Illinois Bar Journal

July 2016Volume 104Number 7Page 12

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Clearer Miranda warnings, lower minimum probation for juveniles

One bill would require child-friendly Miranda warnings, while another reduces the length of mandatory minimum probation.

At the end of May 2016, the General Assembly passed two juvenile justice bills, which at press time have not been signed by Governor Rauner. SB 2370, which passed the Senate on a unanimous roll call, expands protections for children who are in police custody. HB 6291 is designed to bring Illinois law in line with other states by reducing mandatory minimum probation lengths. It also treats low-level drug offenses as a public health issue, not a criminal one.

Both bills received support from the Juvenile Justice Initiative (JJI), which was founded in 2000 as a collaboration between the Woods Fund of Chicago and the John D. and Catherine T. MacArthur Foundation. Its mission is to reduce reliance on incarceration, enhance fairness, and develop community-based resources throughout the state.

Child-friendly Miranda warnings

SB 2370 touches directly on the Miranda rights of children. Currently, children can waive their Miranda rights without the advice of a lawyer. However, according to a policy paper released by the JJI, only 20.9 percent of minors understand Miranda warnings. Even more problematic is that 63.3 percent of minors fail to understand at least one critical word in the Miranda warnings. In fact, 62 percent of minors mistakenly believe that a judge can penalize them for exercising their right to remain silent.

The bill creates a new Miranda warning that is specifically tailored to help minors understand their rights. The initial warning is as follows: "You have the right to remain silent. That means that you do not have to say anything. Anything you do [or] say can be used against you in court. You have the right to get help from a lawyer. If you cannot pay for a lawyer, the court will get you one for free. You can ask for a lawyer at any time. You have the right to stop this interview at any time."

After providing that warning, two questions must be asked: "Do you want to have a lawyer?" and "Do you want to talk to me?" These modified warnings are important. Not only are children more likely to misunderstand a traditional Miranda warning, but police are allowed to misrepresent evidence when questioning minors.

Additionally, the written, oral, or sign language statement of a minor is presumptively inadmissible if the minor could be charged with a felony or misdemeanor sex offense. If law enforcement wishes to avoid this presumption, then custodial interrogations of a minor must be videotaped. Children under 15 must be provided with a lawyer during custodial interrogations for homicide or sex offense cases.

According to the JJI, "false confessions by children are common…statements made by minors during a custodial interrogation place them at risk of adult trial and adult prison sentences." By requiring that a lawyer be present, the bill would help reduce the number of false confessions and provide children with much-needed protection.

Lower mandatory minimums

The other bill, HB 6291 seeks to protect children from counterproductive mandatory minimum lengths of probation. The JJI says that Illinois is an outlier in requiring mandatory five-year probation sentences. Moreover, judges in 48 states have the discretion to decide when to terminate probation and its length.

The proposed bill would keep a five-year mandatory minimum probation period for murder, but would reduce the minimum sentence for Class X felonies to two years. Class 1 and 2 forcible felonies would merit at least an 18-month probation.

Even more importantly, the bill would ban commitment for children charged with class 3 and 4 felonies under the Illinois Controlled Substances Act. This provision takes a three-strikes approach, expiring after a youth has a third judicial finding of a violation of probation for "substantial noncompliance with court ordered treatment or programming." It treats youth struggling with addiction as a public health issue rather than a criminal one.

By reducing mandatory minimum probation periods and keeping certain minors out of the system, the bill can save significant resources. The JJI says that over 1,600 youth are on mandatory five-year probation in Cook County at any given time. Their compliance with the terms of their probation is not a factor.

The JJI estimates that the changes effectuated by the bill could reduce juvenile probation caseloads by 700 youth in Cook County alone. By giving the system latitude to end probation early, and by imposing shorter periods for specific offenses, the bill will allow probation to focus on youth who are non-compliant or high-risk.

Although there has been no indication whether the governor will sign the bill, it does seem to track with his campaign platform, which advocated for reducing prison populations as a means of saving money.

Matthew Hector
Matthew Hector is a senior associate at Woerthwein & Miller.

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