PROTECTING JUVENILES RIGHT TO REMAIN SILENT: DANGERS OF THE THOMPKINS RULE AND RECOMMENDATIONS FOR REFORM

PROTECTING JUVENILES RIGHT TO REMAIN SILENT: DANGERS OF THE THOMPKINS RULE AND RECOMMENDATIONS FOR REFORM Lauren Gottesman TABLE OF CONTENTS INTRODUCTION... 2032 I. THE CURRENT STATE OF A JUVENILE S RIGHT TO REMAIN SILENT... 2033 A. Supreme Court Jurisprudence Regarding an Adult s Right to Remain Silent Under the Fifth Amendment... 2033 B. Current Fifth Amendment Protections for Juveniles... 2038 1. Supreme Court Decisions Extending the Right to Remain Silent to Juveniles... 2038 2. Federal Juvenile Delinquency Act: Protection of Juveniles Fifth Amendment Rights in Federal Proceedings... 2039 3. States Statutory Protection of a Juvenile s Right to Remain Silent... 2040 C. The Thompkins Rule: Invocation and Waiver of Right to Remain Silent... 2043 1. Recent Application of Thompkins in United States Circuit Courts... 2045 D. J.D.B. v. North Carolina: The Court s Recognition of Age as a Factor in the Miranda Custodial Determination... 2047 III. THE NEED TO SAFEGUARD JUVENILES RIGHT TO REMAIN SILENT... 2049 Associate Editor, Cardozo Law Review; J.D., Benjamin N. Cardozo School of Law, 2013; B.A., Trinity College, 2008. I would like to thank Professor Jessica Roth for providing critical guidance in the writing and editing process; Professors Alexander Reinert and Annie Decker for patiently discussing potential Note topics with me; Professor Malvina Halberstam whose Criminal Procedure class s discussion of Berghuis v. Thompkins sparked the idea for this Note; Professor Jonathan Oberman for being his students biggest cheerleader and for pointing me towards relevant sources; and the staff of Cardozo Law Review for all of their hard work in the editing process. I would also like to thank my close friends and family for their endless support throughout the Note writing process, and particularly my mother, who spent many, many hours with me as a sounding board as I began to develop this Note. 2031

2032 CARDOZO LAW REVIEW [Vol. 34:2031 A. Supreme Court Case Law and States Policies Reaffirm the Court s Holding in J.D.B.: Additional Protections for Juveniles Are Needed... 2049 B. The Risk of Juvenile False Confessions and Other Social Science Findings... 2052 C. Juveniles are Grossly Burdened by the Thompkins Rule... 2056 IV. RECOMMENDATIONS TO PROTECT JUVENILES CONSTITUTIONAL RIGHT TO REMAIN SILENT... 2057 A. Invocation: A Juvenile in Custody Should Not Be Required to Affirmatively Invoke His Right to Remain Silent... 2059 B. Express Waiver: A Juvenile Should Not Be Permitted to Sign a Waiver Without Prior Attorney Consultation... 2061 C. Implied Waiver: The Totality-of-the-Circumstances Doctrine Should Be Abandoned for a Per Se Rejection of Implicit Waiver for Juveniles... 2067 CONCLUSION... 2070 INTRODUCTION The Fifth Amendment of the United States Constitution protects all individuals from involuntarily making statements that incriminate themselves. In the landmark case of Miranda v. Arizona, 1 the United States Supreme Court recognized the potential dangers of the inherently coercive nature of custodial interrogation, and used the Fifth Amendment privilege against self-incrimination to establish safeguards for individuals subjected to police interrogation. Recently, in J.D.B. v. North Carolina, 2 the Court found that because of a juvenile s increased susceptibility to coercion, a defendant s age must be a factor when law enforcement officers and judges determine whether a suspect is in custody, and therefore what legal protections the police afford the subject of police questioning. Approximately one year prior to the J.D.B. decision, the Court issued the Berghuis v. Thompkins 3 decision, establishing a new rule for all subjects of custodial interrogation: police are permitted to continue interrogating a suspect unless and until the individual in custody has affirmatively and unequivocally invoked his right to silence. 4 In other words, an individual in custody has the burden to speak in order to have his right to remain silent protected. 1 384 U.S. 436 (1966). 2 131 S. Ct. 2394 (2011). 3 130 S. Ct. 2250 (2010). 4 Id. at 2260 ( A requirement of an unambiguous invocation of Miranda rights results in an objective inquiry that avoid[s] difficulties of proof and... provide[s] guidance to officers on how to proceed in the face of ambiguity. (internal quotation marks omitted)).

2013] JUVENILES RIGHT TO REMAIN SILENT 2033 This Note will suggest that the Supreme Court s ruling in Thompkins must be revisited and interpreted in light of J.D.B. v. North Carolina, with regard to minors. More specifically, this Note urges that in order to adequately protect juveniles right to remain silent, a subject s minor age must be a dispositive factor in determining whether he invoked or waived his right to remain silent, and that a subject s youth should automatically trigger additional safeguards during custodial interrogations. Part I begins with an explanation of the Supreme Court decisions that have shaped the constitutional right to remain silent in custodial settings, and provides a brief overview of the federal and state protections currently afforded juvenile subjects of police interrogation. Part II analyzes relevant case law and social science findings, which suggest that juveniles in custody must be treated differently than adults in order to protect their constitutional rights, specifically in helping to prevent false confessions and wrongful convictions. Lastly, arguing that the Thompkins rule should not apply to juveniles aged eighteen and below, Part III urges that courts adopt a less onerous rule regarding a juvenile s burden to invoke his right to silence and proposes additional safeguards and rules that should be adopted by state legislatures to ensure a juvenile s waiver of his right to silence is truly knowing, voluntary, and intelligent. I. THE CURRENT STATE OF A JUVENILE S RIGHT TO REMAIN SILENT A. Supreme Court Jurisprudence Regarding an Adult s Right to Remain Silent Under the Fifth Amendment The Fifth Amendment explicitly provides that no individual shall be compelled to be a witness against himself in a criminal proceeding. 5 The Supreme Court of the United States has interpreted the Fifth Amendment as a privilege against self-incrimination, 6 holding that individuals have a constitutionally protected right to remain silent when 5 U.S. CONST. amend. V ( No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (emphasis added)). 6 While Fifth Amendment rights are much broader than self-incrimination protections (for example, the prohibition against double jeopardy is also embodied in the Fifth Amendment), this Note is focused solely on the Fifth Amendment clause protecting criminal defendants from involuntary self-incrimination.

