INTERROGATING CHILDREN

It may surprise you to learn that despite all we know about the development of the adolescent brain, until very recently, children were essentially treated like adults in police interrogations. Children as young as 14 were subjected to the same psychologically manipulative, high pressure interrogation techniques (the same techniques that scholarly research has now shown responsible for the majority of false confessions) as adults.

So long as a child was read their Miranda rights and continued speaking with police, their statements would be admissible and the same strict standards for invocation of Miranda rights applied. If a child asked if they should talk to a lawyer, that was not an invocation. If a child requested to speak with a parent, their statement was still admissible even when that request was denied.

As a result, for several years, progressive criminal justice interests have been lobbying Sacramento for legislation that would mandate that a child be afforded a conversation with a lawyer before being questioned even if they did not ask for one themselves.

Want to get angry? Watch this commercial in support of the legislation produced by Human Rights Watch that highlights some of the atrocious tactics used in just one interview of an innocent 13 year old boy.

Last October, the legislature passed and Governor Brown signed SB 395, a slightly watered down version of the originally proposed legislation that requires police to provide a lawyer for a child 15 or under to speak with prior to questioning in a custodial interrogation. In other words, a child 15 or younger can no longer waive their Miranda rights until they have had a chance to talk to a lawyer.

The bill was not perfect, but it was a start to protect some of the most vulnerable people police and prosecutors come into contact with. So what was the reaction from police and prosecutors? Well, now signed by the governor, we are talking about a law and law enforcement…well, it is in the name, right? They enforce the law! They stand up for the rule of law! They don’t pick and choose which laws they like or don’t like, right? So obviously they were enthusiastic supporters of this new law…

Wrong.

The sad truth is law enforcement does not much care for laws that limit the awesome amount of power they have. Last week, it came to light, that less than six weeks after Governor Brown signed the bill into law, the Los Angeles District Attorney circulated a memo that not so subtly instructs police how to get around having to let a minor speak to a lawyer before questioning.

This is the same mindset that leads to police and prosecutors claiming they “just uphold the law” while enforcing draconian punishments and prosecuting silly victimless crimes while showing active contempt for the 4^th, 5^th and 6^th Amendments of the Constitution and the wave of sensible criminal justice reform that has swept California in the last 2 years.

Unfortunately, I do not suspect the court’s will be as offended as you or I are by this. The only true hope for reform is getting law enforcement leadership to buy-in or replacing the leadership with those who do.