Josh Tepfer, EP Attorney
November 3rd, 2022
I live in Oak Park, which prides itself on being a progressive village just west of the City limits. Our Village is in discussions to up the police presence at both our public high school and the elementary schools by reviving an intergovernmental agreement (IGA). Amongst other things, apparently the proposal would allow officers to question children about criminal acts without the presence of a parent, guardian, or counsel.
Any time we talk about crime, my progressive community seems to forget that children are children. Kids can’t sign an iPhone contract without parental consent, but when their very liberty interests are at stake and they are accused of a crime that will have lifetime consequences for them, everyone seems fine to let kids fend for themselves.
Unless, of course, it is your child. But for those in my community who support this IGA, it almost certainly won’t be your child. It will be the black and brown children who will be disproportionately questioned and accused by police. That’s just historical fact in Oak Park and everywhere.
Let’s be clear: It is not the police’s job to ensure the comfort and best interests of the accused child. It is the police’s job to solve crime. That’s certainly a worthy endeavor.
However, history also tells us that when police question children about crime, they often don’t get reliable information. A decade ago, CBS’ 60 Minutes rightfully called Illinois the False Confession Capital. That is because police have repeatedly interrogated black and brown children to the point where they force them to confess to serious crimes they did not commit. In the instances profiled in those cases, the consequences were decades-long sentences in adult prison until DNA exonerated them. The problem, of course, is far from resolved, as this story of a 15-year old Waukegan false confessor earlier this year highlights.
But beyond the idea that any policy that leaves children isolated during police interrogation has questionable effectiveness, it is also likely unconstitutional—at least for most children. For one, in 2011, the U.S. Supreme Court held that children questioned by police in a school setting need to be warned of their right to remain silent and counsel pursuant to the famous Miranda v. Arizona decision. So, my local Oak Park police better be trained to Mirandize these kids and equipped with resources to get them counsel delivered to the school if they invoke their rights.
But the problem does not stop there: Police don’t just have to read the child Miranda rights, there needs to be proof that the child understands those rights for the subsequent questioning to comply with the constitution. The research repeatedly demonstrates that children cannot and do not understand the right to remain silent or counsel when accused of a crime. And that’s just common sense. Children are taught repeatedly to respect their elders—parents, teachers, principals, and, of course, police. When these same adults summon a child to the school office and ask to talk to him about a criminal incident, Miranda rights or not, it is a rare child who would actually have the knowledge and wherewithal to tell these adults that they don’t want to talk to them without an attorney. Without that wherewithal, there is no valid Miranda waiver.
There are no easy solutions to solving crime generally, or crime committed by youth. But it takes community engagement with all stakeholders. That, of course, includes partnerships between school officials and law enforcement, but leaving parents, guardians, and ultimately the accused child out of that partnership is not the answer. It will continue to decrease community engagement and trust with law enforcement and is a huge step backwards. Ultimately, it will be the same marginalized communities that will suffer most.