2034 CARDOZO LAW REVIEW [Vol. 34:2031 interrogated by state actors. 7 In 1966, the Supreme Court issued its landmark decision of Miranda v. Arizona, 8 in which it held that a statement made by a subject in custody, whether incriminating or exculpatory, is inadmissible in a subsequent criminal proceeding unless the accused is clearly informed before the start of the interrogation that 1) he has a right to remain silent, 2) he has a right to counsel, 3) counsel will be appointed if he cannot afford to retain an attorney, and 4) anything he says may be used against him in court. 9 The Miranda Court further held that once an individual is advised of these rights, he can only then be interrogated without an attorney if he knowingly, intelligently, and voluntarily waives these rights. 10 When the defendant challenges the admissibility of an incriminating statement made during custodial interrogation, the Court imposed a heavy burden 11 upon the government to prove that the accused made such a waiver. 12 This heavy burden, however, was later deemed to require no more than proof by a preponderance of the evidence. 13 The Court s opinion in Miranda emphasized the inherently intimidating nature of custodial settings 14 as its rationale for imposing upon law enforcement a duty to administer the now famous Miranda warnings to every individual taken into custody. 15 The Miranda 7 See Miranda v. Arizona, 384 U.S. 436 (1966); see also Dickerson v. United States, 530 U.S. 428 (2000) (holding that the Miranda rules protect constitutional rights founded in the Fifth Amendment). 8 384 U.S. 436. 9 Id. at 444. 10 Id. 11 Id. at 475. 12 Id. 13 Colorado v. Connelly, 479 U.S. 157, 168 (1986). Similarly, if a confession is challenged as involuntary and therefore violative of the due process clause, the prosecution is required to prove by a preponderance of the evidence that the confession was in fact voluntary. See Lego v. Twomey, 404 U.S. 477, 489 (1972) ( [W]hen a confession challenged as involuntary is sought to be used against a criminal defendant at his trial, he is entitled to a reliable and clear-cut determination that the confession was in fact voluntarily rendered. Thus, the prosecution must prove at least by a preponderance of the evidence that the confession was voluntary. Of course, the States are free, pursuant to their own law, to adopt a higher standard. ). 14 Miranda, 384 U.S. at 455; see also id. at 467 ( We have concluded that without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual s will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against selfincrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored. ). 15 The Court has established that whether a subject is in custody is an objective, twopronged inquiry: [F]irst, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave.... the court must apply an objective test to resolve the ultimate inquiry: was there a formal arrest or restraint on freedom of movement of the degree associated with formal arrest.

2013] JUVENILES RIGHT TO REMAIN SILENT 2035 warnings are procedural safeguards, required to protect an individual s Fifth Amendment right against self-incrimination and to prevent involuntary, coerced confessions. 16 In the decades following Miranda, the Supreme Court has interpreted, clarified, and limited the rule. 17 Nine years after handing down its decision in Miranda, in Michigan v. Mosley, 18 the Supreme Court held that although law enforcement officials must scrupulously honor an accused s request to remain silent, an invocation of the right to remain silent is not a total prohibition on further police interrogation. 19 In Mosley, law enforcement officials immediately stopped questioning the defendant about robbery charges once he clearly stated that he did not wish to speak to the police. 20 A separate interrogation regarding the defendant s involvement in a related homicide began hours later, before which the defendant was re-read his Miranda rights. 21 During this second interrogation, the defendant made incriminating statements regarding the murder, which were later admitted at trial and used against him. 22 The Mosley Court allowed use of such statements, holding that an analysis of a defendant s invocation of the right to remain silent and law enforcement s obligation to cease questioning post-invocation is a fact specific inquiry that must include an examination of the circumstances surrounding the custodial interrogation. 23 The Court held that an invocation of the right to remain silent does not necessarily lead to an indefinite ban on all future interrogation regarding other police investigations. 24 Thus, the defendant in Mosley, although he invoked his right to remain silent when initially questioned, did not shield himself against further future interrogation. 25 Given the time between the two investigations and the fact that officers read the defendant his Miranda rights before beginning the second interrogation, the Court found the defendant s incriminating statements admissible. 26 J.D.B. v. North Carolina, 131 S. Ct. 2394, 2402 (2011) (citing Thompson v. Keohane, 516 U.S. 99, 112 (1995) (internal quotation marks, alteration, and footnote omitted)). 16 See, e.g., Dickerson v. United States, 530 U.S. 428, 435 (2000). 17 This Note will only explore those decisions that are critical to the understanding of the development of the doctrine surrounding the invocation and waiver of the right to remain silent. 18 423 U.S. 96 (1975). 19 Id. at 104 05. 20 Id. at 97. 21 Id. at 97 98. 22 The defendant was ultimately indicted, tried, and convicted of first-degree murder and sentenced to life imprisonment. Id. at 98 99. 23 Id. at 98 105. 24 Id. at 102 03. 25 Id. at 102 05. 26 Id. at 104 05.

2036 CARDOZO LAW REVIEW [Vol. 34:2031 Four years later, in North Carolina v. Butler, 27 the Court held that an accused need not expressly waive his right to remain silent or his right to counsel, but rather, once the State proves that the accused understood his rights at the time of the interrogation, waiver can be inferred from the actions and words of the person interrogated. 28 There, inculpatory statements made by the defendant were held admissible because after analyzing the circumstances, background, and conduct of the defendant, the Court found that he acted in a manner that effectively established a waiver of his rights. 29 The defendant, who was literate and had an eleventh-grade education, was provided with a form detailing his Miranda rights. 30 The defendant read the form, verbally acknowledged that he understood his rights, and subsequently refused to sign an express waiver form. 31 The defendant told the interrogating officers that he would speak to them, but would not sign anything. 32 He then made incriminating statements to the interrogating officers. 33 The Court found that the defendant s understanding of his rights and his subsequent behavior was sufficient to constitute an implied waiver of his right to remain silent. 34 The heavy burden 35 that Miranda initially imposed upon the State to prove waiver was therefore further lightened by this decision, permitting an implied or inferred waiver based upon the actions of the accused. 36 The Court again returned to Miranda in 1981 and 1994, clarifying the implications of an individual s invocation of the right to counsel. In Edwards v. Arizona, 37 the Court held that once a suspect has invoked his right to counsel, the interrogation must immediately cease. 38 The 27 441 U.S. 369 (1979). 28 Id. at 373. 29 Id. at 371 72. 30 Id. at 370 71. 31 Id. at 371. 32 Id. 33 The defendant told officers that he and a man named Lee decided to rob a gas station, but denied participation in the robbery, and told officers that his friend shot the gas station attendant. Id. at 378 n.2. 34 Id. at 371 ( The respondent refused to sign the waiver at the bottom of the form. He was told that he need neither speak nor sign the form, but that the agents would like him to talk to them. The respondent replied: I will talk to you but I am not signing any form. He then made inculpatory statements. Agent Martinez testified that the respondent said nothing when advised of his right to the assistance of a lawyer. At no time did the respondent request counsel or attempt to terminate the agents questioning. ) (footnote omitted). 35 This heavy burden was diminished when the Supreme Court interpreted the burden as a preponderance of the evidence standard in Connelly. See supra note 13. 36 Butler, 441 U.S. at 377 (Brennan, J., dissenting) ( The Court thus shrouds in half-light the question of waiver, allowing courts to construct inferences from ambiguous words and gestures. But the very premise of Miranda requires that ambiguity be interpreted against the interrogator. ). 37 451 U.S. 477 (1981). 38 Id. at 484 85 ( We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the

