Most people have heard a version on TV of what are known as the Miranda Rights: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you.”
It’s another thing entirely to hear them in person when a police officer is reciting them while placing you in custody.
“These guys have the power to lock you up. They got guns on their hip. It’s intimidating,” a 22-year-old recently told NPR. We aren’t publishing his name because he’s on probation and worried he might face retaliation for talking to a reporter.
The first time he heard those words, he was in the sixth grade. Police were arresting him for threatening a bully with a pocket knife.
“They didn't call my mom. They didn't call a lawyer. They told me my rights, but I'm 12. So I didn't fully understand what was happening,” says the young man.
That day, he didn’t ask for a lawyer, and he did talk. Studies show nearly all juveniles make the same choice: As many as 90 percent waive their Miranda rights. Yet legal experts say children and teenagers don’t understand the consequences of doing so.
Now, some states are working to fix that. In the last three years, at least four states — including California, Maryland, New Jersey and Washington — have passed laws banning police from interrogating children until that child has spoken to a lawyer. Illinois has introduced a bill broadening its protections for juveniles questioned by police, and other states – including New York and Minnesota – have introduced similar bills.
‘They literally don’t have the same resources that fully grown people do’
The brain areas that govern impulsivity, self-regulation and decision-making aren’t fully developed until about the mid-twenties, says Hayley Cleary, an associate professor of criminal justice at Virginia Commonwealth University.
“It is fundamentally unfair to interrogate them in the same way we do adults when they literally don’t have the same resources that fully grown people do,” she says.
In a room alone with police, children and teenagers are more likely than adults to falsely confess to a crime. They’re also more vulnerable to incriminating themselves or pleading guilty when a lawyer wouldn’t have advised it, says Marsha Levick, chief legal officer of the Juvenile Law Center in Philadelphia.
That can lead to harsher punishment, like more time in juvenile detention. Being incarcerated disrupts childhood. Kids who experience it are less likely to graduate from high school and more likely to be incarcerated as adults.
“Children plead guilty in juvenile court every day, and they're represented by lawyers who are advising them and talking through with them what the consequences of that means,” Levick says. “To do it on their own with no one to explain to them what the right is that they're giving up and what the consequences of giving up that right are, is simply unreasonable.”
After police questioned the now 22-year-old that NPR interviewed, he was put on probation. That started a cycle: He went to juvenile detention the next year at 13, and has been on probation or behind bars on and off ever since.
“At this point, it's a part of my life, you know what I mean? As sad as it is to say. I don't want to be in the system and have to deal with that for the rest of my life,” he says.
Eventually, he connected with the nonprofit Legal Rights Center in Minneapolis. Chelsea Schmitz-Gillam, a juvenile defense attorney there, has represented him multiple times.
“He knows how to assert his rights when I am sitting next to him. We've practiced it many times,” she says. “I am also not a police officer.”
She remembers watching a recording of the young man being questioned.
“He says, ‘I think this is the time where I'm supposed to call my lawyer. I think this is the time where I shouldn't be saying anything else,’” Schmitz-Gillam says. “The police officers – who are trained in their field, which is interrogation tactics, which our youth are not trained in – continue to have a conversation with him: ‘Well, it's up to you, if you really think you need a lawyer, but also if you talk with us right now, look, there's ways that we can make this easier for you.’”
‘States have moved towards building the responsibility on the system’
In a classroom last spring in St. Paul., Minn., a group of high school students listened to a presentation about what to do in police interactions.
The training was held by the Legal Rights Center which, in addition to providing legal representation, conducts “know your rights” trainings for young people around the Twin Cities.
The trainer asked the group if they thought people under 18 have the right to ask for a parent when questioned by police. Several students nodded yes, but the answer was no. Some seemed concerned. One said it made her worry about her little brother.
“Currently the responsibility is on young people to assert those rights,” says Malaika Eban, executive director of the center. “But a lot of states have moved towards building the responsibility on the system.”
There has been pushback among law enforcement, says Dave Thompson, a consultant who trains investigators in interrogation techniques.
For instance, Thompson says, will there be enough lawyers to talk to all these kids, or will police have to wait hours before asking questions on what might be an urgent case?
“I think it’s just this nervousness, ‘If we add these safeguards, we're not going to get any more information,’ says Thompson, but he added, “if we do it the right way, and everybody’s rights are protected, that should benefit justice as a whole.”
Eban, of the Legal Rights Center, says it’s not about young people getting off the hook for wrongdoing, but about whether they should be questioned alone by an adult with power.
“Nobody wants that for their own child,” she says. “If we can just have that breath of: ‘Okay, what would I want to have happen if my kid did something wrong or was accused of doing something wrong?’”
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