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The Argument for a Constitutional Right to Representation at Bail Hearings in All Criminal Cases in State Court

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THE ARGUMENT FOR A CONSTITUTIONAL RIGHT TO REPRESENTATION AT BAIL HEARINGS IN ALL CRIMINAL CASES IN STATE COURT The right to legal representation is generally accepted in the United States as a Constitutional right guaranteed to everyone. The Supreme Court promised the right to counsel to “ any person haled into court” in the infamous Gideon v Wainwright case. This case was instrumental in advancing the rights of indigent defendants through its proclamation that the Sixth Amendment right to counsel in criminal proceedings should also apply to State Courts. However, Gideon’s promise to counsel has yet to completely guarantee equal access to justice when first appearing at judicial proceedings in state courts. Although defendants who can afford lawyers will usually hire one from the onset of a criminal proceeding, the right to counsel for indigent defendants (i.e. a state-provided attorney) is interpreted as attaching at varying stages of a prosecution in different states. Only eight states guarantee indigent defendants the right to legal counsel at the initial bail hearing. Representation at the initial bail hearing is critical as a lawyer’s intervention is crucial for obtaining a defendant’s release and for protecting a defendant’s due process right (guaranteed in the Fourteenth amendment) against an unreasonable denial of liberty during pretrial detention. The lack of counsel in pretrial proceedings can result in numerous consequences; some include a high number of pleas being accepted as defendants are desperate to be released from custody, the loss of liberty being used as a punitive system even before a trial verdict of guilt, a defendants’ diminished capacity to work and provide for himself/herself and his/her family, and a diminished capacity to prepare adequately for trial. The current bail system breeds economic discrimination; as it stands it provides those who can afford monetary bail the least, indigent defendants, either no representation or poor representation at the initial stages where bail is set. It is imperative that the Supreme Court rule on this matter and explicitly mandate that the States appoint legal counsel for indigent defendants at the initial appearance in order to ensure that the rights to liberty and counsel are protected for all, regardless of economic status.

A. The stages of criminal proceedings after arrest

In order to understand the significance of legal counsel at pretrial proceedings, it is important to understand the different stages of a criminal proceeding. An arrest is the first step in beginning criminal proceedings against a defendant. A suspect is then transported to a police station for booking. A prosecutor is then brought in to review the facts and police records and to determine if there is sufficient evidence to support probable cause and with which to proceed on. Although it would seem that prosecutor review at this stage would serve as an adequate filter to bad arrests or charges, a prosecutor usually has only a few days to file a complaint and thus these hurried decisions are not without error and commonly result in charges being modified, dropped, or added. Typically, a defendant will be entitled to appear before a magistrate or judge for a bail hearing within a few hours to a few days if the arrest occurs on a weekend day. At the initial appearance the judge does not listen to the facts of the case, rather the judge informs the defendant of the charge, the right to legal counsel (which may or may not be at this stage), and sets a bail. If a defendant is not entitled to counsel at this stage, he/she will be able to speak on his/her own behalf to advocate for a reasonable bond. If a defendant is released on his/her own recognizance then he/she is released from custody pending trial. However, if a defendant is not given a bond or cannot afford bond then he/she must remain in custody until trial. Depending on the nature of the charges and the jurisdiction, the time from an initial appearance until trial can range from a few weeks to years. A bail hearing will usually be followed by a preliminary hearing, an arraignment, a grand jury indictment (in felony cases), status hearings, discovery proceedings, and other potential proceedings before a case ever gets to trial. Even in cases where a defendant is being charged with a crime in which there is little/no evidence of probable cause, this determination will not be made until days or weeks after the initial bail hearing. Thus, even when a person is not guilty or will ultimately have charges against them dismissed, the defendant will have to wait days or weeks in order for his/her right to counsel to attach and have legal counsel advocate for his/her release. Therefore, the bail hearing is a critical stage in criminal proceedings because a defendant’s liberty for a significant period of time is at stake.

