Counsel at First Appearance
Research tells us that how quickly a person is released after arrest can have a profound impact on the outcome of their criminal case. Unfortunately, in Virginia, our pretrial system leads to people, especially poor people, being held unnecessarily for days before they can be released simply because they are not appointed a lawyer in a timely manner. By allowing and ensuring that individuals have an attorney when they first appear in front of a judge, bail can be considered immediately. And if a person is eligible for bail, they can return home, often within a day of their arrest, while the charges are pursued. Not having access to an attorney who can request bail, either because a public defender or court appointed counsel hasn’t been assigned or because of the jurisdiction’s policy, leads to additional and unnecessary time that a person - who has not been convicted - is being held in jail.
What Happens After Arrest?
Once someone is arrested, the decision about whether to release them, and under what conditions, is one of the first steps in the process.
The initial assessment is made by a magistrate who can decide whether to admit some people to bail the day a person is arrested.
If a person is held, they then appear in front of a judge at their first appearance, sometimes called an arraignment or advisement.
Usually this happens as soon after arrest as possible – often the next day. But in some jurisdictions where court is only held once a week, defendants may be held in jail for a full week before arraignment.
Although a lawyer may be present in some jurisdictions, in Virginia it’s not guaranteed and other jurisdictions prevent lawyers from requesting bail at this hearing at all.
Currently, with few exceptions, it is at this appearance that the process of appointing a public defender or court appointed attorney begins. (This can take hours or a couple days depending on the jurisdiction.)
Once a defendant has a defense attorney, the defense attorney can request a bail hearing. Depending on the jurisdiction the bail hearing may be a couple days after arrest of it may be several weeks.
At the bail hearing, the judge will determine whether a person should be granted bail and under what conditions.
Shortening each of these phases with the goal of getting people who are not flight risks or a threat to themselves or others out of pretrial detention as quickly as possible will go a long way toward making Virginia’s criminal legal system more fair. It will prevent many people’s lives – people who are presumed innocent – from being upended. This is where a change to a Counsel at First Appearance policy change will have an impact.
The Longer a Person is Detained, the Worse the Outcome
Worse trial outcomes - Defendants are not able to meet with their lawyers as frequently or as easily and are not able to assist with their own defense while in jail. In some cases, the length of time a person may be detained pretrial is close to the length of the sentence they would receive were they convicted. Many people feel forced to accept plea deals simply to get out of jail – even when they are innocent of the crimes they are charged with.
Pretrial detention leads to:
4x greater likelihood of being sentenced to jail
3x longer jail sentences
3x greater likelihood of being sentenced to prison
2x longer prison sentences
Worse life outcomes - Even short detentions are likely to cause disruption to the life of the person charged including:
Loss of employment
Loss of housing
Loss of custody of children or other family members in need of care
More likely to be arrested in the future – both before and after the initial set of charges are resolved
Even short detentions can have very detrimental effects to peoples lives, especially for defendants who are otherwise low risk. This is why there is such a focus on limiting the time people are held while awaiting a decision on bail.
Ensuring Counsel at First Appearance Will Make Our System More Just
As with many aspects of the criminal legal system, this is an issue of equity. In many jurisdictions, individuals who are able to afford a lawyer are able to be represented by counsel at their first appearance, while people who rely on a public defender or court appointed counsel don’t have legal representation assigned to them yet. According to an analysis in the Criminal Justice Policy Review, “Having the resources to retain private representation is the most important factor in attaining pretrial release. . . . [T]he odds of a defendant making bail who hires private representation is 45 times greater than the odds of making bail of a defendant who does not have private representation.” By ensuring counsel at first appearance to all defendants, we can reduce this disparity.
An analysis of data from jurisdictions in Upstate New York that moved to a CAFA system showed that after CAFA was introduced defendants were 10-20% more likely to have bail set at under $1,000 and three times more likely to have bail set under $500. The lower bail amounts increased the possibility that these individuals would be able to prepare for their trials at home and fully assist their attorneys. The study also found that, “having counsel present at first appearances can change the pattern of decisions judges make. Judges may release more people with fewer conditions, and impose fewer financial barriers upon those from whom they demand bail, with the cumulative result that fewer people will be detained pretrial.”
In 2008, the United States Supreme Court ruled in Rothgery v Gillespie County that that “counsel must be appointed within a reasonable time after attachment to allow for adequate representation at any critical stage before trial, as well as at trial itself.” The National Legal Aid & Defender Association explains the significance of this ruling:
The Supreme Court noted in Rothgery that although the Sixth Amendment right to counsel attaches at first appearance, whether the first appearance is a “critical stage” that requires the presence of counsel is a separate question. The Court stated that “what makes a stage critical is what shows the need for counsel’s presence,” and further elaborated that “[t]he cases have defined critical stages as proceedings between an individual and agents of the State . . . that amount to trial-like confrontations, at which counsel would help the accused in coping with legal problems or . . . meeting his adversary.”
The ruling doesn’t prescribe how states should comply with the ruling however, so different states and interpreted it in different ways.
Counsel at First Appearance May Save Virginia Money
Keeping people in jail costs taxpayers a lot of money, so fiscally it makes sense to hold people who aren’t a flight risk or a risk to themselves or others for as few days as possible. Nationwide we spend about $13.6 billion each year on pretrial detention. Studies have shown that guaranteeing counsel at first appearance is one way to “reduce overall criminal legal system costs.” A study that assessed the potential cost savings that could be realized if Cook County, Illinois moved to a CAFA policy found that, “Cook County could save between $12.7 and $43.9 million and eventually close approximately twenty-two jail units throughout the county.”
Proposed Legislation
This session Delegate Williams-Graves and Senator McClellan have proposed legislation that would guarantee all defendants in Virginia counsel at first appearance. Provisions in the bills include:
A detained person will appear in court the next time court is in session after their arrest, and bail will be considered at that time.
If a defendant has hired counsel, the attorney will be given the opportunity to argue for bail. If a defendant has not hired counsel they would be provided an attorney for the bail hearing, regardless of their financial resources.
The attorney would be “given access to the accused and to bail information a reasonable time prior to the start of any proceeding.”
The bill is not prescriptive as to how each county should meet these requirements. Small counties that hold court once a week and utilize court appointed counsel will likely have different implementations than large counties that hold court daily and have public defenders offices.
If passed, we expect that this bill will dramatically improve the pretrial phase of a court case. More people will return home within a day or two of their arrest, limiting the damage done to the defendants life and better enabling them to prepare a defense.
This article was authored by Carrie Brown