Police reforms should make the right to legal representation real

Alejandro Barba of First Defense Legal Aid spoke at the Police Accountability Task Force community forum in Pilsen on Feb. 23, 2016. "It seems the more these young individuals know about their rights the more abuse they receive from police in their neighborhoods," Barba said. "And once they arrive at police stations they are denied access to a lawyer."

Photo by Stacey Rupolo

Alejandro Barba of First Defense Legal Aid spoke at the Police Accountability Task Force community forum in Pilsen on Feb. 23, 2016. "It seems the more these young individuals know about their rights the more abuse they receive from police in their neighborhoods," Barba said. "And once they arrive at police stations they are denied access to a lawyer."

“You have the right to remain silent….You have the right to have a lawyer present during questioning….”

We’ve all heard it a thousand times from TV cops. In fact, the right to counsel is a constitutional right established by the U.S. Supreme Court in the 1966 Miranda decision.

But in Chicago, only a miniscule number of people exercise that right during police interrogations.  Last year, over 113,000 people were arrested and only 702 attorney visitor request forms were filed, according to the Police Accountability Task Force.

That means only about 6 in 1,000 Chicagoans exercised the right to legal representation while in police custody.

The reason is simple, according to Eliza Solowiej of First Defense Legal Aid: the Chicago Police Department doesn’t give arrestees access to telephones until after they’ve been processed, questioned and charged.

The task force has issued four very simple recommendations to remedy the problem – but, to date, they have been ignored.

Mayor Rahm Emanuel has backed several of the task force’s biggest recommendations, including replacing the Independent Police Review Authority and establishing a community oversight board and an inspector general for public safety; other major items remained unaddressed, including revamping community policing and eliminating provisions from police union contracts that enable the code of silence.

But taking steps to “make real” the right to representation “seems like super low-hanging fruit” from among the task force’s many recommendations – and would remove a significant cause for the widespread feeling that Chicago police aren’t concerned with protecting the rights of residents, Solowiej said.

The task force called for a city ordinance and a CPD general order mandating that arrestees be given access to phone calls within one hour of their arrest – a standard several states have already set.

Illinois law and CPD directives currently establish the right to communicate with a lawyer within “a reasonable time” after arrest. But it often takes eight hours – and sometimes as long as 48 hours – for arrestees in Chicago to get access to a phone.

Those hours are crucial because police can employ a variety of interrogations techniques, many of which have the potential to elicit false confessions.  Allowing detainees to have access to attorneys would save the public some of the extensive costs of wrongful convictions, Solowiej said.

She’s in a position to know: with a 24-hour hotline, a small staff and large number of volunteer lawyers, First Defense provides free legal counseling and representation for people in police custody. (Public defenders aren’t provided until an individual is arraigned before a judge.) The group also conducts “street law” trainings in schools and community centers.

For juveniles, the task force recommends that CPD go further and contact a legal assistance provider on the arrestee’s behalf – and wait until an attorney arrives before proceeding with questioning.  The task force also calls for instituting a “Know Your Rights” curriculum in city schools.

“It makes sense to have extra protections for juveniles, who are the most vulnerable” ­– and particularly susceptible to tactics that induce false confessions, Solowiej said.

She notes that CPD has made some changes to improve access to legal representation.  Until recently, confusing wording in a departmental directive led many desk sergeants and officers to maintain that juveniles could only be visited by family members, or that attorneys needed the permission of guardians to meet with juveniles.  In fact, “juveniles – of course – have a constitutional right to an attorney that only they can waive,” said Solowiej.  Last spring, CPD issued a memo which was read repeatedly at roll calls clarifying the order, she said.

And for a long time, attorneys had a notoriously difficult time finding out whether their clients were in custody, and if so, where.  That situation was improved by changing computer code so that arrest information could be entered into the system without supervisory approval, Solowiej said.

The department is also moving to come into compliance with state law requiring that posters in police stations informing arrestees of their right to counsel and to phone access, she said.  But they’ve refused to post contact information for nonprofit legal assistance services.

The task force recommends that contact information for legal services be posted in stations, and that a public service announcement campaign – and informational videos shown in stations – “ensure that arrestees are made aware of their constitutional rights.”

Today there’s much talk of changing police culture and breaking down the department’s code of silence.  Allowing greater access to legal representation would be a big step in that direction, Solowiej said.

“Now the only people present inside police stations are police officers, prosecutors and arrestees,” she said. “Everything happens behind closed doors.”