawyers or even a family member present.
The basic constitutional rights that Miranda provides are no doubt quite familiar to adults who work with youth or those involved in juvenile justice. But for the general public, the importance of Miranda rights for young people — and the urgent need of legal counsel before those rights are waived — are not well understood. That leaves young people and their families extremely vulnerable should a young person be picked up by police.
This is not a hypothetical problem. In a case in California, a 10-year-old boy waived his Miranda rights. When asked if he knew what the right to remain silent meant, he said, “Yes, that means that I have the right to stay calm.”
This story frightens me on behalf of our children. Not just the very young, like this 10-year-old boy who cannot be expected to understand even the basics of what goes on in a courtroom, but also teenagers and young adults, who can’t fully comprehend the potential long-term impact of waiving their constitutional rights.
There is a wealth of developmental research showing that the human brain takes a long time to mature. It does not resemble its mature self, in physical structure or in cognition, until the early to mid-20s. Until that age, young people are not fully capable of mature decision-making or impulse control. This has obvious negative implications for a young person being interrogated by a detective, as in the opening scenario.
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Against the backdrop of brain science, young people would seem by definition unable to meet the legal criteria for waiving Miranda rights. Waiving these rights requires that both the rights and the consequences of waiving them are understood.
Waiving rights must also be voluntary, not coerced. The line of what constitutes coercion, and when it gets crossed, is untenably murky when it comes to young people. Common police interrogation techniques are designed to exploit weaknesses and expose untruths — in adults.
Brain science shows us that a young person’s thinking is susceptible to pressure because it is not fully developed. In the scenario described above, the detective says nothing overtly coercive, yet the pressure to obey or pacify the detective, as felt by the youth, is intense. To call it “voluntary” is at odds with the common understanding of the word.
For young people — to say nothing of those who are developmentally challenged, have no guiding adult in their lives or are members of a group like LGBT individuals or people of color (or more than one of the above) — legal counsel offers protection that mitigates their inherent vulnerability.
Poverty adds yet another layer of vulnerability. For children who qualify for indigent defense services, lack of resources and high caseloads can slow the process down, lengthening a young person’s time without representation. If we are interested in justice, we must ensure that this protection is required by law and consistently, equally available to all.
Brain science has been applied in numerous fields, including the law, by entities as esteemed as the U.S. Supreme Court. It has been cited in landmark decisions affecting young people, recognizing their unique neurodevelopmental vulnerabilities. Why, then, is every young person’s right and access to legal counsel so far behind the science?
Recent and pending legislation in some states has attempted to right these wrongs. California’s SB 1052 would require youth under the age of 18 to consult with legal counsel before waiving their rights. States like Colorado, New Jersey and Texas have implemented model legislation or policy language that defines and protects young people’s right to counsel early in the process, before rights can be waived. Thirty states, though, have no age-based restrictions on waivers.
The case is clear. If we are invested in the health of our communities, economy and our future, we must understand that protecting young people at all points in the justice system benefits everyone. We waste precious resources when we fail to adequately protect our children. Many changes need to be made to our juvenile justice system, but ensuring rights and access to counsel for all youth under 18 is a critical step that impacts its functioning across the board.
Kathy Park is chief executive officer of National Council on Crime & Delinquency, which works to improve outcomes for at-risk children, adults, families, and communities by bringing research and data-driven decision making to the juvenile and adult criminal justice, child welfare, and adult protection systems.
This column has been updated.
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