Providing adequate counsel is a key challenge to addressing high rates of pretrial detention in rural areas, according to Right on Crime’s recent report, Open Roads and Overflowing Jails. Twelve out of 93 counties in Nebraska, for example, have no lawyers; six counties have only one. In Wyoming, the state’s top defender has warned that overwhelming caseloads in her office were creating “an ethical and a constitutional crisis.” Last year Maine, the state with the largest rural population, ran out of funding for its court-appointed attorneys two months early.
The U.S. Supreme Court has not specifically addressed whether the Sixth Amendment provides a right to counsel appointed in time to advocate at a bail hearing. However, the case of Rothgery v. Gillespie County (2008) may ultimately lead to a recognized right to counsel at bail hearings. In Rothgery, the Court held that “the right to counsel guaranteed by the Sixth Amendment applies at the first appearance before a judicial officer at which a defendant is told of the formal accusation against him and restrictions are imposed on his liberty”—even if the prosecutor is not present.
The facts of the case clearly demonstrate the importance of counsel at the pretrial stage. Rothgery bonded out after his first appearance on charges of felon in possession of a handgun. But he was re-arrested after his indictment and assigned a higher bond that he could not afford, resulting in 3 weeks in jail. While he had requested an attorney after his first appearance, he was not assigned one until until he was detained. The newly assigned defense not only promptly obtained a bail reduction so that Rothgery could be released, but also showed that Rothgery had never been convicted of a felony that would have made handgun possession illegal, and the case eventually ended in dismissal.
Rothgery’s experience reflects what research has shown: people represented by legal counsel at bail hearings are more likely to be released on recognizance, have bail set at a lower amount when it is set (by an average of $600), and spend significantly less time in jail (two days, compared to nine days for those without counsel). (See, also, Alissa Pollitz Worden, Kirstin A. Morgan, Reveka V. Shteynberg, and Andrew L.B. Davies, What Difference Does a Lawyer Make? Impacts on Early Counsel on Misdemeanor Bail Decisions and Outcomes in Rural and Small Town Courts, Criminal Justice Policy Review, 2018, Vol. 29 (6-7) 710-735.)
Many states are taking steps to address the shortfall of rural attorneys. Maine’s sole law school is offering Rural Practice Fellowships that give students the opportunity to work in private law firms in rural areas for 10 weeks over the summer. South Dakota has instituted a rural attorney recruitment program that gives qualifying attorneys incentive payments. Reaching even further back into the pipeline, Nebraska is providing interested undergraduates with pre-law career programming and guaranteed admission to the University of Nebraska School of Law. Some states may also want to look at international examples of improving access to pretrial justice; in Sierra Leone, where there were once 50 lawyers for 5 million people, a pilot project introduced paralegals to explain how the justice system works to people who are detained, challenge the legality of arrest, and clarify to both police and the people detained that bail can be granted without paying a fee.
If these programs are successful, rural areas will have addressed one part of the access to justice issue by increasing the number of attorneys. However, essential pretrial work will only be accomplished if caseloads are reasonable and they are able to be present at bail hearings. In other words, even if the supply is addressed, the question of whether states have the will to provide effective representation remains.
In South Fulton, Georgia, where the entire municipal justice system is run by black women who pride themselves on bringing their personal perspective to their work, every person is assigned a public defender at first appearance because these women want to do better than what the law requires. South Fulton is not a rural area, but it demonstrates that systems will put into place what they value. As the nation continues to turn its attention to pretrial justice, we have reason to hope that more rural areas will come to recognize the absolute importance of attorneys at bail hearings, and their critical role in preserving liberty.