B. Bail, as regulated by statute and case law, and the evolution to monetary bail for pretrial detention

Although statutory language and case law favor pretrial release, in practice the use of monetary bail is prevalent and results in keeping defendants (particularly indigent defendants) incarcerated prior to trial. The treatment of bail in evolving Anglo-American law has been as a device that is supposed to enable defendants to remain out of jail until the disposition of their criminal proceedings. The punitive nature of keeping someone incarcerated while they await trial goes against the belief that a defendant is innocent until proven guilty. “Without this conditional privilege, even those wrongly accused are punished by a period of imprisonment while awaiting trial and are handicapped in consulting counsel, searching for evidence and witnesses, and preparing a defense”. Congress made clear its desire to try and avoid the possible injustices that could result from incarceration of all pretrial defendants in its proclamation that “a person arrested for an offense not punishable by death shall be admitted to bail”. Although there always remains a risk that the accused will not appear for trial, this is a calculated risk that is supposed to be taken en lieu of incarcerating all defendants and rebutting the presumption of innocence that is so fundamental to our judiciary . Congress tried to compensate for that risk by enabling judges to set bail at an amount reasonable enough to ensure the presence of the defendant at trial. However, the discretion allowed judicial officers in determining what a reasonable amount of bail is without the use of guidelines has created a sub rosa use of monetary bond to detain indigent pretrial defendants.

A person’s right to liberty prior to adjudication of guilt, unless to deny it serves a compelling government interest, is solidified in case history and statutory law. Statutory language indicates a presumption in favor of pretrial release in its language in the Bond Reform Act of 1984 that “a person should be released on personal recognizance unless such release will not reasonably assure the appearance of the defendant at trial or will endanger the safety of the community or any person”. Case law regarding bail throughout American legal history has also supported this presumption by asserting that only in rare cases should bail be denied. In cases where a personal recognizance bond is not sufficient enough to provide reasonable assurances, a judicial officer may impose additional conditions of release, including monetary bail. However, Congress goes on to say that a judicial officer must choose the least restrictive condition or combination of conditions possible that result in a reasonable assurance. The deferential treatment that should be afforded defendants, but is regularly denied, in bail proceedings is furthered by case law that states that in cases where there is doubt as to whether a defendant should be released the matter should be resolved in favor of the defendant. The reasoning behind this is that bail is so fundamental to our system of law and its foundation on a presumption of innocence that a defendant’s right to liberty should be the controlling interest if sufficient doubt exists about flight risk or threat to the community.

The Bond Reform Act lists many possible conditions of release, and allows for courts to impose any relevant condition they deem necessary, including but not limited to drug testing, house arrest, submission to warrantless searches for drugs and alcohol, and curfews. Although monetary bond is acceptable as a condition of release when personal recognizance is not sufficient assurance, the Bail Reform Act does state that a “judicial officer may not impose a financial condition that results in the pretrial detention of the person”. Furthermore, both statutory and case law has stated that bail set at a higher figure than amount reasonably calculated to fulfill purpose of assuring that accused will stand trial and submit to sentence if found guilty is excessive under Eighth Amendment. Although Congress allows for various other conditions to be placed on a defendant for release, monetary bond has become the standard condition imposed on defendants who are awaiting trial. Despite the statutory preclusion of financial conditions that result in pretrial condition, the use of monetary bonds as the predominant pretrial condition of release has resulted in just that- an imposition of financial conditions on indigent defendants that leads to increased pretrial detention rates.

While a court can induce a defendant to go to great lengths to raise bail without violating 3142(c), courts are prohibited from the sub rosa use of monetary bond to detain defendants whom the courts deem to be generally dangerous. The use of monetary bonds to detain pretrial defendants deemed dangerous solely on the basis of the allegations against them is particularly dangerous in light of the fact that a prosecutor makes a hurried determination of probable cause and that judges do not even hear evidence pertaining to the facts of a case other than the charges at bail hearings. Therefore, at a bail hearing there has not yet been a sufficient determination of probable cause or weighing of the evidence to warrant incarceration except in cases where there are other factors that point to flight risk or threat to the community.

