It was the weekend of May 30, 2020, a critical point in the anger, promise, and unrest following the police murder of George Floyd in Minneapolis. Yet, despite the extraordinary conditions, something familiar took place: Chicago police blocked attorneys from seeing their clients and prevented detainees from making phone calls as state law requires. CPD had been violating detainees’ rights like this for decades.
Across the city, demonstrators—some of whom police brutalized—were hidden from friends, families, and comrades. When their lawyers called police stations, officers misdirected the calls, hung up, or, as one has to presume from the endless busy signals, just took the phones off the hook. At times, attorneys responding to arrests were physically barred from even entering police stations. On at least one occasion, it took the interventions of elected officials to eventually get attorneys through the door. All the while, police had unfettered access to the people they detained.
These nights, and others like them, set the stage for change. That June, a diverse coalition of community and legal groups filed a lawsuit that detailed serial violations of state law rights to counsel and phone calls. I am one of the attorneys for the plaintiffs in that lawsuit, #Letusbreathe Collective, et al. v. City of Chicago. Two weeks ago, the lawsuit was settled with the establishment of a historic consent decree that has the promise to end incommunicado detention in Chicago.
Arrestees in Illinois have long had statutory rights to consult with attorneys in private and to make phone calls from the police station, but in practice these rights have been aspirational at the point of arrest. The new consent decree will help: it ensures that people in custody are able to call family and attorneys within three hours of being taken into custody, among a host of other changes to police practices, including installing phones in interrogation rooms and posting information about accessing free attorneys in areas where detainees are held. The consent decree also provides for data sharing and police station inspections to ensure compliance, and, best of all, is enforceable in court if the city doesn’t uphold its obligations.
Since 2017, I have worked at First Defense Legal Aid (FDLA), an organization founded in 1995 as a collaboration between grassroots organizers and concerned attorneys in the wake of revelations about police torture by Jon Burge and other CPD officers. FDLA’s goal was simple: end incommunicado detention, and stop false and coerced confessions in the city, by educating Chicagoans about their constitutional rights and making free legal counsel available 24/7/365 to individuals in custody anywhere in CPD’s sprawling network of police stations, detective areas, and investigative facilities.
Although FDLA transferred responsibility for free, 24-hour station house representation to the Law Office of the Cook County Public Defender in 2019, my experiences trying to access clients prior to the changeover have stuck with me. Traveling to police stations at all hours of day and night—most often after a call to FDLA’s hotline (1-800-LAW-REP4) from an arrestee’s concerned family member—I was and remain struck by how consistently, and nonchalantly, CPD violated people’s rights. Chicago police regularly hid clients or attempted to interfere with representation through a potent combination of cruelty, pettiness, and impunity. On any given night, officers could be found denying that someone was present at a given station, refusing to let attorneys see them, or otherwise obstructing efforts, all while their colleagues laughed and carried on in the background.
Detainees and would-be clients reported that police discouraged them from signing the CPD form that initiates a legal consultation, whether by saying that it “makes you look guilty” to want an attorney, that detainees would go home faster if they didn’t see a lawyer, or that because the representation was free, it wasn’t worth having. Further, access to phones, when granted, was and has remained a mess. For example, a Spring 2020 survey of individuals in bond court by the Public Defender’s Office indicated nearly a quarter of people there were never offered a phone call while at the police station, and that the average wait time among those who did get access was more than four hours. None of this is what the law requires.
It is deceptively easy to look at an arrest as an isolated point on the more or less linear—if protracted—progression of a criminal prosecution. Someone is accused of a crime, arrested, and then prosecuted, a process that can seem defined by the critical point of a verdict (whatever it may be), a dismissal, or a plea bargain.
But for the people held incommunicado, the arrest itself and alone has catastrophic reverberations. When you can’t call your mother so she can give your employer a heads-up that you’ll miss your shift, you get fired. When you can’t contact your partner to pick up your kids from school, your family could face scrutiny from child protection agencies or reproach from teachers and administrators. You wonder if your car is getting towed or if your family is beside itself with worry. You wonder if you’ll be framed. Or killed. When you can’t speak with an attorney, perhaps you, like so many others, give a false confession during the 48-72 hours police may hold you without charges, are wrongfully convicted, and spend decades in prison.
The damage of incommunicado detention is not limited to the detainee. Outside of the station, family members, friends, and loved ones are faced with the agonizing proposition that someone close to them has disappeared. Maybe you know your loved one has been arrested; maybe you don’t. In any case, incommunicado detention violates the bonds of community that enable healthy and secure societies.
The efforts of the plaintiff organizations in #Letusbreathe v. Chicago have created a seismic shift, to a world where there is a meaningful route to ending incommunicado detention in this city. While the legacy of the 2020 uprising remains in careful balance, one change is now set in stone—people arrested in Chicago are going to get access to their lawyers, and to phone calls, and if they don’t, the city will be held accountable.
Daniel Massoglia is the Director of the Civil Rights Clinic at First Defense Legal Aid. He is one of a team of attorneys who represented the plaintiffs in #Letusbreathe Collective, et al. v. City of Chicago, which culminated in a consent decree transforming how people in Chicago police custody can access phone calls and legal counsel.
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