2013] JUVENILES RIGHT TO REMAIN SILENT 2037 Edwards Court further held that once a person in custody invokes his right to counsel, any incriminating statement made in response to subsequent interrogation will be held inadmissible and will be deemed insufficient to prove a valid waiver of the right to counsel. 39 In 1994, in Davis v. United States, 40 the Court held that in order to invoke one s right to counsel and render invalid any subsequent interrogation, an individual must make a clear, unequivocal statement that he is invoking his Sixth Amendment right to counsel. 41 In Davis, the defendant s statement that maybe I should talk to a lawyer, was deemed insufficiently unequivocal to invoke his right to assistance of counsel. 42 Thus, the Davis Court significantly narrowed the Edwards rule that an interrogation must cease once an accused invokes his right to an attorney, limiting the rule to those subjects who make a clear or unambiguous request for counsel. 43 Emphasizing the State s legitimate interest in effective law enforcement, the majority of the Court held that interrogating officials are not required to ask clarifying questions subsequent to any ambiguous reference to counsel. 44 The Court did, however, note that this would be good police practice. 45 While the Court in the opinions detailed above does not explicitly state if and how the Fifth Amendment applies distinctly to juvenile subjects of custodial interrogation, it has ruled that juveniles are entitled to Fifth Amendment protection against self-incrimination. authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. ). 39 Id. at 484 85 ( [W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. ). 40 512 U.S. 452 (1994). 41 Id. 42 Id. at 455. 43 Id. at 462 ( We held in Edwards that if the suspect invokes the right to counsel at any time, the police must immediately cease questioning him until an attorney is present. But we are unwilling to create a third layer of prophylaxis to prevent police questioning when the suspect might want a lawyer. Unless the suspect actually requests an attorney, questioning may continue. ). 44 Id. at 460 62. Justice Souter, however, in his concurrence, argued that after an ambiguous statement is made by a subject in custody, police officers should be required to ask questions of the accused to verify whether he in fact desired to invoke his rights. Id. at 476. 45 Id. at 461.

2038 CARDOZO LAW REVIEW [Vol. 34:2031 B. Current Fifth Amendment Protections for Juveniles 1. Supreme Court Decisions Extending the Right to Remain Silent to Juveniles In 1967, the Supreme Court recognized that the due process protections afforded adults in criminal proceedings must be extended to juveniles. 46 The Court rejected the argument that the Fifth Amendment should not apply to minors in family court merely because juvenile delinquency proceedings are technically civil proceedings. 47 Given that juveniles may face confinement after adjudication in family court, the Court found that a constitutional delineation based on whether a proceeding is criminal or civil would deny juveniles the substantive guarantees of the Fifth Amendment. 48 Thus, the Court concluded that the privilege against self-incrimination, including the right to remain silent, must be extended to juveniles in both criminal and civil proceedings. 49 In 1979, in the case of Fare v. Michael C., 50 the Supreme Court adopted a totality-of-the-circumstances analysis for determining when a juvenile validly waives his Fifth Amendment right against selfincrimination. The Court, relying on Butler, 51 found that the fact-based, totality-of-the-circumstances analysis used for determining an adult s waiver of his right to remain silent, should be applicable to juveniles. 52 The Court explained that the totality-of-the-circumstances analysis, when applied to juveniles, requires an assessment of the minor s age, education, experience, intelligence, background, comprehension of Miranda rights, and appreciation of the consequences of waiver. 53 The 46 See In re Gault, 387 U.S. 1 (1967). 47 Id. at 47, 55 ( It would indeed be surprising if the privilege against self-incrimination were available to hardened criminals but not to children. The language of the Fifth Amendment, applicable to the States by operation of the Fourteenth Amendment, is unequivocal and without exception. And the scope of the privilege is comprehensive.... We conclude that the constitutional privilege against self-incrimination is applicable in the case of juveniles as it is with respect to adults. ). 48 Id. at 49 50 ( In the first place, juvenile proceedings to determine delinquency, which may lead to commitment to a state institution, must be regarded as criminal for purposes of the privilege against self-incrimination. To hold otherwise would be to disregard substance because of the feeble enticement of the civil label-of-convenience which has been attached to juvenile proceedings. ). 49 Id. 50 442 U.S. 707 (1979). 51 North Carolina v. Butler, 441 U.S. 369 (1979). 52 Michael C., 442 U.S. at 725. 53 Id. ( This totality-of-the-circumstances approach is adequate to determine whether there has been a waiver even where interrogation of juveniles is involved. We discern no persuasive reasons why any other approach is required where the question is whether a juvenile has waived his rights, as opposed to whether an adult has done so. The totality approach permits