Additionally, the Constitution requires that the government prove each and every element of a crime beyond a reasonable doubt before they can take away an individual’s liberty. However, this standard of proof does not apply in pretrial proceedings although a person’s liberty is still at stake. The burden is actually usually placed on the defendant to prove that he/she is not a flight risk or a threat to the community. Consequently, a defendant has an additional burden placed on him/her in an already adversarial proceeding commenced against him/her. This is exponentially more worrisome when the additional burden placed on a defendant in our current bail system is done without the help of a lawyer. Pretrial detention is determined by a lower standard of proof than a reasonable doubt, and as such it should not be a procedure that results in punishment. The punitive effects of the current bail system result in many disadvantages for indigent defendants who remain in pretrial custody. The strain of being incarcerated increases a defendant’s willingness to accept plea bargain and as such data reflects that pretrial custody makes it more likely that a defendant will be convicted. The data in this area also indicates that the conviction rate for detained defendants was almost 50% higher than for those who were released. This makes sense as released defendants can more diligently meet with attorneys to prepare their case, find witnesses, and avoid the pressures of speeding up a trial. The other positive that arises from allowing defendants to be free prior to trial is that the state is held to a beyond a reasonable doubt standard. This should be a goal of utmost importance in a democracy. Without ensuring equal rights for all, the judicial system risks abuse by allowing the State to charge defendants, proceed with cases, and encroach on an individual’s liberty on a much lower standard of proof. This is devastating to the notions our judiciary system was founded on. The importance of leveling the playing field for defendants when going against the State in criminal proceedings is only more persuasive in light of the fact that 90% of criminal cases will never go to trial. The importance of having counsel at pretrial hearings is significant as the vast majority of cases will be resolved within these earlier stages.

However, our current judicial system utilizes the bail system and pretrial detention very differently from the way statutory language and case law meant for it to be implemented. A study conducted in the 75 largest counties in the United States that studied the setting of bails in all felony cases from 1990-2004 indicated that in 2004 68% of all defendants charged with felonies were given a monetary bond and that only about 48% were able to post that bond so that 52% of defendants that received monetary bonds remained in pretrial custody. This is in stark contrast with case law and statutory language that seemed to indicate financial bond should only be utilized in cases where flight risk or threat to the community is explicit and no other conditions of release would ensure the defendant’s appearance in court and safety to the community. The fact that approximately 1 out of 5 defendants who were detained from 1990-2004 due to monetary bonds eventually were acquitted or had their charges dismissed show that the current use of the bail system is being used punitively against people who will not be found guilty. This 20% of defendants who remain detained prior to trial are being forced to remain in custody for crimes they will ultimately be found innocent of or have dropped. The presumption of innocence is contradicted when monetary bond is used to detain such high percentages of defendants charged with a crime. 21% of all defendants with no prior arrests and 41% of defendants who did have previous arrests but had never failed to appear in court were incarcerated due to monetary bond from 1990-2004 according to this study. This indicates that even when the factors the statutory language and case law discuss such as a defendants’ prior arrests and convictions and likelihood of appearing in court are indicative of a reasonable assurance that a defendant will show up at his/her next court date monetary bonds are still imposed.

The current trend toward monetary bond is indicative of the need for legal representation at such a critical stage in an adversarial prosecution against a person. This need is only heightened for indigent defendants who are not likely to be able to post the bonds assigned to them if not represented by effective counsel. Experienced attorneys are more likely than untrained defendants to know the potential ties to the community and indicators of stability a court wants to see in order to release a person on their own recognizance or set a reasonable bond. The trend toward monetary bond is indicated by the fact that 53% of all defendants charged with felonies were given monetary bond in 1990 compared to 68% in 2004. Additionally, out of all the defendants that remained incarcerated until the adjudication of their cases 5 out of 6 remained there due to a monetary bond that they could not afford. This is in stark contrast to 3142(c), which precludes the imposition of financial conditions that result in pretrial detention. Thus, it is a logical conclusion that in our current judicial system where monetary bond is the most prevalent condition of release an indigent defendant’s right to an attorney is critical for defending against a high chance of a monetary bond that the defendant cannot afford.

