While her son spent 891 days in Maryland juvenile detention over a stolen cell phone, Keisha Hogan found her voice.
This month — seven years after her son was released — she delivered an impassioned speech to state lawmakers, asking them to support proposed legislation that would prevent other Maryland youth from being incarcerated under similar circumstances.
Her son was 13 when he got arrested, his first encounter with the juvenile justice system. A judge ordered him to complete a 90-day wilderness program, a decision that went against advice from juvenile caseworkers who recommended a letter of apology and counseling. When his behavior continued to deteriorate, the judge ordered another placement then another — until more than two years had passed.
“When he finally came home, it was like letting a caged animal out,” Hogan said. “He lost things that nobody can give back.”
Months later, he was again entangled in the justice system, this time for vehicle theft. He landed in adult prison.
“I would absolutely say the juvenile system in Maryland created a criminal,” Hogan said in an interview this week. “If you want to know how to create a criminal, go interview my son.”
After years of research and discussion, state lawmakers are considering a bill sponsored by Sen. Jill P. Carter, a Baltimore Democrat, that would reform the Maryland juvenile justice system, including by establishing new sentencing rules. Among the changes included in her so-called omnibus bill: no confinement for first-time misdemeanor offenses, unless the crime involves a gun.
That legislation — along with another bill from Carter that would require police to notify parents and let children talk to attorneys before law enforcement interrogations — represents the latest attempt by Maryland lawmakers at reforming the juvenile justice system.
Both bills have already passed in the Senate and are awaiting a final vote in the House, which would send them to the governor’s desk.
“This is a huge success,” said Jenny Egan, who oversees the Baltimore juvenile division for the Office of the Public Defender. “We have to stop using cages as a backstop whenever the system fails our children.”
Supporters of the bills call them a step forward in how the state treats at-risk children. But opponents, including some prosecutors, warn of unintended consequences and risks to public safety.
William Katcef, assistant state’s attorney in Anne Arundel County, testified in opposition to the omnibus bill during a recent committee hearing, arguing the proposed changes go too far in allowing children to avoid charges or detention even for some serious crimes. He spoke on behalf of the Maryland State’s Attorneys Association.
“There are any number of offenses that are misdemeanors that are pretty serious,” he said, referencing the incarceration limits. “I just don’t think what’s contained here … really makes any sense.”
Carter, who sponsored the bills, said the overarching goal is public safety.
“Children are different than adults. Despite this obvious truth, in our juvenile justice system, they are treated as if they are small adults,” she said during the recent committee hearing about the omnibus bill. “Juvenile court was never intended to mediate schoolyard squabbles or mete out punishment for childish mistakes.”
She said giving kids opportunities to make better choices and showing them pathways out of crime could yield significant rewards down the line.
“I feel strongly that once you stigmatize children and label them bad or not worthy, you almost create a fait accompli,” she said. “The way we create a better future is by making sure we meet the needs of our children now.”
‘Can you imagine what that does to kids?’
Prior to the coronavirus pandemic, two-thirds of incarcerated youth in Maryland were locked up on misdemeanors or probation violations, state data shows. That number has since fallen to about 40%, largely due to efforts to reduce the juvenile jail population during COVID-19, Egan said.
She said reducing the population even further will allow the Department of Juvenile Services to focus more resources and rehabilitation efforts on children displaying the riskiest behaviors.
“Can you imagine what that does to kids, locking them up when they’re trying to find their place in the world?” she said. “What does it mean when adults tell you that you belong in handcuffs and a cell?”
Research has shown that juvenile confinement tends to increase the odds that a young person will be rearrested in the future, in part because they get exposed to older kids who model criminal behavior.
According to a 2015 study commissioned by the Maryland Department of Juvenile Services to analyze its practices, whether a juvenile defendant ends up incarcerated depends largely on the jurisdiction of their case and the individual judge, which creates significant racial disparities in some communities. The study also found that Maryland youth were more likely to be incarcerated for a probation violation than a violent crime: roughly a 47% likelihood compared with about 19%.
Supporters said the proposed legislation would place much-needed limits on the discretion of individual judges tasked with sentencing juvenile defendants.
In addition to banning incarceration for most minor offenses, the so-called juvenile justice omnibus bill would set a minimum age for children to face criminal charges: 10 for the most serious crimes and 13 for everything else.
Data shows 76 children 8 and under were arrested in 2019, though that number dropped to 20 last year.
The bill also seeks to set time limits for juvenile probation and improves access to diversion programs. As the system operates now, youth receive indefinite probation terms that end only once a judge has deemed them ready.
Sam Abed, secretary of the Maryland Department of Juvenile Services, said he supports the legislation, which resulted from the work of a bipartisan coalition. He said the department is “ready and able to implement this” if the bill becomes law.
A third bill proposed restrictions on the types of crimes that result in children being automatically charged as adults, but that legislation has gained little traction this session, which ends April 11. Advocates say they plan to reintroduce it next year.
‘Treat children as children’
The other major juvenile justice bill moving through the General Assembly addresses police interrogations of children, who are more likely to waive their Miranda rights — often because they don’t understand the consequences — and provide false confessions, advocates say.
Senate Bill 53 would add steps to the process before an officer can interrogate a child: Police would first have to tell a parent, guardian or custodian where the child was going and why. And an officer wouldn’t be able to do an interrogation until the child had consulted with an attorney.
Prosecutors argued the bill would essentially become a “roadblock” to police investigations. If a police officer has to get defense attorneys’ permission for interrogations, said Laura Wilt from the Frederick County State’s Attorney’s Office, “that investigation is effectively over.”
“Anyone speaking truth will tell you that the attorney will advise the youth to not speak to the police every single time,” Wilt said.
But supporters emphasized that the added requirements would not apply to investigatory questions — only to formal interrogations occurring after police have identified a suspect and read the person their Miranda rights.
An officer would be allowed to interrogate a child without first following the notification requirements under the bill if the information sought “is necessary to protect against a threat to public safety” — a source of immediate danger like an active shooter or bomb threat, according to Egan.
The bill additionally calls for any interrogation to be recorded and asks the state Court of Appeals to adopt rules around age-appropriate Miranda warning language to advise children of their rights.
Young people, whose brains are still developing, might have less impulse control and be more prone to risk-taking, more susceptible to the promise of immediate rewards and more likely to comply with authority, said Melissa Goemann, senior policy counsel for the National Juvenile Justice Network, an advocacy organization and membership network.
“If we treat children as children, then they will, one, develop greater trust in the system and be more receptive to getting help if it’s needed,” Goemann said. “And [they] will grow and develop in a more positive trajectory, in terms of getting a better education and being able to be a productive member of society in the future.”
To Carter, the change marks a way of protecting children: “Due process for children is something everybody should embrace,” she said.
California and Washington have passed similar laws mandating a child has a consultation with an attorney prior to an interrogation. Others have required recorded custodial interrogations and age-appropriate Miranda warnings. Some have also banned lying or using deception in youth interrogations, a step Maryland’s bills do not take.
Studies have found youth are overrepresented in false confessions; 63% of false confessors in one study examining 125 proven false confessions between 1971 and 2002 were under 25 years old.
Egan from the public defender’s office said she has “no doubt” it’s possible to implement a system for counsel consultation across the state. Baltimore has something similar in place already, due to requirements in the police department’s federal consent decree, she said.
And, to supporters, the benefits far outweigh any logistical challenge.
“Even as adults, when we’re in intimidating situations, we pretend we know what people are talking about,” Carter said. “Having a lawyer there is just to make sure these children understand their rights.”
