A bipartisan group of Maryland prosecutors doubled down this week on claims that a new law requiring that underage defendants consult with an attorney about their rights before police can interrogate them is making the public less safe.
As it is now, Baltimore Police and other agencies across the state are not adhering to the law, known as the Child Interrogation Act, which is designed to reduce the number of false and coerced confessions by young people, The Baltimore Sun reported in an article published Sept. 5.
About 34% of all wrongful convictions involving people who were under 18 when they were accused of committing a crime involved a false confession, with data from the National Registry of Exonerations showing that the younger they were the more likely they were to confess to a crime they didn’t commit.
During a briefing on juvenile justice Wednesday before the Maryland House Judiciary Committee, Prince George’s County Democratic Del. Nicole Williams said she was disturbed after reading The Sun’s article because it showed that police were “basically ignoring the law.”
“I understand that law enforcement may feel frustrated with regards to this new process because it’s new; it’s only been in effect for the last 11 months,” Williams said. “So I get change sometimes can cause heartburn, but at the same time, as our law enforcement officers, the duty is to adhere to the law.”
The prosecutors, speaking to the committee as part of a briefing on the state of the juvenile justice system, criticized the law passed in 2022, saying it impedes their investigations of juvenile crimes now that young people better understand their Miranda Rights.
“Law enforcement has been charged with keeping the peace and protecting the community all with their hands tied behind their backs,” Wicomico County State’s Attorney Jamie Dykes said.
Dykes, a Republican, said there is a “gang war” in Salisbury and that one of the teens police arrested there as part of a homicide investigation refused to answer police questions on advice from his attorney, which means authorities have been unable to identify other suspects.
The law does not prohibit police from interviewing witnesses and does not require young people who aren’t in custody to speak with an attorney before giving a statement to police. There is no requirement under state or federal law that anyone speak to police, and the Fifth Amendment of the Constitution explicitly protects people from self-incrimination. Further, experts have called a person’s Miranda Rights — the right to remain silent and the right to have an attorney — a “bedrock foundational principle” of both the criminal justice system and our constitutional rights.
“I just don’t understand why this is a child interrogation problem when everyone who walks the face of this Earth has the Fifth Amendment to protect them,” said Anne Arundel County Del. Sandy Bartlett, a Democrat and sponsor of the House’s version of the interrogation protection law.
Acting Prince George’s County Police Deputy Chief Zachary O’Lare also spoke to lawmakers and complained broadly that underage defendants were not consenting to custodial interrogations.
When police arrest someone, they have to do so with probable cause, meaning they have enough information to warrant an arrest. A person cannot lawfully be held in custody if there is not enough information available for police to charge them with a crime.
“In most cases, we’re not relying on self incrimination,” O’Lare said in response to a question about whether police have evidence to arrest minors beyond confessions obtained through an interrogation.
The Rev. Dr. Marlon Tilghman, pastor of Ames United Methodist Church in Bel Air, wrote in an email that he was dismayed that prosecutors are stoking outsized concern about juvenile crime in an effort to repeal a law designed to protect children. People under the age of 18 make up a small portion of all arrests in Maryland, according to data from the Department of Juvenile Services.
“The prosecutors and police offered fear to justify treating the children like adults,” said Tilghman, who is also a former co-chair of BRIDGE Maryland, a faith-based nonprofit.
The Maryland Office of the Public Defender represents about 95% of juveniles charged in the state and also operates a 24/7 hotline for police to call when they have an underage person in custody who needs to have their rights explained to them.
When a given child calls, an attorney will explain their rights thoroughly and then remind them that they do not have to talk to officers if they don’t want to, said Jenny Egan, the juvenile division chief for Baltimore’s public defender’s office. However, the ultimate decision about whether to talk remains with the child, meaning they can choose to be interviewed, even without an attorney.
Although similar laws have been passed in Washington state and California, Howard County State’s Attorney Rich Gibson, a Democrat, suggested that the Child Interrogation Protection Act is unconstitutional because it doesn’t allow for underage defendants to waive their right to consult an attorney.
“Most rights and laws and privileges are waivable,” said Gibson, also president of the Maryland State’s Attorneys’ Association. “The person has the ability to say ‘I choose to go forward, or not.'”
Gibson compared a person’s decision to waive whether they want to consult with an attorney before or during police interrogation to America’s freedom of religion, which allows people to practice whatever faith they want but does not mandate someone have a belief.
“You can believe in God or no God. It’s up to you,” he said. “We don’t force you to do something.”
In order to challenge the constitutionality of the law in court, Gibson said, police would have to illegally interrogate a child, obtain a statement and then a prosecutor would have to use the statement in court. As it stands now, statements obtained from children in police custody who didn’t consult with an attorney are presumed inadmissible.
“The only way to challenge it is to proceed in spite of the law,” Gibson said.
Egan, in a statement to The Sun, said the opinion that a law ensuring children understand their rights is unconstitutional would be “laughable if it were not dangerous.”
“The attacks on [the Child Interrogation Protection Act] are another example in a long history of examples of Baltimore officials arguing it must violate the constitutional rights of residents in order to enforce the laws,” Egan said. “But no one should be above the law.”
If police were intentionally violating the law, or had been instructed to do so, it is possible that they could be subject to civil liability claims, said Del. Elizabeth Embry, a former prosecutor and Baltimore Democrat.
While O’Lare would not discuss violations of the law, he told the committee that there are instances where a child’s parents will come in and want their son or daughter to cooperate with police and face punishment, but that the child’s attorney, usually a public defender, will advise them not to speak.
“This law has taken away a parent’s ability to make that decision,” said O’Lare, echoing Baltimore State’s Attorney Ivan Bates’ comments in previous media interviews.
Under current law, parents are notified when their child is taken into custody.
Bartlett, who is also the vice chair of the Judiciary Committee, took issue with O’Lare’s statements about parents being able to subject their kids to interrogation.
“When a child is arrested and sentenced, is their parent able to serve their time for them?” Bartlett said to O’Lare. “That’s a rhetorical question. Because I already know the answer. It’s no. So how does a parent, or how could a parent waive their rights for them when it is the child who is being accused of a crime?”
