The Impact of Counsel at First Appearance on Pretrial Release in Felony Arraignments: The Case of Rural Jurisdictions

• DOI: 10.1177/0887403419873018
• Author: Kirstin A. Morgan,Alissa Pollitz Worden,Andrew L. B. Davies,Reveka V. Shteynberg
• Published date: 01 July 2020
• Date: 01 July 2020
• Subject Matter: Articles

https://doi.org/10.1177/0887403419873018

Criminal Justice Policy Review

2020, Vol. 31(6) 833 –856

© The Author(s) 2019

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DOI: 10.1177/0887403419873018

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Article

The Impact of Counsel

at First Appearance on

Pretrial Release in Felony

Arraignments: The Case of

Rural Jurisdictions

Alissa Pollitz Worden1, Reveka V. Shteynberg2,

Kirstin A. Morgan3, and Andrew L. B. Davies4

Abstract

This article examines the impact of early provision of counsel on judges’ pretrial

release and bail decisions in two rural counties in upstate New York, in cases

involving felony charges. This study builds upon previously reported research on

misdemeanor cases. We note that although the stakes are higher in felony cases,

few studies have investigated the dynamics of first appearance decisions at either

level. We investigate the hypotheses that when defendants are represented by

attorneys at their first appearances in court, (a) judges are more inclined to release

on recognizance or under supervision, (b) judges impose less restrictive bail amounts,

and (c) as a consequence, defendants spend less time detained prior to disposition.

We find mixed support for these hypotheses, although some evidence that counsel

at first appearance (CAFA) produces the expected outcomes. We conclude that

the implementation of programs intended to ensure CAFA may be tempered by

courthouse cultures, and that future research on court reform should include the

study of rural jurisdictions.

Keywords

bail reform, rural crime, right to counsel, criminal court

1University at Albany, NY, USA

2California State University, San Bernardino, CA, USA

3Appalachian State University, Boone, NC, USA

4Southern Methodist University, Dallas, TX, USA

Corresponding Author:

Alissa Pollitz Worden, University at Albany, 135 Western Avenue, Albany, NY 12222, USA.

Email: aworden@albany.edu

873018CJPXXX10.1177/0887403419873018Criminal Justice Policy ReviewWorden et al.

research-article2019

834 Criminal Justice Policy Review 31(6)

Introduction

Over the past 5 years, state policymakers and local court practitioners have been

engaged in reforming pretrial practices at a level not seen since the 1960s. In 2018,

for example, Alaska introduced a risk assessment tool for use in pretrial detention

decisions and has since reduced both the number of people detained pretrial and the

proportion from whom money bail was imposed (Alaska Criminal Justice Commission,

2018). New Jersey almost entirely eliminated money bail in 2017 and introduced a

risk assessment tool to assess defendants prior to bail determinations (New Jersey

Courts, 2019).

Reforms such as these are often driven by the immediate objective of improving the

predictive accuracy of initial release and detention decisions, but they are backlit by

growing concerns that pretrial detention, in many cases, serves no measurable purpose

in increasing defendant accountability to the court or in reducing re-offending. The

research resulting from these concerns has uncovered a troubling possibility: High

rates of pretrial detention may be attributable, in part, to the absence of legal counsel

at the postarrest proceedings where bail decisions are made (Boruchowitz, Brink, &

Dimino, 2009; Harvey, Rosenfeld, & Tomascak, 2018; Smith & Maddan, 2011; Smith,

Maddan, Price, & Tvedt, 2016).

Of course, the Sixth Amendment guarantees the right to counsel for those accused

of crimes that could result in an incarcerative sentence, but the law is not settled on

when that right begins.1 In recent years, justice advocates have argued that the right to

counsel should attach at the first court appearance, typically at the arraignment when

an arrestee is first informed of the charges against him or her, asked to enter a plea, and

subjected to a decision on pretrial release (on recognizance or under supervision) or

assigned bail or bond to be posted to avoid pretrial detention (The Constitution Project,

2015; Sixth Amendment Center & Pretrial Justice Institute, 2014). These advocates,

backed by the former U.S. Attorney General, Eric Holder, and the former chief judge

of the New York Court of Appeals, the Honorable Jonathan Lippman, maintained that

arraignment was a critical stage, one at which any defendant might, absent legal

advice, make damaging statements or decisions at odds with legal best interests

(Holder, 2012; Lippman, 2011). One might note, as well, that this is a critical point at

which defendants might, unknowingly, fail to share information that would reassure

judges of their reliability for appearing in court, not fleeing the jurisdiction, or refrain-

ing from actions that might produce more charges.

Why might counsel at this early stage matter, when these hearings are, in many

courts, abbreviated affairs that involve little discussion or attention to defendants’ cir-

cumstances? Advocates argue that it is at first court appearance—often immediately or

shortly after arrest—that judges make critical decisions to release on recognizance

(ROR), to set bail, or to remand defendants to jail pending later court dates. In a recent

investigation of the impact of counsel at first appearance (CAFA) programs on bail

decisions and outcomes in misdemeanor cases in these counties, we found that

although patterns varied across jurisdictions, there was some evidence that defendants

who had attorneys present at arraignment were more likely to be released on