C. The Federal Constitutional Right to Representation The Sixth Amendment right to counsel was initially thought of as a negative right, that is the right to not have the presence of counsel in criminal proceedings prohibited. However, in the 1800’s there is a judicial shift toward this right to counsel being thought of as an affirmative right. In Webb v Baird the Indiana Supreme Court recognized the right to an attorney at public expense for an indigent person accused of crime, [as] grounded in "the principles of a civilized society," not in constitutional or statutory law. The right to counsel in federal criminal proceedings was confirmed in 1938 in Johnson v Zerbst. However, at this time this Sixth Amendment right was not seen as applicable to State proceedings. It was not until Powell v Alabama that the Court held that counsel was required in all State capitol proceedings. The right to counsel in state proceedings took a step backward ten years later in Betts v Brady when the court ruled that the right to counsel did not extend to state felony proceedings. It was not until 1963 in the monumental case of Gideon v Wainwright that the court ruled unanimously that an indigent person charged with a felony in State courts was entitled to counsel at the expense of the State. In re Gault, only four years later, expanded this right to apply to children who were being charged in juvenile delinquency proceedings. Finally, in Argensinger v Hamlin the court expanded this right to counsel to apply to all state cases where the loss of liberty was at stake, including misdemeanors. In making these decision the Court was cognizant of the fact that an attorney’s pretrial advocacy is often critical to ensuring a defendant’s fair criminal trial. In Powell v Alabama the court recognized that the most critical time of the proceedings is from arraignment until the beginning of trial when consultation, investigation, and preparation for trial are conducted. The court’s highlighting of the importance of legal counsel in pretrial proceedings demonstrates that the court recognizes the constitutional right to counsel attaches prior to trial. However, there has never been an explicit indication of what stage the right to counsel attaches at and this ambiguity has allowed for states to deny counsel at critical pretrial proceedings such as bail hearings and probable cause hearings. I. Powell V Alabama, The right to counsel before trial is established as a due process right

A Fourteenth amendment analysis of the Sixth Amendment right to counsel was first recognized to extend to proceedings prior to trial in Powell v Alabama. In this case nine African American men were accused of raping two white women in Alabama, and narrowly avoided being killed by a lynch mob. These nine defendants did not have counsel at their arraignment when they pled not guilty. However, an attorney from Tennessee came into court the day of their trial to offer his services if he was given time to prepare a defense and learn the local court procedures. However, the court denied the attorney’s request for additional time and mandated that the trial proceed immediately.

The Supreme Court reversed these convictions citing a violation of the right to counsel and focused on the State’s failure to allow the designated counsel adequate time to prepare a defense. The Powell court stated that the “designation of counsel… was either so indefinite or so close upon the trial as to amount to a denial of an effective and substantial aid”. The Court recognized that an attorney’s preparation for trial consists of investigation, research and preparation of a defense, and consultation with the client- all unfeasible if assignment of counsel is delayed until trial. Furthermore, the court concluded that a defendant should have a right to counsel “during perhaps the most critical period of the proceedings… the time of… arraignment until the beginning of…trial”. The Court’s due process analysis was focused on counsel’s role as an advocate. The Powell Court suggested that “the right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel”. This was the first time that the constitutional right to counsel was recognized to attach prior to trial. However, the question as to when exactly this right attaches would be left unanswered for many years after this landmark decision.

II. Gideon and Argensinger, a Fourteenth Amendment due process analysis of the Sixth Amendment right to counsel applied to States More than thirty years later the Supreme Court applied this same Fourteenth Amendment due process principles to an indigent defendant’s Sixth Amendment right to counsel when facing felony charges in state court. The Court further extended that rationale ten years later in Argensinger v Hamlin to include an indigent defendant’s right to counsel in misdemeanor cases involving jail sentences. The social climate of the United States at the time Gideon was decided was likely influential on the Court’s reasoning. The Gideon opinion advocated for an equitable system of justice and stated “any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him”. The Gideon court further highlighted the disproportionate resources the state was provided in a prosecution and the resources an indigent defendant had available and the Argensinger court recognized that these same inequalities existed in misdemeanor cases where a defendant was at risk of losing his/her liberty. The Argensinger court also went further by discussing a defendant’s right to counsel in pretrial negotiations. The court in this case acknowledged that lower courts use an assembly line style of justice to churn out plea deals. The court underlined the importance of legal counsel at the stage in which defendants decide to either plead guilty or go to trial. A defendant’s right to counsel in the period from arraignment to trial was established in Powell and confirmed in Argensinger to extend to the States as the Court recognized the importance of pretrial stages and the impact they had on the overall criminal proceedings.

