Freedom Denied Part 3: Judges Must Stop Unlawfully Jailing Poor People Without Lawyers at the Initial Appearance Hearing
In Part II of our series describing the culture of detention that pervades the federal pretrial system, we explained how our Federal Criminal Justice Clinic’s new report, Freedom Denied, found that judges and lawyers frequently misapply the Bail Reform Act’s standard for detention at the Initial Appearance—often resulting in illegal jailing.
This post addresses the second of our four findings and recommendations: “Judges must stop unlawfully jailing poor people without lawyers at the Initial Appearance hearing.”
We were the first to uncover a serious and previously unexplored “access-to-counsel crisis” in the federal system. In more than a quarter of federal district courts across the country, an indigent individual can be jailed without a lawyer by their side:
In many federal courts, judges lock poor people in jail without a lawyer during their Initial Appearance, in violation of federal law. Our study uncovered a national access-to-counsel crisis: judges in more than one-quarter of the 94 federal district courts do not provide every arrestee with a lawyer to represent them during the Initial Appearance. See Figure 6. In fact, 72% of the districts where we interviewed or surveyed stakeholders deprive at least some individuals of counsel at this first bail hearing. While the scope of the problem varies across districts and divisions, in every court that exemplifies this particular crisis, arrestees are jailed without counsel. These widespread deprivations of counsel contribute to the culture of detention and drive high jailing rates at Initial Appearances nationwide….
Additionally, in interviews with and surveys of stakeholders, we learned that in at least 26 federal districts, judges fail to ensure that arrestees are represented by counsel at the Initial Appearance in some—and often many—cases. In certain courts, 100% of arrestees are deprived of counsel during their Initial Appearance. Our findings surely understate the scope of this particular crisis, as we were unable to interview stakeholders in 58 federal districts (62% of the total districts).
Indigent people who went unrepresented were locked in jail 100% of the time in our study; 92% were people of color:
Our data show that these legal failures come with serious consequences. Every uncounseled Initial Appearance we observed ended in pretrial detention—a far higher detention rate than at the Initial Appearances where arrestees were represented by counsel. See Figure 17. And nearly every single arrestee we observed who faced an Initial Appearance without a lawyer was either Black or Latino, exacerbating the already pronounced racial disparities in the criminal system. See id. These findings are particularly troubling given that most people charged with a federal crime do not have the money to hire their own lawyer and therefore rely wholly upon judges to appoint counsel at their Initial Appearances.
A judge who does not ensure that every single individual who appears before them is represented by counsel at the Initial Appearance violates a number of federal laws.
First, forcing someone to appear without counsel violat
Article from Reason.com