2013] JUVENILES RIGHT TO REMAIN SILENT 2039 Court reasoned that this approach provides a trial court with the necessary flexibility and discretion to determine for example, that a waiver may be inappropriately inferred with an especially young or inexperienced juvenile, while allowing a court to imply waiver for a juvenile approaching the age of majority who expresses an understanding of his rights and the waiver thereof. 54 In addition to Supreme Court jurisprudence applying due process and Fifth Amendment protections to juveniles, federal and various state legislatures have promulgated positive law pertaining to minors facing criminal charges, signaling legislatures recognition of the need for increased protection of juveniles in criminal and delinquency proceedings. 2. Federal Juvenile Delinquency Act: Protection of Juveniles Fifth Amendment Rights in Federal Proceedings The Federal Juvenile Delinquency Act 55 (FJDA) was initially passed in 1938 to address state courts lack of jurisdiction over juveniles who commit capital crimes and juveniles who reside or commit criminal acts on Indian reservations or military installations, thereby providing a federal forum with which to prosecute juveniles not otherwise covered by state juvenile delinquency statutes. 56 In 1974, the FJDA was significantly amended to extend procedural protections to juveniles in the federal criminal system. 57 Under 5033 of the Act, upon taking a minor into custody, a law enforcement officer must immediately notify the juvenile s parent or guardian and both the juvenile and the parent or guardian must be advised of the minor s Miranda rights in language comprehensible to the minor. 58 Despite this seemingly broad procedural indeed, it mandates inquiry into all the circumstances surrounding the interrogation. This includes evaluation of the juvenile s age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights. ). 54 Id. at 725 26. 55 The Federal Juvenile Delinquency Act (FJDA) has been repealed in part; however, relevant provisions of the FJDA are now codified under 18 U.S.C. 5031 5037 (2012). 56 CHARLES DOYLE, CRS REPORT FOR CONGRESS, JUVENILE DELINQUENTS AND FEDERAL CRIMINAL LAW: THE FEDERAL JUVENILE DELINQUENCY ACT AND RELATED MATTERS 2 (Oct. 25, 2004). 57 Id. 58 18 U.S.C. 5033. Federal courts have imposed a fact based, case-specific reasonableness requirement upon the arresting officer to notify the parents or guardians of the detained status of the juvenile. In the case that a juvenile s parents reside outside of the United States, some circuits have held that the foreign consulate must be immediately notified. Additionally, parental notification of the juvenile s Miranda rights must be given contemporaneously with the notification of custody. United States v. Juvenile (RRA-A), 229 F.3d 737, 745 (9th Cir. 2000).

2040 CARDOZO LAW REVIEW [Vol. 34:2031 protection, federal courts applying 5033 have limited the rule and have allowed the admission of a juvenile s inculpatory statements made during custodial interrogation without the presence of a parent if the juvenile is found to have knowingly, voluntarily, and intelligently waived his Miranda rights given the totality of the circumstances, 59 or if the juvenile s parents are outside of the United States. 60 For example, the Second Circuit held that a juvenile s incriminating statements were admissible into evidence after an officer made several, unsuccessful attempts to locate the juvenile s parents and the juvenile knowingly and voluntarily signed a waiver-of-rights form. 61 3. States Statutory Protection of a Juvenile s 62 Right to Remain Silent The protections afforded minors under the FJDA have very limited application in actual practice because juvenile delinquency cases are primarily handled by the states. 63 Throughout the nation, state legislatures have implemented varying levels of statutory protections to safeguard a juvenile s privilege against self-incrimination. 64 For 59 See, e.g., United States v. Guzman, 879 F. Supp. 2d 312, 315 (E.D.N.Y. 2012) (rejecting juvenile defendant s argument that under 5033, failure to notify a parent that his/her child is in custody should lead to a per se suppression of any custodial statements, and that notification may not be required where, as here, there were clear and compelling law enforcement reasons for deciding not to make the parental notification ). 60 United States v. Doe, 701 F.2d 819, 822 (9th Cir. 1983) ( For those juveniles whose parents live outside the United States, if it is not feasible to notify a parent or guardian, the government could alternatively notify a foreign consulate in the United States. ). 61 United States v. Burrous, 147 F.3d 111, 116 (2d Cir. 1998) (holding that a sixteen-yearold defendant s voluntary waiver of his Miranda rights and subsequent confession was valid even without the presence of a parent or guardian, because officers asked the defendant three times how his parents could be contacted, and the defendant stated that he did not know how to contact his mother or father). The court reasoned that the officers made good faith attempts to locate his parents, and therefore 5033 did not bar admission of the defendant s confession. Id. 62 The majority of states define a juvenile as a child aged eighteen or younger. However, New York and North Carolina both deem youth aged sixteen and older ineligible for the juvenile justice system, and therefore the adult criminal court has original jurisdiction over their cases. As of a report issued in 2011, eleven other states Connecticut, Georgia, Illinois (felonies only), Louisiana, Massachusetts, Michigan, Missouri, New Hampshire, South Carolina, Texas, and Wisconsin have a juvenile justice cut-off at age seventeen. NEELUM ARYA, CAMPAIGN FOR YOUTH JUSTICE, STATE TRENDS: LEGISLATIVE VICTORIES FROM 2005 TO 2010 REMOVING YOUTH FROM THE ADULT JUVENILE JUSTICE SYSTEM 29, available at http://www.campaignforyouthjustice.org/documents/cfyj_state_trends_report.pdf. It should also be noted that just because a child under a certain age is deemed a juvenile and the juvenile or family court thus has original jurisdiction, that does not necessarily mean the youth will not be tried in an adult criminal court pursuant to a transfer order. Id. at 33 (detailing recent changes in states transfer laws). 63 See DOYLE, supra note 56, at 5 6. 64 To explore the varying levels of protection, this Note will briefly examine three states

2013] JUVENILES RIGHT TO REMAIN SILENT 2041 example, in New York, once a minor is taken into custody, a police officer is statutorily required to make reasonable efforts to contact the juvenile s parent, guardian, or an adult residing with the juvenile. 65 If, however, the officer s good-faith attempt to locate the minor s parent or guardian fails, the officer can then proceed with the custodial interrogation without the presence of an adult. 66 The New York statutory rule therefore leaves open the possibility that a juvenile will be responsible for invoking and waiving his right to remain silent without the guidance of an adult. 67 Additionally, despite the New York legislature s clear preference for parental notification and involvement in custodial proceedings, the New York Court of Appeals has held that a juvenile can consent to speak with the interrogating officers alone, regardless of his parent s hesitation. 68 Other state statutes provide more explicitly protective language than the New York statute. Colorado, for example, only allows admission of a juvenile s custodial statement into evidence if the child s parent or legal guardian was present during interrogation and both the youth and the guardian were informed of the child s Miranda rights. 69 However, even under this seemingly protective statute, a court may make an exception and admit a confession or incriminating statement made by a juvenile during custodial interrogation without the presence of his parent or guardian if, under a totality-of-the-circumstances analysis, the reviewing court finds that 1) the juvenile made a voluntary, knowing and intelligent waiver of his right to remain silent; and 2) the juvenile is either eighteen years of age or older, misrepresented to law enforcement officers that he is eighteen years of age, is emancipated from his parents, or is a runaway from another state. 70 statutory schemes: New York, Colorado, and North Carolina. 65 N.Y. FAM. CT. ACT 305.2, 724 (McKinney 2013); see also In re Anthony R., 462 N.Y.S.2d 1007, 1009 (N.Y. Fam. Ct. 1983) ( [I]mmediate parental notification of the fact of arrest and place of custody has been mandated. ). 66 N.Y. FAM. CT. ACT 724 ( [A police officer] may take the youth to a facility designated by the chief administrator of the courts as a suitable place for the questioning of youth.... ). 67 For an illustration of the limited protection provided by New York s Family Court Act, see In re Daniel H., 938 N.E.2d 966 (N.Y. 2010) (holding a juvenile s written confession made in the presence of a guardian admissible even though it was written shortly after the juvenile made an oral confession without the presence of a parent in violation of 305.2). 68 See In re Jimmy D., 938 N.E.2d 970, 971 (N.Y. 2010) ( The detective asked Jimmy s mother, in Spanish, for permission to speak with him alone... The mother did not respond immediately, but after Jimmy consented to talk with the detective alone, the mother agreed, and left the juvenile interview room. ). Without his mother present, Jimmy orally admitted to sexual contact with his cousin, and subsequently composed a written confession, also without the presence of his mother. Id. 69 COLO. REV. STAT. ANN. 19-2-511 (West 2013). 70 Id. The Colorado statute exempting juvenile runaways from outside the state from the requirement of parental presence at questioning survived a constitutional challenge because it was found to be rationally related to a legitimate state interest. Noting that there is no federal constitutional requirement that a juvenile s parent be notified prior to a minor s custodial

