Young People's Right to Counsel Before Questioning by Police

Access to lawyers before police questioning is considered a fundamental value of a juvenile's right to a fair trial. (Photo: Dirk Knight / Flickr)

Millions have seen young Brendan Dassey being interrogated by police and prosecutors, in the path-breaking Netflix series, Making a Murderer. Last week, a federal judge overturned the 16-year-old's conviction on first-degree murder, sexual assault and mutilation of a corpse based on his "involuntary" coerced confession to investigators who used "deceptive" interrogation tactics that overbore Dassey's free will. Neither his lawyer nor an adult was present during his interrogation.

Across Europe, nations are racing to provide lawyers for children prior to questioning or interrogation by police, not counsel after arrest or typically, 24 hours or even days later at the youth's first court appearance, as is the common practice in the US. The European Court of Human Rights (ECHR) has repeatedly clarified that, indeed, it fully intended to decide that "access to a lawyer should be provided as from the first interrogation of a suspect [Salduz v. Turkey (2008)] by the police." And in the parallel case of Panovits v. Cyprus, the ECHR held that juvenile suspects have a right to counsel prior to and during interrogation by police, not just the right to consult with a lawyer.

As European countries scrambled to cobble together some formal or technical form of legal representation before youth are questioned by police, the ECHR and other EU bodies consistently re-asserted that, indeed, the youth-specific requirement included special protections for youth: a prompt, qualified, individualized, legal representation-type of real lawyer, not a warning, not a video, not, as one federal judge put it, someone assigned to protect the interests of a youth who acted as "a potted plant."

This special protection to be accorded youth is rooted in international human rights law and children's rights standards (still largely out of the legal reach of the US), as well as in adolescent behavioral development and brain science, which have now been acknowledged by the US Supreme Court in a case abolishing the juvenile death penalty (Roper v. Simmons) and a case restricting the use of juvenile life without parole (Graham v. Florida).

A deeper conversation about an immediate right to counsel at the beginning point of police questioning (when it matters most) and the perils of police interrogation of youth is essential for all youth and youth advocates within the US, to clarify where our strategies for youth justice are headed. Racial and ethnic disparities have long evidenced the current and historical differences in access to legal rights in the US. As the W. Haywood Burns Institute has thoroughly documented, the ethnic and racial disparity gap between African American and white youth, and between white youth and all youth of color, is obscenely unequal and the discrepancy accelerates from the moment of initial police contact, through detention, conviction, sentencing and incarceration. Nearly 55,000 youth were incarcerated on any given night in 2013, most (87 percent) for nonviolent offenses. The majority (66 percent) were youth of color."

This year, the Chicago Police Accountability Task Force documented the need to give youth, and particularly youth of color, stronger legal protection from police abuse. African American youth are "far more likely to be arrested and so more at-risk of potential abuse: Three-fourths of the 14,600 arrests of juveniles in Chicago in 2015 were of Black children and teens," according to an article from The Chicago Reporter on data from the Illinois Criminal Justice Information Authority.

In its widely publicized April 2016 report that was sharply critical of police practices overall, the task force wrote:

CPD [Chicago Police Department] has not made the legal rights of juveniles a priority. We have heard that police frequently tell lawyers working on behalf of juveniles that their clients do not have a right to counsel or that the juvenile's guardian must approve a visit by a lawyer. Youth should be receiving more, not less, protection.

The task force found that attorneys filled out visitor request forms in less than 1 percent of all Chicago arrests in 2015. For youth, the Chicago Defender later found, the numbers were even worse: less than one-tenth of 1 percent of arrested juveniles had an attorney when in police custody.

Historically, legal developments in the US have focused on the ability of young people to comprehend Miranda warnings, a familiar but often empty Fifth Amendment right to remain silent. But one year after Miranda, the US Supreme Court focused on children's right to counsel in court, rather than when that Sixth Amendment right to a lawyer arises: Does it arise prior to a youth being interrogated? Or when a youngster is initially in custody? Or only when the youth appears in court?

In addition to these issues of when counsel is required in delinquency and criminal matters, juveniles in the US also do not have a consistent legal right, at all, to an appointed lawyer in numerous other areas of law critical to their life, liberty and well-being: in child protection cases, in immigration courts, or in parole or probation revocations, for example.

The European rulings, subsequent national decisions and legislation, and further codification in an EU Directive and Guidelines for Child Friendly Justice of the Council of Europe are having the effect of encouraging police and prosecution forces, in a wide variety of national settings, to rely more on forensic evidence (physical evidence, DNA, witnesses, victim accounts) and technological records (cell phones, cameras) for charging, prosecution and convictions, and less on confessions or admissions by youthful suspects (and adults).

In the US, the challenges by Black Lives Matter to race-based police stops, interrogations, arrests and state-sponsored shootings of people of color have opened the possibility for serious structural and legal reforms -- should we mobilize and campaign for them. These now-visible examples of police violence are building on prior revelations of wrongful convictions of youth, on struggles against police "stop-and-frisk" practices and disclosures of militarized police shootings before questioning. This is a historic opportunity we cannot afford to disregard.

