New juvenile justice law raises concerns

A state law meant to protect juveniles inspired strong feelings in Island County’s justice system.

A state law that is meant to protect juveniles from pressure or coercion from police officers has inspired strong feelings in Island County’s law and justice system.

Oak Harbor Police Chief Kevin Dresker has been a leading voice in opposition to RCW 13.40.740, which he sees as an unnecessary hindrance to investigations. He has voiced his concerns in press releases about juvenile-related crimes, during an interview on a Seattle radio show and in his work with the Washington Association of Sheriffs and Police Chiefs.

His opinion is shared by Island County’s sheriff and prosecutor, though defense attorneys have a different point of view.

The law requires law enforcement to provide people under 18 years old with access to an attorney before the juvenile can waive his or her constitutional rights and answer questions, unless the information sought is necessary to protect someone from imminent harm or the child is suspected of being a victim of trafficking. The consultation with an attorney cannot be waived.

Inevitably, the attorney advises the juvenile not to talk to police and the juvenile remains silent. The state has funded a 24-hour attorney hotline for juveniles.

The law, which went into effect at the beginning of the year, is one of several police reform laws from the last few years that have caused consternation among law enforcement officials in the state.

From the point of view of Oak Harbor police, the timing of the juvenile law was unfortunate. This year officers have investigated a string of serious crimes in which juveniles were witnesses and alleged perpetrators. Juveniles have been charged with serious assaults, a robbery, commercial burglaries and threats of shootings at schools. Detectives are currently investigating a homicide and a sexual assault involving juveniles.

Dresker said the law has severely hampered many investigations by preventing police from talking to suspects and, in some cases, witnesses. In his experience, it’s very rare for anyone — whether it’s adults, juveniles, suspects or witnesses — to talk to police after being advised by an attorney.

To Dresker, it’s also an issue of accountability. He said the juvenile justice system is most effective when juvenile defendants, especially first-time offenders, are held accountable and learn from their mistakes. People involved in crimes, he said, usually want to talk to police and doing so is part of the process of taking responsibility.

The chief believes the law should teach children to be honest and ethical, not to obfuscate.

“If you do something wrong and get caught, talk, be honest, accept the repercussions and move on with your life,” he said.

Dresker also sees the law as another example of the government impeding parental rights.

On the other hand, Whidbey Island attorney Brent Thompson said in an email that the law essentially codifies Miranda rights, which are the constitutional rights to remain silent and have access to an attorney.

“Juveniles oftentimes do not understand or know their rights, and are more susceptible to being misled by law enforcement,” he said. “Many are tricked into thinking that if they do not cooperate or assert their rights, they will be punished even further. Therefore, requiring access to counsel helps reinforce rights already enshrined in the constitution.”

Statistics show that juveniles, as compared to adults, are much more likely to waive their Miranda rights. A story in the American Bar Association, “Police Routinely Read Juveniles their Miranda Rights, But Do Kids Really Understand Them?,” stated that juvenile advocates claim it’s rare to find youngsters who understand their rights.

Issues of false confessions and racial justice were also discussed during hearings on the bill. The Washington Innocence Project reported that the convictions of about a third of people exonerated of crimes through DNA were the result of false confessions. About a third of the people exonerated of murder were juveniles when they were accused of committing the crimes.

During a hearing on the bill, Katherine Hurley of the King County Department of Public Defense argued it was a positive step in confronting racial injustice. The rates of juvenile incarceration of Black people, for example, is triple their representation among the total state population.

“We know when we don’t respect young people, when we don’t ensure they know their rights, they lose faith in our legal system and that makes all of us diminished and devalued,” she said.

Yet Island County Prosecutor Greg Banks agrees with Dresker’s concerns. He said in an email that the statute provides unnecessary protections well beyond what the constitution requires. He said he doesn’t have a problem with juveniles being susceptible to reasonable pressure since it helps them to be good adult citizens.

“I got into my share of trouble as a juvenile,” he said. “I think I would be worse off today had some lawyer swooped in and saved my bacon, or told me not to do and say what I knew in my heart was the right thing to do and say.”

Banks also pointed out that the juvenile justice system already provides children with extra protections far beyond what adult defendants get. Their standard sentence ranges are much shorter, they get “several bites at the apple” under agreements that divert prosecution and, even if prosecuted, their sentences can be deferred. Their records are sealed when they turn 18 years old.

The law can hinder investigators’ ability to solve crimes and seek justice for victims. Banks pointed to several gray areas in the law due to the “poor drafting” that essentially leave police and prosecution guessing. It’s unclear from the law, for example, if statements police officers obtain from a juvenile whom they are not interested in prosecuting can be used in a criminal case against another defendant — whether adult or juvenile — if the juvenile wasn’t given access to an attorney.

Banks and Dresker said the law can be impractical in some cases, like at a scene of a crime where numerous kids are witnesses. At the beginning of the investigation, police have no idea who is a witness and who is a suspect, so they may feel they need to provide them all access to the state’s 24-hour attorney hotline.

“Now, even a kid who was not a participant and wanted to cooperate and be a good citizen is going to be told by an adult lawyer, ‘Do not talk to the police,’” Banks said. “Basically, the legislature has institutionalized and funded a ‘don’t be a snitch’ policy. How does that improve accountability or protect public safety?”

Dresker pointed to a burglary at a marijuana shop in which an officer witnessed four masked juveniles exit the store through a smashed window. One of the suspects got away with a sizable amount of merchandise. The chief explained that the 14-year-old suspects wanted to talk to police and at least one parent wanted their child to talk, but the defense attorneys advised the juveniles not to speak and they followed the advice.

“If we had talked to them, it’s likely we would gave gotten the fourth person and the business would have gotten back its merchandise,” he said.

Island County Sheriff Rick Felici said he agrees that there are problems with the law, although his office deals with relatively few juvenile crimes. He has been active in communicating with state lawmakers about law enforcement concerns with the series of police reform laws and hopes that many of the problems will be fixed in follow-up legislation. For deputies, the law restricting police pursuits has been especially troublesome.

While Dresker said he believes that juveniles do need an extra level of legal protection, he thinks that should be done within the courts. He suggested that a good alternative to the law would be a requirement that all conversations with police, including the reading of Miranda rights, are recorded on video. Then a judge or jury would be able to watch and determine if a juvenile understood his or her rights.