This month, Cook County prosecutors in Chicago dropped charges against 15 men, based on police misconduct, and two others claiming innocence won a new trial based on false confessions.
Even for Chicago, this was extraordinary. The Chicago Tribune called it the largest mass exoneration in Cook County history.
Cook County Prosecutor Kimberly Foxx did no more than her duty.
When I was an indigent appellate defender in the northern part of Illinois in the 1980s, prosecutors routinely confessed error and/or dropped charges to correct a miscarriage of justice.
The role of the prosecutor is not to convict, but to seek justice. Justice is based on fairness, which means ensuring that the rights of all are protected throughout the process. Coerced confessions have no role in a just system—prosecutors fulfill their ethical duty in correcting such injustice.
According to the National Registry of Exonerations, Illinois has a false confession rate more than three times higher than the national average—and nearly 84 percent of the false confession cases in Illinois come from Cook County. Millions are spent in settlements in false confession cases, and the lives of innocent people and their families are forever altered, if not ruined.
And, of course, when the wrong person is convicted, then the actual offender is still at large, so the public is left at risk.
There is a simple answer to prevent false confessions, one urged by the U.S. Supreme Court more than 50 years ago in Miranda: Just give everyone a lawyer throughout interrogation.
Shockingly, an examination by the Police Accountability Task Force of arrests in Chicago in 2014 and 2015 found that less than one percent of all arrestees–adult and juvenile–had the assistance of a lawyer at any point during interrogation.
So police in Chicago are interrogating children—and adults—without the protection of a lawyer in nearly every case.
There have been movements to expand access to counsel. Last Spring, the Cook County Chief Judge issued an order appointing the public defender to be available to represent children and adults during police interrogation, so that persons arrested in Cook County would have access to a lawyer without charge.
Also, the Chicago Police Department agreed to comply with an Illinois statute that requires all police to post a sign with information on the right to legal assistance during interrogation.
In addition, troubled by the lack of legal assistance for children during interrogation, the Illinois Legislature unanimously approved a reform requiring lawyers throughout interrogation for children under the age of 15 in serious cases, and required the videotaping of all felony interrogations of all children.
The bill was watered down from the original proposal to provide lawyers to all children under age 18. Opposition to the original proposal came from law enforcement.
The first argument from law enforcement was that there would not be enough lawyers—that it would be too hard to find a lawyer during off hours. If this is an acceptable argument, we should be honest and revise the Miranda warning to tell arrestees that they have a right to a lawyer but that one will only be provided to them from 9-5 on Monday through Friday.
The second argument is that it is too expensive to provide lawyers 24/7.
Having a public defender on call 24/7 is certainly a cost to the public, but so is the cost of paying police, sheriffs, county jail staff, and county detention staff 24/7. So if we agree to pay the cost of all these law enforcement staff 24/7, then why can’t we have also pay for a lawyer to be on call 24/7?
After all, if a person is coerced into a confession, then as a society we pay substantial costs in prosecution, decades of incarceration and eventually in false confession settlements. Surely the meager cost of an on-call lawyer is far less than the extraordinary incarceration and exoneration costs to taxpayers.
Another argument is that police will never solve cases if lawyers are present because suspects will not talk. But in England, where the law has required lawyers for decades, research clarifies this is not the case—arrestees are just as likely to give statements with lawyers present.
An arrestee with an alibi is just as likely to give the alibi with a lawyer present. The difference is that the statement is more likely to be reliable.
Further, as the report by the Police Accountability Task Force documents, the practice of excluding lawyers and coercing confessions has a chilling impact on community relations. Police therefore find it harder to get community cooperation in solving crimes.
Community cooperation, based on community trust that police will treat everyone fairly, is much more critical in solving crimes than individual statements, especially those made without legal protection. Finally, confessions alone are not the only way to prove a connection to an offense. Police have a wide variety of tools.
Lawyers are essential. Police agree—and police contracts contain numerous protections including access to a lawyer and limits on custodial interrogation to protect the rights of police during questioning and withstand complaints about their conduct.
The sad litany of exonerations based on false confessions illustrates that all arrestees need the protection of a lawyer. It is time for Illinois to follow the recommendations of the Police Accountability Task Force and ensure that all persons have a lawyer during interrogation, especially children.
Editor’s Note: This story has been updated to reflect corrections.
Elizabeth Clarke is founder and president of the Juvenile Justice Initiative. She welcomes comments from readers.