What Difference Does a Lawyer Make? Impacts of Early Counsel on Misdemeanor Bail Decisions and Outcomes in Rural and Small Town Courts
| Date | 01 July 2018 |
| Author | Andrew L. B. Davies,Kirstin A. Morgan,Alissa Pollitz Worden,Reveka V. Shteynberg |
| Published date | 01 July 2018 |
| DOI | 10.1177/0887403417726133 |
| Subject Matter | Articles |
research-article2018
Article
Criminal Justice Policy Review
2018, Vol. 29(6-7) 710 –735
What Difference Does a
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https://doi.org/10.1177/0887403417726133
DOI: 10.1177/0887403417726133
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of Early Counsel on
Misdemeanor Bail Decisions
and Outcomes in Rural and
Small Town Courts
Alissa Pollitz Worden1, Kirstin A. Morgan2,
Reveka V. Shteynberg1, and Andrew L. B. Davies3
Abstract
Recent court decisions and state legislation have highlighted the significance of ensuring
that criminal defendants are represented by counsel at their first appearances in court,
where judges make critical decisions on pretrial release, bail, and detention. Yet many
jurisdictions do not routinely provide counsel to indigent defendants at this stage.
We hypothesize that when defendants are represented by counsel at first appearance
(CAFA), they are more likely to be released on recognizance, are less likely to have
high bail set, and are consequently less likely to be jailed pending disposition. We
explore the impact of lawyers’ presence by comparing pretrial decisions and bail
outcomes across samples of misdemeanor cases in three rural counties in upstate
New York: cases with and without CAFA. We find that these counties saw shifts
in decisions or outcomes. We consider the implications of these findings for future
research, court practices, and public policy.
Keywords
courts, criminal justice policy, criminal court, justice, program evaluation, bail decisions,
misdemeanors, rural courts
1University at Albany, State University of New York, Albany, NY, USA
2Appalachian State University, Boone, NC, USA
3NYS Office of Indigent Legal Services, Albany, NY, USA
Corresponding Author:
Alissa Pollitz Worden, University at Albany, State University of New York, 135 Western Avenue, Albany,
NY 12222, USA.
Email: aworden@albany.edu
Worden et al.
711
Introduction
In 2012, addressing the American Bar Association, Attorney General Eric Holder
(2012) said, “Too many defendants are left to languish in jail for weeks, or even
months, before counsel is appointed.” His declaration highlighted a long-standing
concern among policy makers, court officials, and scholars: the lack of legal represen-
tation at early and potentially critical stages of criminal adjudication. Investigations of
the impact of pretrial decisions on case outcomes suggest that decisions on setting bail
and the terms of pretrial release may have collateral consequences for defendants’
employment and families, as well as implications for case outcomes and sentences.
Furthermore, there is some evidence that judges’ decisions are influenced by prosecu-
tors’ recommendations, particularly in the absence of defense counsel. And yet the
absence of counsel at first appearance (CAFA) remains the norm rather than the excep-
tion in many courts.
We investigate the impact of three counties’ initiatives to provide CAFA: Our
inquiry is organized within three parameters. First, we examine the caseloads of indi-
gent defense providers, whose clients are least likely to have representation at first
appearance.1 Second, we evaluate decisions made in low-level cases, misdemeanors,
and violations. These cases are much more numerous than felonies, yet have been the
subject of far less research despite growing evidence that many defendants, engaged
even at this level with the justice system, face long-term consequences from pretrial
detention and conviction. Third, we focus on communities in which the provision of
CAFA is most challenging: rural and small-town courts that have limited staff,
resources, and flexibility, and whose constituencies and courts are scattered across
broad geographic areas.
Contextualizing Pretrial Decisions and the Role of
Counsel
Bail Practices, Policies, and Consequences
The custom of requiring financial securities as a condition of pretrial release predated
the Norman Conquest in medieval England (Schnacke, Jones, & Brooker, 2010). By
the time European emigrants were importing British bail practices into North American
colonies, common law had incorporated the concepts of habeas corpus and excessive
bail into their new courts (see Carpenter, 1902; Duker, 1977; Schnacke, 2014). By the
1800s, criminal courts in the states had effectively codified bail practices to ensure the
right to bail to most defendants (Carbone, 1983), and the ostensible justification for
bail was ensuring their presence at future court appearances. Following the federal
Bail Reform Act of 1966, many states adopted laws that made release (on recogni-
zance and under supervision) the default in noncapital cases. In subsequent decades,
however, increases in crime rates and public concern about crime resulted in the fed-
eral Bail Reform Act of 1984 as well as a proliferation state laws that incorporated
consideration of public safety into bail justifications.2
712
Criminal Justice Policy Review 29(6-7)
The discretion inherent in the bail decision, as well as the general model of mone-
tary bail, has been the subject of debate for over 50 years (Foote, 1965). Goldfarb
(1965) noted that where bondsmen are primary providers of sureties, their discretion
may replace that of judges in determining who is or is not released (see also Pannell v.
