Author: Nicole Porter, N.A. PORTER & ASSOCIATES
The Issue at Hand
Every time we post an article about wrongful convictions, it tends to re-open the discussion among the community about how easily a miscarriage of justice can occur. This is certainly a step in the right direction, because the public should know the truth about how easily, in fact, a wrongful conviction can occur. Using the assumption that one percent of those imprisoned are innocent, yet punished nonetheless, the most recent data would suggest that for every 100,000 people serving time, 1000 of those are actually innocent. What is even more troubling is the fact that a terrifying number of them are juveniles.
There is no doubt about it: Young people are simply more likely to be wrongfully convicted than adults. There are many reasons for this, many of which are rooted in the special developmental vulnerabilities of children. For example, children and teenagers are categorically more suggestible, compliant, and vulnerable to outside pressures than adults. They are less able to weigh risks and consequences; less likely to understand their legal rights; and less likely to understand what a lawyer does or how they can help them. For a host of reasons, children are considerably more vulnerable to false confessions. For example, their inability to fully comprehend the implications of a false confession, or their lack of developed coping skills for handling stressful situations (like an interrogation).
The issue of helping wrongfully convicted kids is a crucial one. There should be awareness made to the several varying factors that often lead to such wrongful convictions. Special focus should be made on the following key issues:
False confessions are one of the leading causes of wrongful convictions, accounting for roughly 25% of all convictions that were later overturned based on DNA evidence. Indeed, as the U.S. Supreme Court acknowledged in 2009, “There is mounting empirical evidence that these pressures [associated with custodial police interrogation] can induce a frighteningly high percentage of people to confess to crimes they never committed.”
The risk of false confession is troubling and acute, especially when the subject of custodial intervention is a juvenile. One leading study of 125 proven false confession cases found that “63% of false confessors were under the age of twenty-five and 32% were under eighteen”. Another respected study of 340 exonerations found that juveniles under the age of eighteen were three times as likely to falsely confess as adults. Leading law enforcement organizations, such as the International Association of Chiefs of Police, also agree that children are particularly likely to give false confessions during police interrogation.
The witnesses presented against children are often children themselves. The same interrogation tactics that can cause youthful suspects to falsely confess, however, can also cause youthful witnesses to falsely implicate their peers. Those witnesses may be particularly vulnerable even to unintentional suggestion during police interviews, line-ups, and other eyewitness identification procedures. This could be due partly, to an inherent desire to please authority figures or, a simple desire to end an unpleasant experience (like being at a police station). The result is that – often at the urging of police – some youth give statements blaming other kids so that they can go home. The reality is, they’ll simply say what the uniforms want to hear if it means they can leave the police station.
Rights to Counsel
Researchers have concluded that most youth – even those who might be considered “street-smart” – simply do not understand their Miranda rights to counsel and to remain silent. Accordingly, these children do not exercise those essential rights and are thus left alone during many police interrogations, without the assistance of a lawyer, a friendly adult, or in some cases, even their parents. Too often, the child’s resulting statement is involuntary or simply unreliable.
Overcharging, Transfer, and False Guilty Pleas
Once a young person has been charged with a serious criminal act, so-called “transfer” laws often require those charges to be heard in adult criminal court, where the defendant may face longer prison sentences. To avoid risking such sentences, youth often agree to plead guilty in exchange for less prison time – even if they did not actually commit the crime(s) in question. One leading study of 125 false confession cases revealed “14 cases in which innocent defendants eventually pled guilty to crimes they did not commit (11%). Of the first 289 DNA exonerations, similarly, 28 innocent defendants had pled guilty (10%).” It stands to reason that the rates of false guilty pleas are probably much higher even than these statistics reflect, since our friends in the U.S. can attest, as 97% of their federal convictions and 94% of their state convictions are the result of guilty pleas. In Canada, it appears that about 90% of criminal cases are resolved through the acceptance of guilty pleas: many of these pleas are the direct outcome of successful plea negotiations between Crown and defence counsel.
Ineffective Assistance of Counsel
The reality is that it can be very hard to represent a child (or teenager). Youthful defendants may have particular difficulty understanding criminal proceedings or actively participating in the process. They may also be disinclined to trust anyone they don’t know – even their own lawyer. For this reason, counsel who represent children need to take additional care and time to build rapport. Counsel should also be attuned to the special issues that juvenile cases present, including suggestibility, adolescent development, and juvenile false confessions. Too often, however, lawyers do fail to take these steps and thus fail to prepare adequate defenses for their youngest and most vulnerable clients.
There are many reasons to believe that juvenile court can be a breeding ground for wrongful convictions. For example, fact-finding in juvenile court is usually performed by judges who may already be familiar with the minor through previous court proceedings – meaning that more often than not, judges are assuming guilt of the accused based on prior bad acts. Lesser penalties in juvenile court, too, provide powerful incentives for accused children to plead guilty to crimes they did not commit in order to avoid more serious charges in adult court.
Access to Post-Conviction Relief
In much of the U.S., defendants who are adjudicated delinquent in juvenile court do not have access to the types of post-conviction legal vehicles that have traditionally been used by adult defendants to exonerate themselves. In Illinois, for example, “the courts have specifically held that juveniles are barred from seeking relief under the state’s Post-Conviction Act.” The result is a contorted system in which children may be more likely to be wrongfully convicted. However, in many cases, they are less able than adults to re-open their cases in order to prove their innocence.
The sad reality is, that innocent people do accept false guilty pleas every single day. Approximately 90% of all criminal cases in Canada are resolved prior to going to trial with plea bargains or withdrawals by the Crown. The potential for false guilty pleas remains a significant concern as, of the approximately 450,000 accused in Canada’s criminal justice system, the majority plead guilty.
Even a small percentage of false guilty pleas could mean thousands of innocent people incarcerated or living with a criminal record. People who were told accepting a deal, despite their claims of innocence, would mean a lighter sentence. Many clients were told by pleading guilty, they could avoid trial and mandatory minimums. So, there are examples every day all over the country, where people accept a deal based on the recommendations of counsel, essentially convicting them for crimes they did not commit in the first place. Often, it is the result of trying to end the matter as quickly as possible or in an effort to avoid possible incarceration. At the end of the day, people who do not feel as if they can beat the charges may accept a plea bargain in order to get more favourable sentencing.
The role of lawyers and judges in preventing false pleas, becomes especially important here. Experts estimate that false guilty pleas are increasing in Canada, and that they are largely going undetected.
Lawyers’ and Judges’ Responsibility
It is the responsibility of lawyers and judges alike to not allow an innocent person to plead. A criminal lawyer should help prevent their clients from feeling as though there is pressure to enter a false plea, ensure they fully understand their options and repercussions and provide confidence that an innocent person can overcome their charges.
Many suggestions have been made over the years for how this can be avoided in future. While recent developments in crime solving techniques, like DNA sampling and forensic chemistry, have advanced in leaps and bounds in the last decade or so, we are certainly by no means, out of the woods yet. Detailed recordings made of every interaction between officers and suspects would also help as well; thus eliminating issues like accidental contamination of the interrogation. Another possible solution is juvenile interviews being conducted by forensic interviewers who are not affiliated with police or prosecutors.
Regardless, something needs to change, and it needs to change now. Children are our greatest resource, our future… and we cannot continue to incarcerate them for crimes they did not commit.