Preventing Wrongful Convictions: Ensuring the Right to Communicate in Cook County
From media depictions of the criminal legal system, most people seem to understand that when you get arrested, you are allowed a phone call and that phone call can get you a lawyer that will advocate for you during police interrogations. Unfortunately, this is not always the reality – especially in Cook County – which has resulted in Chicago being dubbed the “False Confession Capital of the United States.”
One of the best ways to avoid these false confessions is to ensure people’s right to communicate is protected by providing legal representation at the time of arrest. The Cook County Public Defender has seven attorneys who are available 24/7 to do just that. The Public Defender’s Arrest Hotline operates 365 days per year, 24 hours per day, to take calls and provide vital legal representation for people being detained by law enforcement anywhere in Cook County.
Chicago has a long history of police torture and false confessions. The National Registry of Exonerations, which tracks exoneration cases based on publicly-available information, has recorded 3,150 exonerations across the United States since 1989. Of those, Illinois boasts the highest proportion, with 511 exonerations, while 107 of these involved a false confession (which is double that of the next highest state, New York). In fact, Illinois accounts for approximately 29% of false confession exonerations in the whole country. As recently as July 14 of this year, the convictions of two brothers were thrown out by a Cook County judge because the Chicago Police Department (CPD) officer who arrested them was “a lying, scheming person” known for his misconduct.
False confessions occur when people are faced with intimidating police presence and incredible pressure to confess to the alleged crime, even when they’re innocent. Arrested people are often lied to and told that a confession would allow them to walk free right then and there, leading them to choose the easy fix, unaware of the long-term consequences. In December of 2020, Chicago Appleseed found at least 6,282 instances of people being held by the Chicago Police Department for longer than 10 hours, for a maximum of two days, between the time of being arrested and official booking at a police station; 3,103 individuals were held in police custody longer than 48 hours – for a maximum of four days – from initial arrest to release. Given that thousands of people have been found to be detained without charge for longer than 48 hours, it’s unsurprising that these persons would be even more vulnerable to false promises. Further, due to the lack of representation in police custody and potentially coercive behavior by police officers, many individuals may not fully understand or have the ability to safely invoke their right under Fifth or Sixth Amendments.
Access to an attorney at this stage in the process is one of the simplest ways to encourage accountability for police officers and discourage these “easy fixes,” which can lead to thousands of dollars and years of lives saved on the front end.
For over 20 years, First Defense Legal Aid (FDLA) in Chicago offered a 24/7 hotline that would send volunteer lawyers to police stations to represent those who were recently arrested and in police custody. When the Public Defender began to transition to being the sole provider of stationhouse-based representation in March 2019, Chicago Appleseed Center for Fair Courts was asked to evaluate the stationhouse-based unit’s quality and capacity for representation at this stage. While we found that the Arrest Hotline team was more than qualified to take on a high volume of arrestee representation, Chicago Appleseed discovered that only 1.3% of arrestees in Cook County were taking advantage of the free representation. Thus, despite the potential of stationhouse representation in preventing and reducing the number of false confessions, the Public Defender’s services have been underutilized.
In response to that finding, Chicago Appleseed advocated for new legislation to end “Incommunicado Detention.” Up until January 2022, Illinois law provided that arrestees were only entitled to a “reasonable” number of calls within a “reasonable” amount of time. The statute defined “reasonable” as “within an hour.” However, the combination of the discretionary language and the lack of enforcement of the statute has allowed police officers to restrict recent arrestees’ right to a phone call for unjustified durations of time. For instance, individuals have reported that they were denied a phone call for 12 hours after their arrest, while others have reported that they were completely denied a phone call while in police custody. Thus, the lack of complicity with Illinois’ statute has prohibited people from both informing loved ones of their whereabouts and from obtaining legal representation to which they are entitled under law.
Illinois was not alone in its failure to protect the right to communicate. In a nationwide state survey last summer, Chicago Appleseed discovered that 23 states only offer moderate protections for the right to communicate in that the right is vaguely defined or accepted by common practice. Eleven states fail to provide arrested persons with the right to a phone call, formally or informally. With the passage of the Illinois Safety, Accountability, Fairness, and Equity-Today (SAFE-T) Act, Illinois now joins the other 15 states that strongly protect the right to communicate in detention.
The SAFE-T Act was passed in February 2021 and became effective in January 2022. The new legislation provides two key elements to improve people’s access to their rights to communicate:
- First, it includes a “3-in-3” provision that mandates that arrestees be given three phone calls at no cost to them within the first three hours of arrest.
- Second, it requires every police stationhouse to display a sign, in bold front and in a conspicuous location, that notifies people of (1) their right to make three calls within three hours after being taken into police custody, at no charge, and (2) the telephone number to call to obtain legal representation (such as the PRSU).
The SAFE-T Act was a huge victory for Illinois, but yet, now seven months later, its impact on the right to communicate has shown to be limited and minimal. The proportion of arrestees taking advantage of the Arrest Hotline has remained around 1%.
The Arrest Hotline is unique because it is a separate unit within the larger Public Defender’s office. Having a separate unit dedicated to serving those held at police stations allows for more efficient and specialized legal representation. The Public Defender’s office provides the Arrest Hotline with resources that are unique to stationhouse representation that assist in providing excellent advocacy, such as access to county cars and ride share accounts that allow attorneys to arrive at stationhouses quickly. Additionally, attorneys in the stationhouse-based unit receive specialized training that is tailored toward stationhouse representation before joining the unit, and the new attorneys work alongside more experienced attorneys to learn the ropes to ensure their clients receive competent and diligent services.
While legislative changes are often necessary and serve as significant milestones towards achieving a greater goal, attention must also be given towards achieving a community and cultural reform within and around the criminal legal system, specifically concerning the attitudes towards public defenders. The SAFE-T Act will likely remain underutilized until there is a shift in attitude toward the importance of public defense. Trends of distrust and negative attitudes towards public defenders may be interfering with achieving access to justice within the criminal legal system. One possible solution to building rapport between the community and public defenders is through citizen engagement. Having public defenders engage directly with the community will increase transparency, enhance accountability and demonstrate competency as attorneys, all of which builds legitimacy and trust in the Public Defender’s Office.
At Chicago Appleseed, we plan to further explore and uncover the causes for the underutilization of the Arrest Hotline’s services. First, we hope to investigate whether police departments are complying with the SAFE-T Act’s signage and phone access requirements. We also plan to reach out to individuals within the community to determine the best methods for ensuring that people are aware and informed of the new legislation, along with their other legal rights within the legal system. Based on what we find, we hope to implement changes that will promote Public Defender’s stationhouse-based services and increase its usage, along with increasing the public’s trust in public defenders.
For more information about or to utilize the Cook County Public Defender’s Arrest Hotline, call (844) 817-4448 or go to CookCountyPublicDefender.org/help.
Lia Raves is a rising third-year law student at Loyola University Chicago School of Law and a Public Interest Law Initiative (PILI) Intern and Lauren May is a rising second-year student at New York University School of Law and Intern with Chicago Appleseed Center for Fair Courts.