Closing Gap in Right to Counsel at Bail Hearings Promotes Justice and Saves Taxpayers, New TCP Report Says

Providing indigent defendants with an attorney at initial bail hearings is critical to ensuring fairness and due process in our criminal justice system, according to a new report released on March 18 by The Constitution Project National Right to Counsel Committee.  It would also lower the burden on taxpayers by limiting the number of people remaining in jail while awaiting a trial to only those who pose a genuine public safety risk.

“The lack of counsel early in the process is one of biggest gaps remaining in making certain that indigent people accused of a crime can exercise their constitutional right to a lawyer, as guaranteed by the Sixth Amendment,” TCP President Virginia Sloan said in press release.

“Without effective representation at a pretrial release hearing, all too often poor defendants remain locked in jail at great cost to themselves, their families and society as a whole, and too frequently innocent people plead guilty to lesser crimes they did not commit simply to gain their freedom,” she said.

The report points out that many states and localities continue to conduct their initial judicial hearings inside a police precinct, a jail, or via video to a court without a lawyer for the defendant.  The public is often not permitted at the hearings, which are conducted by judicial officers who frequently overlook the law’s preference for release before trial, and poor defendants without a lawyer are unaware of the many less onerous, non-financial options available for pretrial release.  And, even when public defenders are appointed early enough in the process, their caseloads are often so high and resources so sparse as to render representation of their clients ineffective.

The committee offered six consensus recommendations for reforms to make the promise of effective counsel during the first bail hearing a reality, including conducting the first appearance hearings in public, so defense counsel and family members can present information supporting the least onerous pretrial release provisions possible, and redirecting much of the money saved through reductions in jail populations toward supporting early assignment of counsel. The committee also urged state and federal agencies to do a better job at collecting data on pretrial representation and case outcomes.

The full report, which was drafted with the generous assistance of University of Maryland law professor Doug Colbert, is available online.

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