2042 CARDOZO LAW REVIEW [Vol. 34:2031 In yet another variation, North Carolina allows for special protection of juveniles under fourteen years of age. 71 Specifically, any statement made by a juvenile in police custody who is fourteen years of age or younger, is inadmissible unless the juvenile s parent, guardian, or attorney was present during the interrogation. 72 The statute further instructs that a parent is not permitted to waive the juvenile s rights, but that a juvenile may knowingly, intelligently, and voluntarily waive his own right to remain silent, 73 using a totality of the circumstances standard. 74 State legislatures can always pass legislation above the constitutional floor set by the Supreme Court of the United States to further protect juveniles right to silence. 75 However, as this discussion exemplifies, even seemingly protective state statutes are limited through courts interpretation. The Supreme Court s mandates, which set the constitutionally required minimum, are often highly influential, and many courts adhere to the minimum requirement, as announced by the Supreme Court. Moreover, the Supreme Court s ruling regarding adults who are subject to custodial interrogation, without specifying how the rule will apply to juveniles, allows lower federal and all state courts freedom to apply the rule to juveniles, thereby leaving juveniles in custodial interrogation without the additional protection they need. 76 interrogation, the Colorado Court of Appeals found that [b]y creating an exception to the rule requiring the presence of the parent, guardian, or custodian of an out-of-state runaway, the statute relieves police of the burden of seeking and finding an out-of-state resident and then waiting for the additional travel time which would be required in most cases before interrogation could begin. Travel time to Colorado for out-of-state parents easily could consume a day or more, hampering investigation. In contrast, in-state parents generally could arrive at the place of interrogation within hours. People v. Blankenship, 119 P.3d 552, 556 (Colo. App. 2005). 71 N.C. GEN. STAT. ANN. 7B-2101 (West 2012). 72 Id. 73 Id. 74 State v. Bunnell, 455 S.E.2d 426, 429 (N.C. 1995) ( Voluntariness must be determined by looking to the totality of the circumstances surrounding the statement. ) 75 Developments in the Law The Interpretation of State Constitutional Rights, 95 HARV. L. REV. 1324, 1334 (1982) ( Federal law sets a minimum floor of rights below which state courts cannot slip. ). 76 See, e.g., People v. Nelson, 266 P.3d 1008, 1019 (Cal. 2012) (finding the Thompkins rule applicable to juveniles and holding that a youth s incriminating statements were admissible despite multiple requests to contact his parents and his statements to police that his family members instructed him not to do anything until a parent or lawyer arrived); see also People v. Polk, 942 N.E.2d 44, 57 58 (Ill. App. Ct. 2010) (applying the Thompkins rule to a seventeenyear-old defendant and finding that [i]f defendant wanted to invoke his right to remain silent, he could have refused to answer any of the sergeant s questions or unambiguously invoked his Miranda rights ); State v. Moses, 702 S.E.2d 395, 400 (S.C. Ct. App. 2010) (citing Thompkins and finding that Moses did not unambiguously invoke his right to remain silent or his right to counsel ).

2013] JUVENILES RIGHT TO REMAIN SILENT 2043 The following subsection will detail the Thompkins rule, one of the more recent affirmative burdens on subjects of custodial interrogations imposed by the Supreme Court. The Court was silent on how this new rule would impact juveniles in custodial settings, 77 and whether interrogating officers should modify the newly announced Thompkins rule when dealing with a juvenile suspect. Consequently, some states have begun to strictly apply the Thompkins holding to juveniles. 78 C. The Thompkins Rule: Invocation and Waiver of Right to Remain Silent In the 2010 decision of Berghuis v. Thompkins, 79 the Supreme Court extended the Davis holding, requiring that an individual make a clear, unambiguous statement in order to invoke his right to remain silent. 80 Thompkins, a suspect in a fatal shooting, was arrested, taken into custody, and given a Miranda waiver form that listed his Miranda rights and warnings. 81 An officer read him the rights on the form listed one through four and Thompkins read the fifth warning aloud 82 to establish that he could read and understand English. 83 Thompkins declined to sign the waiver form 84 and was then largely silent for the following two hours and forty-five minutes of the custodial interrogation, answering questions put forth to him by the officers in mostly one-word statements. 85 During the third hour of interrogation in 77 Although the Court does not typically delineate how its opinions will impact juveniles as distinct from adults, because doing so would arguably violate its ban on issuing advisory opinions, see e.g., Golden v. Zwickler, 394 U.S. 103, 108 (1969), this Note explores the potential dangers of failing to limit this ruling to adult custodial subjects. 78 See supra note 76 and accompanying text. 79 130 S. Ct. 2250 (2010). 80 Id. at 2260. 81 Id. at 2256. 82 Thompkins was required to read the following Miranda warning aloud: You have the right to decide at any time before or during questioning to use your right to remain silent and your right to talk with a lawyer while you are being questioned. Id. at 2256 (internal quotation marks omitted). 83 Id. at 2256. 84 The Court s decision in North Carolina v. Butler, 441 U.S. 369 (1979), held that a refusal to sign a waiver does not require the officer s to cease the interrogation. Like the defendant in Butler, the Court here inferred a waiver from the defendant s conduct, despite the accused s refusal to sign an express waiver form. 85 Thompkins, 130 S. Ct. at 2256. Amici for Mr. Thompkins point out that the interrogating officer described Thompkins interrogation as a monologue in which Thompkins did not respond substantively to any questions regarding his alleged involvement in the crime. Brief for the National Ass n of Criminal Defense Lawyers and the ACLU as Amici Curiae in Support of Respondent at 4 5, Thompkins, 130 S. Ct. 2250 (No. 08-1470), 2010 WL 342030 ( [Officer] Helgert testified that Thompkins eventual inculpatory statement was [t]he only thing Thompkins said during the interrogation relative to his involvement in the crime. And when he tried to recount what Thompkins did say during the interrogation, Helgert could point to

