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

AuthorKirstin A. Morgan,Alissa Pollitz Worden,Andrew L. B. Davies,Reveka V. Shteynberg
Published date01 July 2020
Date01 July 2020
Subject MatterArticles
Criminal Justice Policy Review
2020, Vol. 31(6) 833 –856
© The Author(s) 2019
Article reuse guidelines:
DOI: 10.1177/0887403419873018
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
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.
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.
873018CJPXXX10.1177/0887403419873018Criminal Justice Policy ReviewWorden et al.
834 Criminal Justice Policy Review 31(6)
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

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