*Qiara Butler
I. Introduction
In April 2022, the Maryland General Assembly passed several pieces of legislation involving police accountability and their interactions with the community.[1] One of the most impactful pieces of legislation was Senate Bill 53, also known as the Child Interrogation Protection Act.[2] This statute, which went into effect October 1, 2022,[3] establishes three key requirements when children under 18 years of age are taken into custody by police: (1) “actual notice” to the parent, guardian, or custodian that the child is in police custody,[4] (2) the maintenance of detailed records,[5] and (3) for the child to have a consultation with an attorney prior to an interrogation.[6] Because Black children are vastly over represented in Maryland’s juvenile prisons,[7] this legislation will have a critical impact on Maryland’s legal system.
II. Legal Development
These new requirements are starkly different from the previous juvenile criminal law requirements.[8] The law requires that the officer give notice in a manner that is “reasonably calculated to give actual notice,”[9] including keeping a record of the following information: (1) the child’s location, (2) the reason for the child being taken into custody, and (3) instructions to the parent, custodian, or guardian on how to make immediate in-person contact with the child.[10] The requirement of the attorney consultation before custodial interrogation by police is a completely new addition to this criminal law.[11] Not only is the consultation required, but it cannot be waived.[12] Both notice and consultation requirements must occur prior to a law enforcement officer’s custodial interrogation of a child.[13]
The purpose of this legislation is to provide juveniles with added due process protections, recognizing “juveniles’ increased vulnerability in custodial interactions with officers due to their lessened developmental capacity and increased deference to adult authority figures.”[14] These added measures are proposed to decrease the likelihood of harm to juveniles in the criminal legal system such as self-incrimination and false confessions.[15] Often, when children are questioned by police, they do not understand their Miranda rights,[16] the “risks and consequences” of speaking with officers, nor whether they are even in custody.[17] Lack of support from an attorney or even a parent for these children can lead to statistically detrimental effects.[18]
III. Foreseeable Obstacles
However, despite its honorable purpose, this legislation was not embraced unanimously. It faced fierce opposition from law enforcement and other representatives in the legal community.[19] This opposition could present unforeseen procedural resistance to the enforcement of this law through the overuse of exceptions in the statute.[20]
A. The Public Safety Exception
The Child Interrogation Protection Act (Act) seems to provide added protections to juveniles, but it comes with exceptions.[21] Section G(1)(I) of Senate Bill 53 provides that a “lawful” custodial interrogation can occur without following the aforementioned requirements[22] if “[t]he law enforcement officer reasonably believes that the information sought is necessary to protect against a threat to public safety[.]”[23] This public safety exception could be overused by law enforcement to circumvent the protections of this law. Recently, juvenile crime has been spotlighted in the media.[24] This exception could easily provide a way for law enforcement to disregard the statute’s requirements and conduct their interrogations of juveniles while still being deemed “lawful.”[25]
B. Rebuttable Presumption of Inadmissibility
The Act also appears to provide an exception through a rebuttable presumption of inadmissibility,[26] meaning that even if law enforcement fails to meet the statutory requirements to perform a custodial interrogation of a child, the ill-gotten evidence is not automatically barred from admission against the child in court.[27] Instead, the statute creates a rebuttable presumption of inadmissibility which can be overcome by showing that the child’s statement was made “knowingly, intelligently, and voluntarily.”[28] This showing disregards the scientific evidence that juveniles have a diminished developmental capacity[29] and essentially negates the reason the statute was created.
IV. Conclusion
Because the Act went into effect on October 1, 2022, it can only be speculated how law enforcement and the courts will construe and apply the statute. Although this legislation was created in hopes that it would provide much needed protections for Maryland juveniles, in practice, this law will likely face lots of practical opposition. The exceptions are potentially fatal to the legislation’s original purpose.[30] Only time will tell.
*Qiara Butler is a third-year evening student at the University of Baltimore School of Law. She has been working for the Social Security Administration as a Disability Examiner for twelve years, and since 2017, splits her day to work as a union steward and, most recently, as 5th Vice President for the American Federation of Government Employees Union Local 1923.
