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Inside Criminal Justice

The Missing Public Defender

March 19, 2015 06:13:22 am

Photo by StockMonkeys.com, via Flickr

Providing lawyers to all defendants who face pretrial detention could keep many of them out of jail and save cities and counties money, says a new report from criminal justice experts.

The Washington, D.C.-based Constitution Project contended yesterday, in a report titled "Don't I Need A Lawyer?",  that lawyers should be appointed "in a timely manner prior to initial bail and release hearings." 

Despite the 52-year-old Supreme Court ruling in the case known as Gideon v. Wainwright, which guarantees defendants the right to a lawyer in trials, few criminal cases end up going to trial, and many jurisdictions don't appoint lawyers for needy defendants when they first arrive in court. The result is that many end up being jailed for weeks or months because they are unable to afford bail amounts set by judges.

"Too many indigent defendants across the country face the daunting specter of representing themselves when courts fail to appoint counsel and then determine whether an accused will remain free or incarcerated in the days, weeks, or months before trial," said Constitution Project President Virginia Sloan.

In addition to having lawyers advise defendants, judges should get "an objective risk assessment that measures a defendant's flight risk and danger to the community," the report urged.

It quoted a recent study from the Arnold Foundation contending that courts can use risk-assessment tools based on the nature of the accusations and the defendant's background to predict the likelihood of posing a risk to the public or failing to appear for future court appearances.

The report said that "today’s public defenders and assigned lawyers still remain missing from first bail hearings in numerous state courts." Quoting from a 2008 survey, it said that lawyers are never present at the first bail hearing in eight states, while defenders appear infrequently or in token jurisdictions in 17 states.

In 11 other states, a poor person stands a 50 percent or better chance of obtaining an assigned lawyer’s representation, depending upon where the arrest occurred.

Failure to have a lawyer representing them can have severe consequences for defendants. Law Prof. Douglas Colbert of the University of Maryland, who served as the main legal adviser to the committee that issued the report, cited the case of an unrepresented man accused of stealing two candy bars worth $4 who spent 27 days in jail awaiting disposition of the case.

The average length of stay in U.S. jails has increased from 14 days in 1983 to 23 days in 2013, Nancy Fishman of The Vera Institute of Justice said at the release of the report yesterday. Overall, nearly two-third of the 731,000 inmates in jails nationwide on any given day are awaiting a trial or plea proceeding to end their case, Fishman said.

Three-fourths of unconvicted jail inmates are there on drug charges or relatively minor non-violent, "public order" or traffic offenses who simply cannot afford to make a bail payment determined by a court.

The U.S. Justice Department is becoming more active on the problem of pretrial release, filing "statements of interest" in four cases recently around the U..S. seeking more appointments of lawyers for poor defendants. One of these filings was made last Friday seeking representation of juveniles in Georgia's Cordele Judicial Circuit.

In another case, DOJ is supporting a woman in Clanton, Al., who says she was jailed for minor misdemeanor offenses because she could not pay a $2,000 bond.

As bad as conditions are for many poor defendants, they used to be worse in some places. Senior Judge Andre Davis of the U.S. Court of Appeals for the Fourth Circuit, a former local judge in Baltimore, recalled that judicial decisions on whether Maryland arrestees would be released before trial in decades past were made in police barracks. Davis said one judge even disputed the basic proposition that a defendant is presumed innocent.

The committee that issued yesterday's report was headed by Rhoda Billings, former North Carolina Chief Justice; District Attorney Robert M.A. Johnson of Anoka County, Mn., former president of the National District Attorneys Association; and Timothy K. Lewis, a former judge of the U.S. Court of Appeals for the Third Circuit.

Ted Gest is president of Criminal Justice Journalists and Washington bureau chief of The Crime Report. He welcomes comments from readers.

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