The court decisions subsequent to Powell, Gideon, and Argensinger all tried to identify the precise initial stage at which the right to counsel attached and at which states were mandated to assign counsel. The courts eventually developed a two-prong critical stage analysis to determine whether a lawyer’s presence was necessary at earlier pretrial stages. The first prong analyzed when the right to counsel attached. The second prong required that a pretrial proceeding be “critical” for protecting an accused’s fair trial rights in order to mandate the assignment of counsel. However, this two-prong analysis failed to address whether a defendant’s initial appearance where bail was determined was considered a critical stage that required States to provide court-appointed counsel for indigent defendants.

Although the Court’s decisions in Gideon and subsequent cases seemed to indicate progression toward indigent defendants being provided equal access to counsel, the Courts’ decision in Gerstein v Pugh would shift that momentum. In 1975 in Gerstein v Pugh the Supreme Court decided that a lawyer’s presence was not constitutionally mandated at a probable cause determination. The Court relied on the Fourth Amendment’s standard of reasonableness in deciding that an accused is not entitled to counsel to challenge a judicial officer’s probable cause finding. Essentially, the Gerstein court found that a probable cause hearing was not a critical stage that required an indigent defendant to be appointed counsel.

The court’s reasoning was that a probable cause hearing only addresses the issue of pretrial custody, not any issues that will also arise later in trial, and therefore did not meet the critical stage requirement. Although the Court recognized that this could impede on a defendant’s trial rights while incarcerated and without counsel, the Court presumed that this would be for a minimal amount of time. However, the reality is that defendants charged with crimes who do not initially receive counsel remain without counsel for long periods of time.

The court’s scattered decisions post-Gideon and Gerstein resulted in States establishing very varied patterns for the initial stages at which indigent defendants are assigned counsel. Recently, the Supreme Court made progress toward an explicit declaration that Gideon’s promise includes the right to counsel once prosecution begins and a person’s liberty is determined at the initial bail hearing. The Court held that a defendant’s right to counsel attaches at the first appearance hearing and that States cannot unreasonably delay assigning a lawyer. The recent holding came in Rothgery v Gillespie County, a case in which a man named Walter Rothgery spent weeks in jail due to an error in computer records and the fact that he was not assigned counsel until 6 months after his initial bail hearing. Mr. Rothgery lost his job and his home as a result of his erroneous incarceration. The Courts’ oral arguments in this case indicate that the Supreme Court may be ready to rule on this fundamental post-Gideon gap- the refusal of States to guarantee a lawyer to incarcerated indigent defendants at the initial bail hearing and for long periods of time after. This has become a critical issue in the rights of indigent defendants in the criminal system. The denial of counsel is a significant barrier to ensuring equal access to justice and only works to further encourage a criminal system that stacks the odds against indigent defendants in adversarial prosecutions.

The Federal Rules of Criminal Procedure already guarantee counsel at an indigent person’s bail hearing. However, different States vary on whether or not they provide counsel at this stage. Rothgery v Gillespie provided an opportunity for the Supreme Court to consider the question of right to counsel at initial bail hearings. Mr. Rothgery was a former West Point Cadet who had never been convicted of a crime. However, the Texas computerized criminal background check system erroneously listed him as having been previously convicted of a felony drug charge. In actuality Mr. Rothgery had been arrested for a felony drug charge in 1996, but had the charges against him dismissed when he completed a court diversion program. Mr. Rothgery’s was subsequently charged with being an ex-felon in possession of a loaded gun. Like the majority of the states, Texas did not assign defendants attorneys at their initial bail hearing. Mr. Rothgery did request counsel at his initial appearance, however, the judge denied the request and informed Mr. Rothgery he would remain in jail until counsel was assigned. The judge also ordered a $5,000 bail. Eventually, Mr. Rothgery was released from custody when his wife posted his bail. In the six months after his arrest Mr. Rothgery continued to make oral and written requests for a lawyer and was routinely denied. Finally, Mr. Rothgery was re-arrested six months later and had his bail increased to $15,000. Finally, a judge granted Mr. Rothgery’s request for an attorney, although it took another three weeks for the lawyer’s appointment and appearance. Mr. Rothgery had to remain in custody for these three weeks.