On her path to becoming an attorney, Qiara has managed to balance many responsibilities, including, but not limited to volunteering for internships and other activities. She interned for the U.S. Attorney’s Office in Baltimore as a Volunteer Law Clerk and as a Judicial Intern with the Honorable Judge Myshala Middleton for the Baltimore City Circuit Court. She is now a member of the University of Baltimore’s Law Review as a Staff Editor, the Community Service Chair for the Mid-Atlantic Region of the Black Law Student’s Association, and the University of Baltimore’s Representative for Alliance of Black Women Attorneys of Maryland. She is also currently taking a Mediation Skills course that will provide her the 40 hours she needs to become a practicing mediator. In addition, Qiara serves as a research assistant for Professor John Lynch.
Qiara will be summering in the Baltimore office of Saul Ewing Arnstein & Lehr LLP for the summer of 2023.
[1] See Bills Passed by the House and Senate during the 2022 Legislative Session (April 13, 2022). https://reznikformaryland.com/bills-passed-by-the-house-and-senate-during-the-2022-legislative-session/.
[2] Md. Code Ann., Crim. Proc. § 2-108 (West 2022) (hereinafter “the Act”).
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Ryan McFadden, Juvenile Detention Declined, Yet Black Children Detained at High Rate, Capital News Service (Jan. 2, 2021), https://www.marylandmatters.org/2021/01/02/juvenile-detention-declined-yet-black-children-detained-at-high-rate/ (According to semi-recent data Black children make up 77% of detainees, but only about 31% of the total population).
[8] See Md. Code Ann., Cts. & Jud. Proc. § 3-8A-14 (repealed Oct. 2022) (West 2022).
[9] Md. Code Ann., Cts. & Jud. Proc. § 3-8A-14 (effective Oct. 2022) (West 2022) (emphasizing that the Maryland Code on Juvenile Causes Courts and Judicial Proceedings Section 3-8A-14 only required an officer to provide minimal notice).
[10] Id.
[11] Compare id., with Md. Code Ann., Cts. & Jud. Proc. § 3-8A-14 (repealed Oct. 2022) (West 2022).
[12] Id.
[13] Id.
[14] Haley Shefferman, Legislative Update: Maryland’s New Child Interrogation Protection Act Will Provide Much Needed Safeguards for Youth, 42 Child. Legal Rts. J. 181 (2022).
[15] Id.
[16] Id. (defining Miranda rights as “the constitutional rights to refuse to answer questions and to consult with an attorney, which officers must inform individuals of before any custodial interrogation can take place”).
[17] Id. at 182.
[18] Id. at 183 (“Youth waive their Miranda rights in eighty percent of custodial interrogations nationally. Youth are also far more likely to confess to crimes they did not commit–thirty six percent of exonerees nationally made false confessions when they were children, while ten percent made false confessions as adults, according to the National Registry of Exonerations. In addition, youth of color are even more likely to make false confessions due to police bias in these interactions.”).
[19] Id. at 182.
[20] Md. Code Ann., Cts. & Jud. Proc. § 3-8A-14 (effective Oct. 2022) (West 2022).
[21] Id.
[22] Id.
[23] Id.
[24] See Pilar Aris, Two Juveniles in Custody for Killing a Maryland Gas Station Employee, Police Say, Fox News (Aug. 14, 2022), https://www.foxnews.com/us/two-juveniles-custody-killing-maryland-gas-station-employee-police-say.
[25] Md. Code Ann., Cts. & Jud. Proc. § 3-8A-14 (effective Oct. 2022) (West 2022).
[26] Id.
[27] PRESUMPTION, Black’s Law Dictionary (11th ed. 2019).
[28] Md. Code Ann., Cts. & Jud. Proc. § 3-8A-14 (effective Oct. 2022) (West 2022).
[29] See Shefferman, supra note 13.
[30] Id.
University of Baltimore Law Review 