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  • Marsha Levick

SCOTUS Should Enforce Protections for Children During Police Interrogations

For decades, the Supreme Court has protected children from a variety of excesses and abuses in our justice system—but its work is not done.

On June 14, the U.S. Supreme Court is expected to consider whether to take the case of Brendan Dassey—the intellectually impaired Wisconsin teenager who falsely confessed to participating in the 2005 killing of Teresa Halbach. Because Dassey’s case raises crucial issues concerning the way impaired children are protected—or not—during police interrogation, the high court should agree to hear his case.

Dassey‘s story was captured in painstaking—and painful—detail in the Netflix docuseries “Making a Murderer.” Millions watched in horror as interrogators questioned the 16-year old without an adult by his side and fed him a false narrative that he eventually was duped into accepting. Using calculation, prodding and feigned concern for his welfare, a pair of interrogators skillfully persuaded Dassey to admit killing someone for whom there is no evidence he ever even met.

Viewers of the series readily cried “foul” as the mismatch between an intellectually and socially limited boy and his seasoned adult interrogators become glaringly obvious. As a lawyer for children for more than four decades, I could barely resist hurling myself at the virtual travesty unfolding before me. After confessing to the murder, Dassey’s primary concern was whether he would still have time to complete a school assignment; his complete lack of understanding of the jeopardy he faced was stunning.

Despite overwhelming popular sentiment that Dassey was coerced into giving a false statement, the state and federal courts have denied him relief. After a federal district court and a panel of appellate judges ruled in his favor, the en banc U.S. Court of Appeals for the Seventh Circuit upheld the constitutionality of his interrogation and confession by a 4-3 vote. Seth Waxman, the former U.S. solicitor general who several years ago successfully argued the case that ended the juvenile death penalty, has now joined Dassey’s team in an effort to get the Supreme Court to take Dassey’s case.

The high court is literally the last chance for Dassey. If the court does not review and reverse the lower court rulings, Dassey may have to serve out the remainder of his life sentence in a Wisconsin prison. He will not be eligible for parole—which is no guarantee—before 2048, when he will be nearly 60 years of age. But there is much more at stake in this case than Dassey’s timely release from his own nightmare. Children who are left to face experienced detectives on their own will continue to populate our prisons with other Dasseys. These vulnerable youth are easily tricked into falsely confessing to murder and other serious crimes because of their inability to comprehend, appreciate or navigate a complicated criminal justice system that regularly trips up even mature adults.

Forty years ago, the Supreme Court held that confessions from juveniles must be evaluated with “special care” to account for adolescents’ vulnerability to the psychological tactics of contemporary police interrogation. But in the intervening decades, lower courts have too often ignored this requirement, regularly paying mere lip service—if that—to the ways in which a defendant’s youthfulness affected the voluntariness of his confession. This unwillingness to follow long-established Supreme Court precedent is all the more unreasonable in light of recent scientific research confirming the developmental differences between youth and adults, and the Supreme Court’s own wholehearted embrace of this research. Since 2005, the court has issued five decisions upending adult sentencing for youth and rewriting the rules for determining when youth are in custody with regard to the administration of Miranda warnings.

Dassey’s case is not an anomaly. His is only one among many false confessions by children. Indeed, research shows that children are responsible for a disproportionate number of false confessions nationwide. Research also explains why: children are highly susceptible to the psychologically coercive tactics employed by police today. They are also unskilled and uninformed of the risks they face during the course of an interrogation. While the Miranda rule was intended to give suspects an opportunity to seek the assistance of counsel before speaking with police, these admonitions are often lost on children who lack the intellectual awareness or sophistication to protect themselves. Children with educational disabilities or mental health challenges are even more compromised in these settings.

For decades, the Supreme Court has protected children from a variety of excesses and abuses in our justice system—but its work is not done. Children like Dassey cannot negotiate a closed interrogation room or often even understand the pressures, promises or falsehoods thrown at them by police to extract confessions. After several hours of questioning by police about a murder they believed he participated in, Dassey’s only concern was getting back to school. What greater proof does one need that his “confession” was not knowing, intelligent or voluntary? The answer, which only the Supreme Court can provide, is none.

Marsha Levick is deputy director and chief counsel of the Juvenile Law Center. She is counsel of record on an amicus brief in support of petitioner Brendan Dassey submitted by juvenile law experts, including the Juvenile Law Center, in Dassey v. Dittmann.


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