2044 CARDOZO LAW REVIEW [Vol. 34:2031 a small room, in which defendant was seated in a hard-backed chair, Thompkins replied yes to an officer s query of whether he believed in God. 86 Thompkins was then asked if he prayed to God, and replied yes. 87 Next, Thompkins was asked, Do you pray to God to forgive you for shooting that boy down? to which he also replied yes. 88 Despite his refusal to expressly waive his rights and his near silence 89 in the face of interrogation, Thompkins one-word responses to the officer s questions were admitted into evidence and used against him at trial. 90 Thompkins was subsequently convicted of first-degree murder and sentenced to life imprisonment without parole. 91 The Supreme Court held that Thompkins did not invoke his right to remain silent by remaining largely silent. 92 Rather, the Court found that Thompkins, who was read and found to have understood his rights, was required to unequivocally, unambiguously assert his right to silence, and failed to do so. 93 Further, the Court held that Thompkins waived his right to remain silent because he understood his rights, yet answered yes, in response to the officer s question, Do you believe in God? 94 The Court relied on Butler 95 to infer waiver, explaining that an implied waiver was appropriate because Thompkins understood his rights yet engaged in a course of conduct indicating waiver. 96 In this five-four decision, 97 the Court created a new, bright-line rule: an accused must affirmatively invoke his right to silence his silence alone is insufficient. 98 Further, the Court re-affirmed the holding in Butler that if the State can prove that a Miranda warning was provided and that the accused understood his rights, then any only two statements: that Thompkins said he didn t want a peppermint that my partner offered him, and [that] the chair that he was sitting in was hard. ) (internal citations omitted). 86 Thompkins, 130 S. Ct. at 2257. 87 Id. 88 Id. 89 See supra note 82 and accompanying text. 90 Thompkins, 130 S. Ct. at 2258. 91 Id. 92 Id. at 2256 ( At no point during interrogation did Thompkins say that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney. ). 93 Id. at 2260. 94 Id. at 2257. The Court found that this particular one-word answer was sufficient to constitute an implied waiver, and that this waiver was confirmed by Thompkins previous sporadic answers to the officer s questions. Id. 95 North Carolina v. Butler, 441 U.S. 369 (1979). 96 Thompkins, 130 S. Ct. at 2261 (quoting Butler, 441 U.S. at 373). 97 Justice Sotomayor, joined by Justice Stevens, Ginsburg, and Breyer, wrote a dissent arguing that Thompkins was entitled to relief under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) because the prosecution failed to prove its burden that he in fact waived his right to remain silent, and that the counterintuitive burden to speak precisely in order to invoke one s right to silence retreats from the protection afforded custodial subjects by Miranda. Id. at 2266 (Sotomayor, J., dissenting). 98 Id. at 2260 (majority opinion).

2013] JUVENILES RIGHT TO REMAIN SILENT 2045 uncoerced statements made by the accused during the interrogation function as an implied waiver, and the statements are admissible in court. 99 1. Recent Application of Thompkins in United States Circuit Courts Since the Thompkins Court announced its bright-line rule requiring an affirmative invocation of the right to remain silent, federal courts have confronted various fact patterns that test the boundaries of the Thompkins ruling. In 2010, the Ninth Circuit held that a defendant unequivocally invoked his right to silence when he refused to re-enact the crime he was accused of committing. 100 The court analyzed the defendant s statements in context, and found that his responses of no and I don t want to do that unambiguously reflected his refusal to comply with police officers requests, and thus amounted to an invocation of his right to remain silent under Thompkins. 101 The defendant never explicitly stated he wished to remain silent, recounted his version of events to the interrogating officers, and offered explanations of why he did not wish to reenact the incident. 102 Regardless, the court reasoned that, in context, his statements of refusal to reenact the incident were sufficient to invoke his right to remain silent because a suspect still need not utter a talismanic phrase to invoke his right to silence. 103 More recently, in August of 2011, the Second Circuit held that a defendant s unequivocal refusal to sign a Miranda waiver form did not equate to an unambiguous invocation of his right to remain silent. 104 In that case, the defendant stated that he understood his rights and refused to sign a waiver form, stating that he was unsure whether he should talk to the officers and that he did not know if he needed a lawyer. 105 The defendant was then transported to a Federal Bureau of Investigation (FBI) office, placed in an interview room, and was told that if he wanted to make any statements this was the point. 106 The defendant then indicated that he wished to make a statement, was re-advised of his Miranda rights, ultimately signed a waiver form, and made various 99 Id. at 2262. 100 Hurd v. Terhune, 619 F.3d 1080 (9th Cir. 2010) (reversing the district court s judgment of conviction and granting federal habeas corpus relief). 101 Id. at 1088 89. 102 Id. at 1083 84. 103 Id. at 1089 ( [N]either the Constitution nor Miranda require a suspect to invoke his right to silence in a particular way. ). 104 United States v. Plugh, 648 F.3d 118 (2d Cir. 2011). 105 Id. at 121. 106 Id.

