New Law Requires Children Under 15 to Have an Attorney Before They Are Allowed to Waive Their Miranda Rights

It is a parent’s worst nightmare for their child to be arrested and possibly prosecuted for a crime. In 2015, law enforcement agencies in the U.S. made an estimated 921,600 arrests of persons under the age of 18, which is a decrease compared to 2006. Nevertheless, for parents, how children are treated by law enforcement at the time of arrest, especially as to their constitutional rights, is of paramount concern.

The good news is that Governor Jerry Brown has signed SB 395, authored by Sens. Ricardo Lara (D-Bell Gardens) and Holly Mitchell (D-Los Angeles). The bill will take effect on January 1, 2018. Under this new law, if the individual who is taken into temporary custody by law enforcement is 15 years of age or younger, it is required that the youth consult with legal counsel in person, by telephone, or by video conference prior to custodial interrogation and the waiver of Miranda rights. The full text of the bill can be found at the following link:

https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180SB395

Until now, children of any age were allowed to waive their Miranda rights and be interrogated by the police, even if their parents had no idea that they were even in custody. Prior to this bill, Under the coercion tactics of law enforcement, without the guidance and protection of their parents, without legal advice, and probably without understanding their rights, juvenile detainees were allowed to “waive” their constitutional rights and respond to law enforcement interrogation. Now, at the very least, they will have advice of counsel and make an informed decision.

Despite the merit of such protection, the bill had opposition from the California District Attorneys Association, California Police Chiefs Association, California State Sheriffs’ Association, and the San Diego County District Attorney who claimed that the bill required “an unworkable and costly process that would frustrate our criminal justice system.”

State Senator Lara, however, said the bill “will protect children and families from the tragedy of false confession and bring our 50-year old Miranda rights into the 21^st century.”

© 2018 Marina Manoukian