Hopefully, in 2017, we will commemorate -- as a challenge, not yet a celebration -- the 50th anniversary of the germinal Supreme Court case in children's rights, In re Gault. In 1967, 15-year-old Gerald Gault was charged with making a "lewd and indecent" phone call to a neighbor woman, Mrs. Cook -- an offense that might then have resulted in a $50 fine and two months in jail for an adult, but instead resulted in a sentence of six years' incarceration for young Gerald. However, in 1967, the US Supreme Court concluded that Gerald Gault had the same full procedural due process Fourteenth Amendment constitutional rights as an adult (except bail), including the right to notice of charges against him, the right to legal counsel, the right to protection against self-incrimination, the right to confront witnesses and the right to appeal. The right to a lawyer, when there was a possibility of deprivation of liberty, was essential. Gerald's liberty was at stake. He was facing incarceration for six years. The highest court overturned his conviction.

Before Gault, "the kinder, gentler" processes of juvenile court were thought to be sufficient for children and youth. After Gault, children were acknowledged to be constitutional persons with a right to conscientious, meaningful legal representation.

In the decades following Gault, children's rights have indeed expanded in the US (see Roper v. Simmons, Graham v. Florida and JDB v. North Carolina, for example), but the effective right to counsel remains full of holes, in theory and in practice.

Beyond the right to counsel in juvenile court, guaranteed by the Due Process Clause of the US Constitution and Gault, state provisions for counsel for children in delinquency or criminal proceedings vary greatly. Counsel may not be appointed until the first court appearance, or after. In numerous jurisdictions, proof of indigence is required for appointment of publicly funded juvenile defenders or appointed private counsel. The right to a lawyer in criminal/delinquency cases, as a matter of law, was presumed to come into effect after arrest in Florida, for example, where a child's attorney "shall be allowed to provide advice and counsel to the child at any time subsequent to the child's arrest, including prior to a detention hearing while in secure detention care."

In California, pending legislation SB 1052, will require youth under the age of 18 to consult with legal counsel before they waive their Fifth Amendment constitutional Miranda rights. Much of the struggle for defendants' rights in the US has been focused on the Fifth Amendment, rather than the Sixth. When law enforcement conducts a custodial interrogation, they are required to recite basic constitutional rights to the individual, known as Miranda rights, and secure a waiver of those rights before proceeding. The waiver must be voluntarily, knowingly and intelligently made. Miranda waivers by juveniles present distinct issues. According to a legislative fact sheet released by California State Senator Ricardo Lara, "Recent advances in cognitive science research have shown that the capacity of youth to grasp legal rights is less than that of an adult. This is especially true for very young, developmentally disabled, or cognitively delayed children, and for those with mental health problems." Currently, in California, children of any age can -- and regularly do -- waive their Miranda rights. This bill would also provide courts with guidance for determining the validity of a Miranda waiver and provide some measure that the outcomes of interrogations will preserve a youth's constitutional rights.

Recent Illinois law is also emblematic of the struggle for an early, effective right to counsel for children in delinquency and criminal cases. Even its own advocates point out that the Illinois bill, SB 2370, is an embarrassingly tepid step forward. But the law raises the age from 13 to 15 years at which children being questioned in murder or sex offense cases (only) must have an attorney present. It requires police to read a simplified version of Miranda rights to all juveniles under the age of 18. After reading the statement, police are required to ask the minor: "Do you want to have a lawyer?" and "Do you want to talk to me?" And, in a significant step forward, it requires that police videotape all interrogations of youth under 18 years of age. Despite national and local efforts to provide children with more legal protections, the laws governing the rights of children in police custody still vary widely from state to state. Most states have no requirement at all for a lawyer's presence when a child is in police or detention custody, or for the videotaping of police interrogations of youth.

In Europe, the logic of the landmark ruling of Salduz is that the right to a fair trial requires that "access to a lawyer should be provided as from the first interrogation of a suspect by police." This right may only be restricted when authorities demonstrate in a particular case that there is a compelling reason for doing so. This takes care of the "desperate emergency" scenario in which a suspect's information might, theoretically, save lives. According to the European Court, "the rights of the defense will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction." Pointedly, the court explicitly emphasized "the fundamental importance of providing access to a lawyer where the person in custody is a minor."

Thus, under the case law of the ECHR, the right to counsel as from the initial stages of criminal justice is considered a fundamental value of the right to a fair trial.

The challenge for advocates in the US is to press forward vigorously, to breathe effective life into the Sixth Amendment right to counsel for children and youth on the anniversary of the landmark Gault decision. Children, adolescents and youth have a right to meaningful counsel at the point of questioning by police and prosecutors. Let us use the European experiences as an inspiration and an obligation. That would be a real tribute to the brave, forward-thinking attorneys who once took the Arizona case of Gerald Gault all the way to the US Supreme Court. Conscience requires that we press for the right to counsel for children at the time when it matters most, and which fortifies the right to a fair trial: before and throughout police/prosecutorial interrogations of children and adolescents.