Early Representation = Limiting Detention

By Wendy Shang posted 09-06-2018 11:01


Although the Supreme Court has stated that counsel should be present at any “critical stage of trial,” what those stages are, exactly, is left to the states to determine. Because someone who is detained before trial is more likely to be incarcerated after the case is resolved, and for a longer time, bail hearings should universally be regarded as critical.

The important distinction is having counsel prepared and present at this critical hearing, not just appointed at the hearing. As the Constitution Project National Right to Counsel Committee  wrote in 2015,

No other party is charged with the ethical duty to challenge a bail amount that appears to be higher than necessary to ensure a defendant’s appearance in court. Defense counsel can object to bail that is so far outside a defendant’s means that it appears to have been determined without consideration of the “reasonably calculated” model for reaching a constitutional amount that the Stack Court mandated more than 60 years ago.

The importance of early counsel has been demonstrated repeatedly. Studies shows that people who receive legal representation at bail hearings spend less time in jail, are more likely to be released on recognizance, and when money bond is set, to have lower amounts. Researchers have attributed these outcomes to both the attorneys’ enhanced ability to argue for release as well as their ability to act as liaisons to pretrial services and release programs. This was the case in Yakima County (WA), where the addition of an dedicated defense attorney to the bail hearing with a dedicated prosecutor has meant that both parties are able to provide the judge with information, such as identifying local resources that can increase the likelihood of pretrial success. Pretrial release rates in Yakima County increased from 53% to 73% with no changes to court appearance or public safety rates.

This idea is not new. But as states try to reform their pretrial systems and simultaneously cope with crisis-level caseloads and underfunding in public defense, it is helpful to remember that funding early representation can be a win-win situation. Effective assistance of counsel, as guaranteed by the sixth amendment, ensures not only that the right to pretrial liberty is protected, but also that public funds are being used thoughtfully.  In just the first five months of operation, the San Francisco Pretrial Release Unit cut 4,689 jail bed days, saving the city approximately $806,508 in incarceration costs; the unit’s annual budget is less than half that amount.

Although traditionally been seen as a liberal cause, indigent defense is lately gaining traction among some conservatives who see it as protection from government overreach, especially when 97% of cases will be handled without a trial. In testifying to the Idaho legislature on indigent defense, one witness noted, the right to counsel “goes to the core of who we are as Americans because it is a question of liberty versus tyranny.”

Having effective assistance of counsel at a bail hearing is the difference between having a doctor ready to operate on an appendix and one scheduled to operate some time later. Timing makes a difference, and in many cases, heads off deeper, more expensive and unnecessary consequences. The right to effective assistance of counsel at the bail hearing is one that all jurisdictions can and should support.

Join our #Right2Counsel Twitter chat (@pretrial) with American University’s Justice Programs Office (@AU_JPO) on September 12 at 2 pm (ET) to discuss the critical role of defense counsel in pretrial outcomes and reform.