Upon being appointed Mr. Rothgery’s court-appointed lawyer took prompt action. First, he was able to reduce Mr. Rothgery’s bond so that he could return home. Second, he was able to confirm that Mr. Rothgery had no prior convictions and was successful in having the prosecutor dismiss the charges, albeit nine months after the initial arrest. Mr. Rothgery pursued justice through a civil action by suing the county. Although Mr. Rothgery did not sue on the grounds that he had a constitutional right to counsel at his initial bail hearing, the majority of the Supreme Court justices indicated an interest in deciding the broad issue of whether an indigent defendant’s right to counsel includes immediate representation, particularly in the case of an incarcerated defendant. Mr. Rothgery’s claim was a narrower issue of his constitutional right to be assigned counsel at his initial hearing. The Supreme Court ultimately did not decided on the broader issue and ruled 8-1 that Mr. Rothgery should have been assigned counsel at the commencement of an adversarial criminal prosecution against him. The court stated that once a defendant is informed of a charge against him/her the right to counsel attaches even if a prosecutor is not yet actively involved in the prosecution and that a defendant should know the identity of their assigned counsel within a reasonable time after the bail hearing. The Court did not state what is considered to be a “reasonable” time. Texas was considered to be an anomaly among 43 other states that assign counsel before, at, or following the initial bail hearing. In defining the moment when charges are read to a defendant as the beginning of a prosecution the Rothgery court ended the ambiguity about when the right to counsel attaches and what exact event marks the beginning of a criminal prosecution. However, it did not resolve the questions regarding when appointment and presence of counsel is required. The Rothgery court cautioned that the mere attachment of the right to counsel does not, standing alone, require appointment of counsel unless post-attachment the defendant is involved in a critical stage of the criminal litigation process. Therefore, States are still allowed to delay the appointment of counsel for a “reasonable time” after the initial appearance.

Although the Rothgery ruling did not explicitly rule on the defendant’s right to representation at a bail hearing, the court took the “critical stage” analysis of prior Courts further and made clear that legal counsel is mandated at any stage that involves important rights of the defendant or involves an adversarial confrontation with the State. The ruling could indicate the Supreme Court’s interest in addressing this issue in the future. The many potential consequences to indigent defendants that remain incarcerated without counsel were highlighted in Mr. Rothgery’s case. Mr. Rothgery would have likely been able to receive a lower bond if he had an attorney and would not have had to remain incarcerated for the three weeks his bond was set at $15,000. Additionally, an attorney could have quickly made the determination that he was being improperly charged and had the charges dropped quickly before Mr. Rothgery’s life was so negatively affected. Mr. Rothgery’s case did not even involve another potential downfall to not having counsel at initial proceedings that so many other indigent defendants contend with- the negotiation and acceptance of a plea deal in order to dispose of a case swiftly and minimize incarceration. Mr. Rothgery was fortunate in that he was able to post his initial bail and return home for the first 6 months after his arrest. However, had he not been as fortunate there would have been a chance that having been incarcerated for 6 months before ever going to trial he would have accepted a plea bargain deal, particularly one that offered him no jail time or time served, in order to get out of jail right away and be done with the case. This shows the particular incentives that indigent defendants have to accept guilty pleas in cases where they are not guilty or would not likely be proven to be guilty. This is particularly worrisome in cases where indigent defendants plead guilty to felonies without understanding the far-reaching repercussions that pleading guilty to a felony can have. These risks are only heightened in situations where defendants do not have attorneys to advise them. The pressure to accept a plea bargain increases as a defendant remains in pretrial custody for longer periods. It is well known that custody drives plea bargains and is one more way in which indigent defendants are disadvantaged in our current system.

