NACDL Resolutions and Policies on Pretrial Practices

NACDL supports pretrial policies and practices which ensure the protection of fundamental constitutional rights including the presumption of innocence, the prohibition on excessive bail, and robust due process protections. Fundamental to preserving these rights, is NACDL's efforts to ensure the right to counsel at first appearance.

Counsel at First Appearance

Despite the Sixth Amendment's promise that an accused have the right to the assistance of counsel in "all criminal prosecutions," and the recognition by the Supreme Court that an individual "requires the guiding hand of counsel at every step in the proceedings against him"{1} 1 Powell v. Alabama, 287 U.S. 45, 69 (1932) currently there is no guarantee of counsel at first appearance. To date only 10 states require representation be provided at first appearance.

For those arrested and detained, the first appearance before a judicial officer is one of the most consequential moments in the case. Whether called an initial appearance, advisement, arraignment, or any other name, this is a "critical stage" in the proceeding as decisions made regarding liberty and detention have long-lasting impacts on how a case will proceed. 

Those detained pretrial are more likely to plead guilty; more likely to be sentenced to jail or prison and receive a longer sentence than their non-detained peers. Those detained as little as 8 days are 56% more likely to be re-arrested during the pendency of their case and 51% more likely to being arrested up to 2 years after the case concludes.{2} 2 LJAF The Hidden Cost of Pretrial Detention (2013) With such widespread and fundamental impacts, it is vital that every accused have access to the assistance of counsel

In 2008 NACDL advanced this position in its amicus brief in Rothgery v. Gillespie County{3} Rothgery v. Gillespie County, 554 U.S. 191 (2008). Again in 2010 NACDL urged the recognition of early, engaged representation by counsel as a core tenant of a constitutionally effective public defense system in its amicus brief in Hurrell-Harring v. State.{4} Hurrell-Harring v. State, 15 N.Y.3d 8 (2010) In 2012 NACDL's Board of Directors formalized this position. 

Resolution Urging the Recognition of Right to Counsel at Initial Appearance

 Pretrial Release and Limited Use of Financial Bond

In addition to calling for counsel at any hearing in which liberty is at stake, NACDL urges the adoption of policies designed to:

  • Promote pretrial liberty
  • Utilize the least onerous conditions of release
  • Severely limit the use of financial bonds
  • Abolish the use of commercial compensated surety (bail bondsmen)
  • Ensure due process protections for those subject to detention
  • Provide credit for any future sentence for all forms of pretrial restrictions on liberty

Resolution on Pretrial Release and Limited Use of Financial Bond

NACDL on Risk Assessment Instruments

Recognizing the important role impacted community and local criminal defense stakeholders play in identifying the resources needed to create a more fair system of pretrial justice for that community, the ACCD, Gideon’s Promise, NAPD,NACDL, and NLADA issued a Joint Statement: Pretrial Risk Assessment Instruments, Updated in March 2019, the statement provides a set of checks and balances which should be utilized to reduce unnecessary detention and help eliminate racial and ethnic bias in the outcomes of pretrial decisions. 

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Joint Statement on Risk Assessment Instruments

More on Risk Assessments

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