On August 22, Kim Ball, research professor and director of the Justice Programs Office at American University, representing the Right to Counsel (R2C) National Campaign, moderated a panel at the National Association of Pretrial Services Agencies annual conference titled The Importance and Benefits of Counsel at First Appearance. R2C consortium member, The National Association of Counties, was instrumental in helping plan, organize, and put on this presentation. Fellow panelists included D. Ashley Pennington of the Public Defender for Charleston and Berkeley Counties and Geoff Burkhart, executive director of Texas Indigent Defense Commission, and attendees included judges, federal and state pretrial associates, defense attorneys, and local policymakers interested in learning about how they can help ensure the Sixth Amendment right to counsel.
The panel’s main purpose was to inform the audience about how important the early entry of counsel is and that it is essential to ensuring pretrial liberty. Professor Ball opened the presentation talking about two research projects, one from the Baltimore City Lawyers at Bail (LAB) project and one from the Arnold Foundation. Results from a study produced by the LAB project show that counsel at first appearance supports pretrial liberty, saves money, and promotes public safety. This study found that as compared to someone without counsel, a person with counsel at bail is more likely to be released on the same day as arrest; more likely to be released on one’s own recognizance; and more likely to have the bail amount reduced. All of this resulted in fewer individuals using jail beds, which saved money and came at no additional risk to the community. Further evidence of the importance of counsel at first appearance can be found in the Arnold Foundation’s report about low- and moderate-risk defendants detained before trial in Kentucky. This study shows that when defendants are held the entire time pretrial versus defendants released at some point prior to trial, they are three times more likely to be sentenced to prison and they receive two times longer prison sentences. Together, these two studies show that early representation can reduce prison costs and increase release rates for deserving defendants.
The final study that Professor Ball discussed was from the Alameda County’s Innovative Solutions in Public Defense Initiative, which supports new projects between practitioners and researchers. Through this partnership with the National Legal Aid and Defender Association, a R2C consortium member, Alameda County implemented counsel at first appearance. Preliminary results from evaluating this program show positive improvement in release on own recognizance (ROR) rates, increasing from a 2 percent release rate to 10 percent release rate. The full report about Almeda County will be released soon. Most of the panel attendees were not familiar with these research studies, underscoring the importance of having this presentation to share these important findings.
Following Professor Ball’s overview, Mr. Pennington discussed Charleston’s efforts to improve pretrial liberty, providing the defender’s perspective. Charleston is part of the MacArthur’s Safety and Justice Challenge. As part of the initiative and with the input of all criminal justice system actors, including defense, Charleston added risk assessment at their bond court hearings. Because of this change, there was an increase in general session personal recognizance (PR) bonds of 29 percent and an increase of 22 percent in summary courts. Following, Mr. Burkhart discussed the variance in public defense delivery systems in Texas, pointing out that over 2/3 of Texas counties are rural, which presents a challenge when providing counsel at first appearance. He spoke specifically about three countries in Texas (Bexar County, Cameron County, and Harris County) that have added counsel at first appearance and highlighted that as a result of representation at first appearance, all counties have seen more individuals on pretrial release with better compliance with release conditions. First appearance is critical to securing pretrial release, promoting attorney-client relationships, and achieving just case outcomes.
The audience soaked in the research and specific county examples and were engaged, asking questions about how to implement counsel at first appearance in their countries.
For more information on the session or help with counsel at first appearance, please contact KimBall@american.edu.
Douglas L. Colbert et al, “Do Attorneys Really Matter? The Empirical and Legal Case for Representation at Bail”, 23 Cardozo L. Rev. 1719 (2002)
Pretrial Criminal Justice Research Summary, Arnold Foundation (2013) and Lowenkamp, C.T., VanNostrand, M., & Holsinger, A., Laura and John Arnold Foundation, “The Hidden Costs of Pretrial Detention” (2013)