2046 CARDOZO LAW REVIEW [Vol. 34:2031 incriminating statements. 107 On appeal, the defendant argued that the interrogation should have stopped once he refused to sign the first waiver form presented to him because his unequivocal denial to waive his rights was equivalent to an invocation of his right to silence, and therefore should trigger the Edwards rule. 108 Ultimately, the court held that a refusal to waive one s rights, no matter how clear or unambiguous, does not equate to an unambiguous invocation of the right to silence, emphasizing that invocation and waiver require two distinct inquiries. 109 Both circuit opinions above exemplify the notion that even seemingly bright-line rules like the standard established in Thompkins can have unpredictable, fact-specific variances. The Ninth Circuit s opinion limits the Thompkins rule, allowing a defendant to selectively invoke his right to remain silent so long as the invocation is clear and unequivocal. In contrast, the Second Circuit s opinion extended Thompkins by creating an additional per se rule: an unequivocal refusal to sign a waiver form does not amount to an unequivocal invocation of one s rights. The Thompkins Court gave no indication regarding the application of its holding to juveniles, and thus courts as the Second and Ninth Circuit did are free to apply, limit, or extend the rule. 110 The federal 107 Id. 108 Id. at 125. 109 Id. (citing Smith v. Illinois, 469 U.S. 91, 98 100 (1984) (holding that the invocation of the right to counsel and the waiver of the right to counsel are two distinct inquiries, and [t]he importance of keeping the two inquiries distinct is manifest )). The Court further explained that the accused s postrequest responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself. Such subsequent statements are relevant only to the distinct question of waiver. Id. The federal district court in the Virgin Islands has similarly held that a refusal to sign a waiver form does not equate to an unequivocal invocation of the right to remain silent under Thompkins. United States v. Bell, No. 10-cr-0050, 2011 WL 2679120, at *8 (D.V.I. June 30, 2011) ( Defendant contends that his refusal to sign a written waiver form was tantamount to an invocation of his right to remain silent. Although an interesting argument, Defendant s refusal to sign is not the sort of unambiguous invocation required by Thompkins. ). 110 In addition to the federal circuit courts, some state courts have begun to grapple with the Thompkins holding. See, e.g., State v. Burns, 163 Wash. App. 1030 (Ct. App. 2011) (unpublished opinion) (reversing the trial court s finding that defendant s statement of well I don t want to talk about it man was equivocal and insufficient to invoke his right to silence under Thompkins). The court further stated that Burns invocation of his right to silence was not conditional.... It is not as if Burns was merely ruling out questions on the particular topic of whether retaliation was his motive for the robbery. He plainly did not want to talk about the robbery at all.... To conclude that Burns invocation of his right to silence was equivocal, the trial court appears to have relied on the fact that Burns continued to talk with the detectives after saying he did not want to talk about it. But the mere fact that Burns gave responses to the continued questioning does not render his earlier invocation equivocal. Id. at *3 4; see also State v. Olibarria, No. 1 CA-CR 09-0350, 2010 WL 2836984, at *4 (Ariz. Ct.

2013] JUVENILES RIGHT TO REMAIN SILENT 2047 constitutional standard regarding a juvenile s burden to invoke his right to remain silent is therefore yet to be decided; however, the Thompkins rule presents serious concerns regarding the protection of juveniles constitutional rights, particularly as courts begin to apply the Thompkins rule to juveniles. 111 D. J.D.B. v. North Carolina: The Court s Recognition of Age as a Factor in the Miranda Custodial Determination In June of 2011, in a five-four decision, the Supreme Court held in J.D.B. v. North Carolina that age must be a factor in the objective Miranda custody analysis. 112 Case law preceding J.D.B. firmly established that law enforcement officials are only required to inform the accused of his Miranda rights when he is determined to be in custody. 113 The objective custody determination consists of a twopronged inquiry: 1) an analysis of the circumstances surrounding the interrogation; and 2) a determination as to whether a reasonable person would have felt he or she was at liberty to terminate the interrogation and leave under those circumstances. 114 The custody analysis is objective in that the atmospherics surrounding the analysis must be based on a reasonable person s perception, without consideration of the subjective, or actual, perceptions of the person challenging the legality of the interrogation. 115 The J.D.B. Court held that age is an objective factor that must be considered as part of the totality-of-the-circumstances inquiry. 116 As long as a minor s age is known to the interrogating officer, App. July 20, 2010) (recognizing Thompkins, yet holding that a defendant s silence was sufficient to invoke the right to remain silent, and that the unique nature of the constitutional right to remain silent is that it may be exercised without saying anything ); Owens v. State, 937 N.E.2d 880, 891 (Ind. Ct. App. 2010) (citing Thompkins to find the defendant s mere lack of response insufficient to invoke his right to remain silent). 111 See People v. Nelson, 266 P.3d 1008 (Cal. 2012); supra note 76 and accompanying text; see also In re C.D., No. B230544, 2012 WL 57274, at *3 (Cal. Ct. App. Feb. 21, 2012) (applying the Thompkins rule to a 16-year-old defendant and rejecting the juvenile s request for his parent as a clear invocation of Miranda rights because the invocation of Fifth Amendment rights, whether it be the right to remain silent or the right to counsel, must be both unambiguous and unequivocal ). 112 J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011). 113 Stansbury v. California, 511 U.S 318, 322 (1994). 114 Thompson v. Keohane, 516 U.S. 99, 112 (1995). 115 J.D.B., 131 S. Ct. at 2402. 116 Id. at 2405 06. Other factors courts must assess to determine whether the suspect is in custody for Miranda purposes include the location, timing, and length of the interview, the nature and tone of the questioning, whether the defendant came to the place of questioning voluntarily, the use of physical contact or physical restraint, and the demeanor of all of the key players, both during the interview and in any proceedings held in court. Thompson, 516 U.S. at 118.

2048 CARDOZO LAW REVIEW [Vol. 34:2031 or would be objectively apparent to a reasonable officer, the Court ruled that age must be included in the officer s custody analysis at the time of the interrogation, and must be considered by a court analyzing the admissibility of the defendant s statement. 117 The Court found that consideration of a child s age still allows law enforcement officers to make an objective conclusion about the accused s susceptibility to coercion and does not require the officer to make any subjective determination about the mindset of a particular juvenile subject. 118 To support this holding, Justice Sotomayor reasoned that children are, as a class, more susceptible to outside pressures than adults. 119 Because the Miranda Court s rationalization for implementing the Miranda warnings was the inherently coercive nature of custodial interrogation, 120 an objective factor such as a child s age which invariably affects the accused s perception of intimidation and authority, must also be considered in the custodial analysis. 121 The Court further acknowledged that historically, our legal system has recognized children as inherently and categorically distinct from adults: No matter how sophisticated, a juvenile subject of police interrogation cannot be compared to an adult subject. 122 The Court explained that children possess an incomplete ability to understand the world around them 123 and, as such, must be treated differently than adults in our criminal justice system. 124 The majority referred to other 117 J.D.B., 131 S. Ct. at 2406. 118 Id. at 2404 05 (2011) ( [C]hildhood yields objective conclusions... among others, that children are most susceptible to influence....[c]onsidering age in the custody analysis in no way involves a determination of how youth subjectively affect[s] the mindset of any particular child. ) (internal citations omitted). 119 Id. at 2403. 120 Id. at 2401. 121 Id. 122 Id. at 2403 (citing Gallegos v. Colorado, 370 U.S. 49, 54 (1962)) (internal quotation marks omitted). 123 Id. at 2397. 124 Id. at 2403. Experts have also found that in addition to juveniles, the developmentally disabled are also especially susceptible to coercion, and that police, prosecutors, and courts must therefore adjust their interrogation tactics and analyses of confessions. Steven Drizin explains that in Broward County, Florida, after several mentally disabled men falsely confessed and were wrongfully incarcerated, the County made significant changes in its policy Because the developmentally disabled are easily persuaded and eager to please authority figures, detectives are trained to avoid leading or suggestive questions and questions that tell the suspect the answer the detectives expect. As a final check against false confessions, before a developmentally disabled suspect can be charged with a crime, each confession taken from a developmentally disabled suspect must undergo a thorough Post Confession Analysis by a unit supervisor, or, if there is no evidence corroborating the confession, by a team consisting of a psychologist, an assistant state s attorney, and a Criminal Investigation commander. This evaluation involves weighing numerous factors, including whether the suspect was able to provide an accurate description of the major and minor details of the crime and its scene, whether the suspect was able to identify unusual or unique elements of the

