Pretrial Justice Demands Accused Have a Lawyer for Initial Bail Hearing

It's official. President Obama and many members of Congress, both Republican and Democratic, agree that our criminal justice system needs a massive overhaul. While this is a truly exciting moment for criminal justice reform advocates, the bipartisan call for changes in the law often overlooks the critical role of counsel for those who cannot afford a lawyer on their own. And while much of the national conversation has focused on overincarceration in the federal and state prison systems, a much larger problem exists in our jails.

On any given day, there are more than 700,000 people locked up in jails across the country, many of them never convicted of a crime. In fact, people awaiting trial account for more than 60 percent of the inmate population in our jails nationwide. Yet in many instances, these individuals are not guaranteed access to a lawyer when the vital decision on their pretrial freedom is determined, and the consequences for those individuals, and for the system as a whole, are enormous.

The first appearance, also known as an initial bail or pretrial release hearing, is the first time a judicial officer determines whether the accused will be released pending trial. When an attorney is present at the first appearance, the accused is twice as likely as an unrepresented person to be released the same day he or she is arrested. Moreover, without an attorney as a safeguard against often draconian or even illegal bail-setting practices, poor and low-income people, who cannot make even a relatively modest bail amount, are less likely to make an effective argument for alternatives to monetary bail and so remain incarcerated.

Even worse, many individuals will feel compelled to plead guilty to a crime they did not commit rather than remain incarcerated while awaiting trial. They may choose to do this for any number of reasons, such as the loss of personal liberty by being confined before trial, losing a job, the inability to support loved ones, missing loan repayments, and being evicted from a home. And once a guilty plea is entered, other consequences -- such as deportation, a loss of government benefits, and an inability to obtain a job -- take effect.

The absence of counsel at initial bail hearings also helps to explain the grossly disproportionate racial and class composition of today's pretrial jail population. Income and wealth disparities mean that African-Americans, Latinos and low-income whites are the groups most unlikely to afford bail. One study reveals that the bail amounts for black male defendants are 35 percent higher than those set for their white male counterparts. The right to counsel at first appearance proceedings underlies basic constitutional rights for our nation's most vulnerable populations, including the assurance of equal treatment and due process.

We need a concerted effort from all branches of government to make access to effective counsel at first appearance a reality in both state and federal courts. In a recent report, Don't I Need a Lawyer? Pretrial Justice and the Right to Counsel at First Judicial Bail Hearing, The Constitution Project National Right to Counsel Committee made several recommendations to improve the pretrial criminal justice system and ensure that defendants have early access to effective legal representation.

One recommendation is a call for government to ensure that all defendants are provided promptly with counsel at their first bail hearing. These hearings should be held in public courtrooms and enable defense counsel, pretrial release services representatives and family members to present information that would support the least onerous release conditions appropriate. Imposing financial conditions for pretrial release discriminates against defendants who lack resources and favors economically advantaged defendants who can afford those conditions; thus, financial bond and money bail should be used sparingly. Finally, the federal government and state governments should engage in greater data collection by tracking the results of the hearing, whether or not counsel was assigned, the length of pretrial detention and amount of any bail required, the outcome of the trial, the sentence, and the defendant's race.

In addition to the human costs, taxpayers should be concerned by the more than $9 billion that states and counties spend annually to incarcerate defendants awaiting trial. Some of the savings realized by cutting jail populations could support effective representation of defendants during their initial bail hearings, as well as funding programs to prevent crime in the first instance, such as investments in education and jobs.

To have a fair and even playing field for all who face the criminal justice system, it is essential that indigent defendants have access to an effective lawyer at their bail hearings. The federal and state governments must recognize the critical importance of a lawyer's presence during the pretrial stage. The law presumes that everyone is innocent unless proven guilty and that pretrial detention ought to be the exception, not the norm. However, without the presence of counsel to safeguard this constitutionally-guaranteed right, it is too often overlooked in courtrooms across the country.