US: Fair Trials calls for District of Columbia to legislate on right to counsel

Article by Fair Trials

Fair Trials has testified in support of the DC Police Reform Commission’s recommendation to guarantee adults and juveniles the right to legal counsel upon their arrest, prior to any questioning by the police, and to allow counsel access to police stations 24 hours a day to communicate with their clients and to sit in on interviews between police and individuals suspected of a crime.

Fair Trials has drafted model legislation that would give adults and juveniles the right to counsel within two hours after their arrival at a police precinct and guarantee attorneys 24 hour entry into the precincts to carry out consultation in a confidential setting and provide legal assistance during interrogations and officer led questioning. Our drafted legislation also includes two other measures to ensure comprehensive implementation and enforcement of the right to counsel, such as: prohibiting police officers from beginning interrogation or questioning until counsel has been consulted, if such person wishes to invoke their right to consult counsel; and ensuring incriminating statements elicited in violation of such person s right to counsel may not be used against them in criminal proceedings. We believe the Commission’s recommendations, along with our proposed codification of their recommendations, will ensure that the current privilege to be guided by an attorney upon arrest becomes a right for all and will provide oversight and protection against harmful policing practices in the District.

Across the country other jurisdictions have adopted these protections for kids, such as California which began implementation of a similar bill in January, SB 203 and Maryland s Juvenile Interrogation Protection Act, which is progressing through both chambers of the Maryland Legislature. The state of Illinois passed right to counsel legislation for children and adults in 2017 and recently amended it to confront the issue of Chicago police failing to provide arrested people with legally-mandated phone calls to counsel. Further advocacy for the right to counsel in police stations has begun in the states of Washington and New York and other states are becoming interested in granting these safeguards to their residents.

Fair Trials plans to conduct implementation studies of these laws, provide technical support for implementation and legislative drafting, create data collection programs to determine their quantitative impact, and coordinate a national coalition of right to counsel practitioners and stakeholders. Our work will enable the District to learn from the experiences of other jurisdictions and provide the District with tools to successfully implement community oversight, via the right to counsel, over police in our city.

The District possesses the infrastructure and is especially poised to become a leader on this issue nationally. There exists a wealth of indigent defense practitioners via The Public Defender Service for the District of Columbia, which is nationally renowned as a model for indigent defense, numerous highly ranked law schools with indigent defense clinics, and a robust Criminal Justice Act, or panel attorney program. The District is also recognized as one of the most policed cities in the nation and must rise to the occasion of also being recognized as a city that provides its citizens with the most protection against abuse.

Lawyers in police custody will influence systematic change to a number of criminal justice outcomes by:

  • challenging unlawful and abusive arrests, including those that do not lead to criminal charges, discouraging police from unnecessary street contact;
  • reducing prosecutions and jail admissions by encouraging police and prosecutors to drop and divert more cases;
  • identifying the vulnerabilities of arrested people and promoting diversion and treatment opportunities;
  • identifying incidence and patterns of police misconduct and ill treatment of arrested people;
  • improving communication channels and trust between police, the community (including victims and witnesses), defenders and prosecutors;
  • capacitating defense lawyers to prepare more comprehensively for arraignment, pre-trial detention and plea negotiations reducing wait times and administrative hurdles; and
  • improving access to medical care and other essential needs of detained people.

The right to counsel in police stations has the potential to disrupt the machinery of criminalization, mass incarceration, and police control. The police in the District must no longer be permitted to operate in the shadows, and implementing the right to counsel for all adults and children in police custody is a key element of their reform.

Read our briefing Station House Counsel, for more on how involving defense lawyers earlier can not only provide oversight over arrest, custody and detention but can have a transformative effect on the entire criminal legal system in the US.

Fair Trials’ Legal and Policy Officer, Chanel Cornett testified to the Committee On The Judiciary And Public Safety Joint Public Hearing On The Recommendations Of The D.C. Police Reform Commission on May 20.

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