2013] JUVENILES RIGHT TO REMAIN SILENT 2049 legal institutions that treat children as a unique class. 125 For example, children cannot enter into a contract or get married without parental consent. 126 These well-known examples provide support for the conclusion that children are a unique class in the law. 127 While J.D.B. s holding was limited to the objective custodial analysis, it signals the Supreme Court s recognition of juvenile subjects of interrogation as a distinct class in the law, and affirms the notion that children must be treated differently than adults in custodial settings. 128 The J.D.B. holding therefore urges reconsideration of the current constitutional protections regarding juveniles right to remain silent, and specifically warrants limiting the application of the Thompkins rule to adult subjects of custodial interrogation. III. THE NEED TO SAFEGUARD JUVENILES RIGHT TO REMAIN SILENT A. Supreme Court Case Law and States Policies Reaffirm the Court s Holding in J.D.B.: Additional Protections for Juveniles Are Needed Throughout the twentieth century, courts and legislatures have recognized the special legal status that must be afforded to juveniles in order to protect their Fifth Amendment privilege against selfincrimination. 129 In 1948, over fifty years before the J.D.B. Court crime or its scene which were not publicly known, and whether the suspect provided information to the police that led to the discovery of other previously unknown evidence. Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. REV. 891, 1004 05 (2004). 125 J.D.B., 131 S. Ct. at 2403. 126 Id. at 2403 04. 127 Id. at 2404 ( Indeed, even where a reasonable person standard otherwise applies, the common law has reflected the reality that children are not adults. ). 128 In addition to the proposals set forth by this Note, J.D.B. arguably could be a game changer in all aspects of criminal cases involving minors. See Martin Guggenheim & Randy Hertz, J.D.B. and the Maturing of Juvenile Confession Suppression Law, 38 WASH. U. J.L. & POL Y 109 (2012) (examining J.D.B. and arguing that J.D.B. properly extended should not only require attorney consultation prior to and during police interrogation, but could potentially reform all confession-related law regarding minors). 129 The Supreme Court has similarly acknowledged the special status of juveniles in other contexts, for example in sentencing. In Roper v. Simmons, 543 U.S. 551 (2005), the Court held that the imposition of the death penalty for criminal defendants under the age of eighteen was cruel and unusual punishment and violated the Eighth Amendment. The Roper court reasoned that juveniles under age eighteen categorically have diminished culpability, and therefore because capital punishment must be limited to those offenders... whose extreme culpability makes them the most deserving of execution, the Eighth Amendment forbids the imposition of the death penalty upon children under age eighteen. Id. at 553. In 2010, the Court declared the imposition of a life sentence without the possibility of parole (LWOP) for a juvenile who did not commit homicide unconstitutional because it violated the Eighth Amendment s cruel and unusual punishment clause. Graham v. Florida, 130

2050 CARDOZO LAW REVIEW [Vol. 34:2031 acknowledged age as a factor in the objective custody inquiry, 130 the Court held in Haley v. Ohio 131 that a fifteen-year-old boy s confession to a murder during five hours of police interrogation was inadmissible as a violation of due process, and should have been excluded. 132 The Court acknowledged that a fifteen-year-old boy should not be held to the same standard of a mature adult and therefore when the accused is a child, the reviewing court must take special care to evaluate the circumstances surrounding a confession. 133 Similarly, in 1962, the Supreme Court held the confession of a fourteen-year-old boy inadmissible because it was obtained in violation of due process. 134 The Court reasoned that because of his youth, the defendant could not adequately protect his own constitutional rights or comprehend the consequences of his answers to police questioning. 135 The Court found that this fourteen-year-old defendant who was arrested and held in police custody for five days, denied visits from his mother, and denied access to counsel, was deprived due process of law because his treatment by police was psychologically coercive and resembled secret inquisitions, which offend notions of due process and the compulsion... condemned by the Fifth Amendment. 136 As it did in Haley, the Court emphasized the boy s youth as a significant S. Ct. 2011 (2010). In so doing, the Court recognized the enhanced susceptibility of juveniles. Id. at 2026 ( As compared to adults, juveniles have a lack of maturity and an underdeveloped sense of responsibility ; they are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure ; and their characters are not as well formed. ). More recently, in 2012, the Court held that a mandatory sentencing scheme requiring a judge to impose an LWOP sentence upon juvenile homicide offenders violated the Eighth Amendment s ban on cruel and unusual punishment. Miller v. Alabama, 132 S. Ct. 2455 (2012) The Miller Court, building upon Roper and Graham, reasoned that children are constitutionally different from adults for purposes of sentencing. Because juveniles have diminished culpability and greater prospects for reform... they are less deserving of the most severe punishments. Id. at 2464 (citation omitted). Specifically, the Court found that Roper and Graham relied on three main distinctions between adults and children: 1) juveniles immaturity and underdeveloped sense of responsibility ; 2) increased susceptibility to outside pressures, and inability to change their environment; and 3) a child s character is not well formed and his actions are less likely to be evidence of irretrievabl[e] deprav[ity]. Id. at 2458. The Miller court described childhood as a moment and condition of life when a person may be most susceptible to influence and to psychological damage. Id. at 2467 (citations omitted). 130 See Guggenheim & Hertz, supra note 128, at 109, 154 57 (arguing that J.D.B. marks a return to the special protections for youth that the Court previously employed through its due process clause jurisprudence, particularly in Haley and Gallegos). 131 332 U.S. 596 (1948). 132 Id. at 607. 133 Id. at 599 ( And when, as here, a mere child an easy victim of the law is before us, special care in scrutinizing the record must be used. Age 15 is a tender and difficult age for a boy of any race. He cannot be judged by the more exacting standards of maturity. ). 134 Gallegos v. Colorado, 370 U.S. 49 (1962). 135 Id. at 53 54. ( Without some adult protection against this inequality, a 14-year-old boy would not be able to know, let alone assert, such constitutional rights as he had. To allow this conviction to stand would, in effect, be to treat him as if he had no constitutional rights. ). 136 Id. at 50 51.