U.S., 1963). Goldkamp and Gottfredson were among the first to argue, in 1979, that
indigent defendants in particular were disadvantaged by money bail systems, a con-
cern echoed recently by the U.S. Department of Justice (DOJ) in two recent cases
concerning these matters (Statement of Interest of the United States in Varden v. City
of Clanton, 2015; amicus curiae brief supporting plaintiff in Walker v. City of Calhoun,
2016). In both of these cases, the U.S. DOJ asserted that “[i]ncarcerating individuals
solely because of their inability to pay for their release, whether through the payment
of fines, fees, or a cash bond, violates the Equal Protection Clause of the Fourteenth
Amendment” (Statement of Interest of the United States in Varden v. City of Clanton,
2015, p. 1). In the next sections, we review research that attempts to account for varia-
tion in bail decisions, and that documents the consequences of those decisions for
defendants.
Correlates and Consequences of Bail Decisions
Most empirical studies of bail decisions (both the decision to set bail, and how much
bail to require) reveal that the seriousness of charges is correlated with decisions
(Frazier, Bock, & Henretta, 1980; Goldkamp & Gottfredson, 1979; Gottfredson &
Gottfredson, 1990; Holmes, Hosch, Daudistel, Perez, & Graves, 1996; Phillips, 2004
see Devers, 2011). There is also evidence that prior record is associated with these
outcomes (Sacks, Sainato, & Ackerman, 2015). In New York, as in many other states,
these two factors are legitimate grounds for bail decisions (NY CPL 530.20).
Furthermore, it appears that judges take into account employment, an indicator of
community ties (Bridges, Crutchfield, & Simpson, 1987; Lizotte, 1978; Maxwell,
1999). Some studies have found that women get slightly more favorable bail decisions
than do men (e.g., Turner & Johnson, 2006), which may be due less to judges’ gender
biases than to the fact that many arrested women are caregivers to small children (see
Free, 2002). But research has also uncovered evidence that in some courts, these deci-
sions reflect disparities based on race (e.g., Ayres & Waldfogel, 1994; Free, 2002;
Johnson & Johnson, 2012; Patterson & Lynch, 1991; Sacks et al., 2015; Turner &
Johnson, 2005; but see Katz & Spohn, 1995) and ethnicity (Ayres & Waldfogel, 1994;
Demuth, 2003; Free, 2002; Jones, 2013, pp. 938-945; Turner & Johnson, 2005).
Finally, judges may be guided by their own proclivities as well as those of other
court actors. Judges often follow prosecutors’ recommendations (Dhami, 2002;
Ebbesen & Konecni, 1975; Phillips, 2004; Varma, 2002). Researchers have also
observed that they may be influenced by defense lawyers (and their professional con-
texts). Notwithstanding stereotypes of burned out, overworked, and even incompetent
public defenders, there is some evidence that, compared with privately retained coun-
sel, they secure better bail outcomes for their clients (Sacks et al., 2015; Turner &
Johnson, 2006; Williams, 2014). Current movement to ensure counsel’s presence at
Worden et al.
713
first appearance is in part justified by the perceived need to balance prosecutorial
influence in an adversarial hearing.
How many defendants are released, bailed, or remanded? Reports vary widely
across charge types and jurisdictions. Devers (2011) summarizes research on federal
(Harrison & Beck, 2006) and state (VanNostrand & Keebler, 2007) courts that reported
detention rates of approximately 60% in federal courts, and up to 40% in state court
systems. Research in New York City found that judges set bail in 25% of misdemeanor
cases (that are not disposed at arraignment), and that 72% of bails were set at US$1000
or less (Human Rights Watch, 2010).
How do pretrial decisions affect defendants? Some studies report that inability to
secure release or make bail is associated with higher rates of guilty pleas (The Bronx
Freedom Fund, 2016; Cohen & Reaves, 2007; Didwania, 2017; Foote, 1965; Heaton,
Mayson, & Stevenson, 2017). This may result from...
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