Urging the Recognition of Right to Counsel at Initial Appearance

NACDL urges all states and U.S. territories to adopt such constitutional provisions, laws or regulations necessary to guarantee that every accused person, irrespective of financial capacity to engage counsel, shall be guaranteed counsel at the first appearance before a judicial officer at which liberty is at stake or at which a plea of guilty to any criminal charge may be entered. ............

The National Association of Criminal Defense Lawyers (NACDL) is the largest organization in the United States advancing the mission of the nation's criminal defense lawyers to ensure justice and due process for persons accused of crimes.  NACDL supports the right of all persons accused of crime to be represented by effective assistance of counsel at every stage of a criminal prosecution, including the defendant’s first appearance when a judicial officer informs the accused of the charges and orders pretrial release or bail.  Representation at the bail and pretrial release determination promotes a successful attorney-client relationship by permitting counsel to participate in judicial consideration at the moment a person’s liberty is decided.  As the Supreme Court has said: “Navigating the  . . . process without a lawyer’s assistance is a perilous endeavor for a lay person, and well beyond the competence of individuals . . . who have little education, learning disabilities and mental impairments.”1  Absent counsel, unrepresented defendants are more likely to face an unaffordable bail and extended pretrial detention, onerous conditions of pretrial release, and added difficulties in preparing a defense.  In addition, in many jurisdictions unrepresented accused persons are permitted or encouraged to enter guilty pleas at an initial appearance, notwithstanding that a guilty plea to even a minor charge can trigger significant negative consequences of which the accused may not be aware.

Despite the constitutional guarantee of counsel for persons accused of felony and misdemeanor crimes, states have not uniformly interpreted that right to require representation at the initial judicial appearance.  Indeed, only 10 states2 uniformly provide counsel at the first bail and pretrial release judicial determination that typically is conducted within 24-48 hours of arrest.3  In contrast, 10 states continue to deny counsel at the initial bail hearing.4  The remaining 30 states decide representation at the pretrial release hearing on a county-by-county basis.5  These “hybrid” states roughly divide between states where localities provide counsel only in 1-2 jurisdictions from those states where counties guarantee a lawyer in one half or more of local jurisdictions.  When counties are left to make a decision about counsel at bail, often they decide to deny counsel for financial reasons.

In recent years, NACDL has provided amicus support in litigation advocating for a right to counsel at first appearance and has championed the critical importance of counsel at indigent defendants’ initial appearances, particularly those at which liberty is at stake.  In 2008 in Rothgery v. Gillespie County, Texas,6NACDL assumed a leading role as amicus in support of petitioner’s claim that he had been denied the assistance and assignment of counsel when bail was initially determined.  The Supreme Court’s 8-1 ruling cited NACDL’s findings that Rothgery’s right to counsel attached at his first appearance before a magistrate.7   The following year, NACDL submitted an amicus brief in Hurrell-Harring v. State,8 and joined a constitutional challenge against five New York state counties’ practice that deprived counsel to   indigent defendants when first appearing before a judicial officer.  In Harrell-Haring, the New York Court of Appeals declared unconstitutional the practice of prosecuting without providing legal representation.  It held that bail was a critical stage requiring government to provide appointed counsel to indigent defendants at their initial hearing.  NACDL’s amicus persuaded New York’s highest court to declare that an accused’s pretrial liberty interests triggered the “most serious consequences, both direct and collateral, including the loss of employment and housing and inability to support and care for particularly needy dependents.”9  Then in 2011 in Richmond v. DeWolfe, NACDL joined Baltimore city’s indigent plaintiffs and submitted an amicus brief that argued in favor of their Sixth and Fourteenth Amendment due process right to counsel.  Just last month, Maryland’s Court of Appeals unanimously ruled that defendants’ statutory right to counsel entitled an accused to counsel’s representation when first appearing before a Maryland commissioner. 

Recently, in Colorado NACDL provided impetus for its Colorado affiliate and other justice reform groups to challenge a statute that requires indigents accused of misdemeanors to meet with the prosecutor as a pre-condition to the appointment of counsel.  This practice inevitably leads to defendants either pleading guilty or making uncounseled, post-arrest inculpating statements.  A lawsuit, Colorado Criminal Defense Bar v. Suthers is now pending in the United States District Court in Colorado challenging this practice. 

NACDL has also underscored the vital importance of counsel at initial appearance through the issuance of major research reports.  Through this research  NACDL has consistently highlighted the serious consequences that ensue when an accused person does not have immediate access to counsel and must make critical decisions, including determining whether or not to plead guilty to a charge or whether or not to enter a diversion program.  In Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken Misdemeanor Courts, NACDL identified pervasive deprivation of access to counsel at and well beyond initial appearances.  The report documented countless instances in numerous jurisdictions in which accused persons were detained, or entered guilty pleas without counsel.  Its frequent citation is evidence that it has sparked tremendous interest and bolstered national reform efforts.  Similarly, in Three-Minute Justice: Haste and Waste in Florida’s Misdemeanor Courts, NACDL documented pervasive pre-trial injustice throughout Florida.  Overall, in a study that focused on 21 counties, the report found that sixty-six percent of defendants appeared at arraignment without counsel.

NACDL’s intervention as amicus and its commitment to expose the widespread and harmful consequences when counsel is not provided evinces a consistent and clear policy of advocating for a right to counsel at the initial appearance as the surest guarantee for safeguarding individual liberty and fair trial rights.  Accordingly the Task Force on Pretrial Justice recommends that NACDL formalize this policy.


NACDL urges all states and U.S. territories to adopt such constitutional provisions, laws or regulations necessary to guarantee that every accused person, irrespective of financial capacity to engage counsel, shall be guaranteed counsel at the first appearance before a judicial officer at which liberty is at stake or at which a plea of guilty to any criminal charge may be entered.

1 Halbert v. Michigan, 545 U.S.605, 621 (2005).

2 Prosecution Without Representation, 59 Buff. L. Rev. 333, 389 (2011): ten states that provide representation at first judicial appearance include California, Connecticut, Delaware, Florida, Hawaii, Maine, Mass., North Dakota, Vermont and Wisconsin (and the District of Colombia).

3 County of Riverside v. McLaughlin. 500 U.S. 44 (1991).

4  Prosecution Without Representation at 396 (ten states that deny counsel at first appearance include Alabama, Kansas, Maryland, Michigan, Mississippi, New Hampshire, Oklahoma, South Carolina, Tennessee and Texas).

5  Id. At 401-408 (twelve “majority” hybrid states provide counsel in most counties include Idaho, Kentucky, Louisiana, Minnesota, Montana, New York, Ohio, Oregon, Rhode Island, Utah, Virginia, and Washington; and eighteen “minority” hybrid states guarantee counsel only in 1-2 counties including Alaska, Arizona, Arkansas, Colorado, Georgia, Illinois, Indiana, Iowa, Missouri, Nebraska, New Jersey, New Mexico, North Carolina, Pennsylvania, South Dakota, West Virginia, and Wyoming).

6 554 U.S. 191 (2008) (“What makes a stage critical is what shows the need for counsel’s presence.”).

7 Id. at

8 15 N.Y.3d 8 (2010)

9 Id. at 20.

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