D. The consequences of not assigning counsel to indigent defendants at initial bail hearings

Currently, there are only eight states plus the District of Columbia that mandate a public defender at the bail hearing. Eighteen states refuse to provide counsel at this initial hearing and twenty four states deny counsel at the bail hearing in all but a few of their counties. The one commonality that 7 out of the 8 states plus D.C. have in common is that they have a statewide public defender officer. This may be a reason that they find it easier to enact uniform policies throughout their jurisdiction. Despite the fact that Gideon seemed to promise equal access to justice for indigent defendants by proclaiming lawyers to be “necessities, not luxuries”, the Courts have allowed for a fundamental gap to exist for indigent defendants in pretrial proceedings. In states and counties where defendants are not entitled to legal counsel bail hearings are perfunctory. Many times defendants will not even be brought into the courtroom as they are screened in through video jail broadcasts. However, even when a defendant is not aided by counsel many jurisdictions will still appoint a prosecutor to be present and recommend bail, which serves to disproportionately advantage the prosecution. Low-income defendants may choose to remain silent or risk making inculpatory statements as they try to plead their innocence without the advantage of knowledge of the law. An indigent defendant who does not have the benefit of an attorney typically receives a bail that he/she cannot afford as anything he/she may say in his/her defense is not verified or attested to by an attorney.

The Baltimore City Lawyers at Bail Project did a study among 4,000 lower-income defendants accused of nonviolent offenses and found that a defendant with representation was two and one half times more likely to be released on recognizance than an unrepresented defendant. Additionally, a represented defendant was two and one half times as likely to have his/her bail reduced to an affordable amount. The study found that delaying representation until after the pretrial release hearing was the single most important reason for the lengthy pretrial detention of people charged with nonviolent offenses. Furthermore, in this Baltimore study it was found that more than two out of three Baltimore District Court cases were ultimately dismissed or placed on the inactive calendar. This serves to highlight the point that many indigent defendants will spend long periods of time in jail awaiting trial on charges that will never occur. This only adds to the vulnerability that indigent defendants feel upon entering an adversarial system without an advocate to advise them of their rights.

Another significant con to not providing indigent defendants with representation at bail determinations is the increased jail population that occurs as more indigent defendants not assigned counsel remain in pretrial detention. The Baltimore Study is an important study in this area of the law as it is the first of its kind to measure quantitatively the substantial effects of providing counsel at initial pretrial determination hearings using a randomized experiment model. The Baltimore study led to the creation of the Baltimore City Lawyers at Bail Project (LAB). Nine months after its creation, the Baltimore Centralized Booking population had been reduced to almost half of its usual amount of pretrial detainees. The overcrowding effects of holding nonviolent offenders in county jails to await their trials is a plague a lot of urban cities deal with. Currently the Cook County courthouse, the highest-volume courthouse in the country, has 12,236 defendants in custody awaiting adjudication of their cases. The irony in setting high bails that result in jail overcrowding is that when overcrowding gets severe states will mandate emergency orders that require the release of a certain amount of nonviolent offenders. Therefore, the overcrowding that results from increased populations of pretrial detainees eventually forces counties and/states to enact emergency measures that are likely not as efficient and well-managed as an initial screening of non-violent offenders who would likely be released if given adequate representation at bail hearings.

Overall, the Baltimore project found several subjective benefits to providing representation for indigent defendants at bail hearing; more defendants released on their own recognizance, an increased likelihood that defendants would have their initially set bail reduced at the bail review hearing, a greater reduction in bail amount, an increase in the amount of defendants who received affordable bails under $500, less time cumulatively served in jail, and defendants receiving longer bail review hearings. Although bail hearings tend to be perfunctory events the presence of an attorney who can verify certain information about a defendant’s employment, education, or role as a provider can help to keep the attention of a magistrate or judge who is used to speedy hearings where there is no substantive information provided. Additionally, one objective added benefit of providing defendants with counsel at the initial bail stage is to increase the faith and respect that defendants have for the judicial system. A defendant may be more likely to respect the system if he/she feels he/she has been treated equitably and has been given equal access in trying to contest the prosecution against him/her. The negative effects of pretrial detention also impact the lives of people other than the defendant. Children, spouses, and families of indigent defendants who are presumably innocent until proven guilty are left without caretakers or providers virtually overnight. The defendants whose liberty is encroached upon prior to an adjudication of guilty are not the only ones who pay the price of pretrial incarceration at such alarming rates. The Rothgery case illustrated how a man who was erroneously accused of a crime and not given adequate representation lost his job and later his home. Undoubtedly, this denial of equal access to the legal system severely and negatively affected his and his wife’s lives. Lastly, as there is also evidence to suggest that pretrial detention leads to higher conviction rates and longer sentences it is imperative that legal counsel be provided at initial bail hearings to sustain the fair trial standard set by the Constitution. All of the negative effects that a denial of counsel at the initial appearance can have are sufficient reason to try and achieve a mandated requirement of counsel at initial appearances in all jurisdictions.

E. A call to arms for all members of the judiciary

While the most effective solution would be to have the Supreme Court explicitly mandate the States to mandate attachment and appointment of counsel to indigent defendants at the initial hearing, this may not occur as the Court tries to avoid a federalist issue. However, there are other ways in which proponents of this can advocate for increased access to justice for indigent defendants in pretrial hearings. The conclusions supported by the Manhattan Bail Project, the Baltimore Bail study, and other such studies of the effects of pretrial detention should serve as persuasive material for advocates to use in trying to change State laws. Certain states, although denying defendants representation at initial hearings, have state statutes that mandate legal representation for all stages of a criminal case. The critical stage analysis came about in Wade when the court declared that an accused “not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial”. The court determined that the presence of counsel at critical stages would help to avoid a substantial prejudice to the rights of defendants. The bail hearings fit within the Court’s critical stage analysis under Wade. An attorney’s presence prevents a defendant from making incriminating statements, allows for counsel to begin immediate investigation and preparation of a defense, filter out any erroneous or mischarged cases, and leads to lower conviction rates and prison sentences. The increased conviction rates and prison sentences that result from defendants not being given counsel is even more demonstrative of the ways in which indigent defendants appearing at initial appearances without counsel are at a potential for substantial prejudice and denial of a right to a fair trial. This is even more worrisome in light of the fact that more than 90% of all cases will never go to trial.

Additionally, bail proceedings have much in common with formal felony arraignments that were long ago recognized as a critical stage that mandated the appointment of counsel in case law. These proceedings are alike in that a defendant is informed of the charges against him/her, faces the loss of liberty, and faces interaction with a system full of unknown substantive and procedural rules. The same risks of making potentially damaging decisions for a defendant’s case at a felony arraignment are present at a bail hearing. Defendants risk saying things on the record that are inculpatory, they risk not knowing what action to take after an erroneous charge, and they risk losing their liberty. The pretrial detention rights of an accused are not any less important or substantial to a defendant’s right to a fair trial, particularly in light of evidence that being detained pretrial leads to negative outcomes at trial.

In conclusion, the right to representation at bail hearings where a defendant’s liberty is initially at stake is paramount to achieving equal access to justice in our criminal system. Bail hearings satisfy the critical stage analysis that courts currently use to determine when appointment of counsel is necessary. The data that supports the negative effects pretrial detention can render on the outcome of a defendant’s criminal proceedings is supportive of the fact that the bail hearing where pretrial custody is determined is a critical stage. The substantive right to a fair trial is at risk when pretrial detention hearings are conducted without counsel and have negative impacts on the disposition of a defendant’s case. The Courts have recognized the bail hearing to be the first stage of an adversarial criminal prosecution. Consequentially, the right to a counsel as an adequate way of defending oneself against punitive pretrial detention is critical to the protection of the right to liberty. Our judicial system is predicated on the presumption of innocence and an equal right to justice for all. Unfortunately, our current system of not providing poor defendants representation at initial hearings that lead to higher rates of pretrial incarceration goes against both these principles. Our current system does not work to detain the dangerous; rather it only works to keep poor racial minorities incarcerated in even the most minor of cases. If we seek to have our judicial system be seen as a model system that exemplifies equality and due process right for all then we need to ensure that ALL defendants are given counsel throughout all stages of a criminal case. The test of the quality of a civilization is said to be its treatment of those charged with a crime, and in order to live up to the quality of democracy we wish to be we need to raise the standards by which we treat our indigent defendants.

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