Counsel at First Appearance (CAFA)

The Access to Justice Lab

at Harvard Law School

Counsel at First Appearance (CAFA)

Research:

Despite the potential for pretrial incarceration, most states do not supply an attorney to advocate for a defendant’s release at this “first appearance.”[1]  There is a presumption of innocence pretrial, and that presumption requires special circumstances for detention. Yet, without the assistance of counsel, defendants are ill-equipped to challenge the prospect of their own detention.[2] Thus, when considered alongside the idea that the first appearance amounts to a “trial-like confrontation,”[3] a growing chorus of legal scholarship contends that the first appearance is crucial to the integrity of an individual’s defense.[4]  While the United States Supreme Court has not yet recognized a constitutional right to CAFA, specifically,[5]  there is a growing sentiment that such counsel should be considered among Sixth Amendment guarantees. Following Gideon v. Wainwright[6] and its progeny indicating, inter alia, that the right to counsel extends to criminal proceedings in which a defendant faces a loss of freedom,[7] legal scholars argue that the potential for pre-trial detention is just such a loss of freedom. The theory runs that there is a risk of pre-trial detention, a loss of freedom, at the first appearance and thus this confrontation fits squarely within the directive of Gideon and Argersinger.  Although systematic, rigorous analysis of the effects of CAFA is rare, some evidence regarding these programs exists.[8]  While these extant studies are valuable, there is little causal evidence regarding the effects of CAFA.

What We’ll Learn:

Drawing on the existing research, this evaluation examines the effect of CAFA on bail and pretrial release decisions and failure to appear rates.  Secondary outcomes include impacts on dispositions and recidivism.  The presence of counsel is randomized by day with the offer of counsel provided to all defendants experiencing their first appearance hearing on days in which counsel is present and no such offer on days in which counsel is not present.

Research Team:

The A2J Lab partners with the Public Policy Research Institute at Texas A&M University to conduct the evaluation which occurs in two jurisdictions in Texas.

[1] Lauren Sudeall Lucas, Public Defense Litigation: An Overview, 51 Ind. L. Rev. 89 (2018); Douglas L Colbert, The Maryland Access to Justice Story: Indigent Defendants’ Right to Counsel at First Appearance, 15 U. Md. L.J. Race, Religion, Gender & Class (2105): 1. 21-22 notes that funding of indigent defense is an appropriation of either a state-based or local government, originating in the legislative branch when setting budget allocations.  It is no coincidence that the bail bondsmen industry has a strong lobby to safeguard the often 10% fee payable on every bond, a sum that more often than not affects individuals with no funding or collateral to support payment of a full bond (those who are indigent) and thus also cannot afford their own attorney.  By underfunding indigent defense systems, legislatures are sanctioning the use of a predatory bond industry and forcing indigent defense systems to choose when to allocate scarce resources. 

[2] Alissa Pollitz Worden, Kirstin Morgan, Reveka Shteynberg, & Andrew Davies, Guaranteeing Representation at First Court Appearances may be Better for Defendants, and Cheaper for Local Governments, American Politics and Policy Blog (August 28, 2018).

[3] United States v. Ash, 413 U.S. 300 (1973).

[4] Bunin, Alexander. 2016. The Constitutional Right to Counsel at Bail Hearings, Crim. Just., 31(1), 23-26.

[5] via Rothgery v. Gillespie County, Texas, 554 U.S. 191 (2008).

[6] 372 U.S. 335 (1963).

[7] See, Argersinger v. Hamlin, 407 U.S. 25 (1972).

[8] See, Ernest J. Fazio, et. al., Early Representation by Defense Counsel Field Test: A Successful Demonstration, Final Evaluation Report, National Institute of Justice Report (1985); Douglas Colbert, Raymond Paternoster & Shawn Bushway, Do Attorneys Really Matter?  The Empirical and Legal Case for the Right of Counsel at Bail, Faculty Scholarship (2002); Worden, Alissa Pollitz, Kirstin A. Morgan, Reveka V. Shteynberg, and Andrew LB Davies. What Difference Does a Lawyer Make? Impacts of Early Counsel on Misdemeanor Bail Decisions and Outcomes in Rural and Small Town Courts, Crim. Just. Pol’y Rev. (2018), https://doi.org/10.1177%2F0887403417726133.

Using empirical research to make the U.S. justice system work better for everyone.

Research: Despite the potential for pretrial incarceration, most states do not supply an attorney to advocate for a defendant’s release at this “first appearance.” There is a presumption of innocence pretrial, and that presumption requires special circumstances for detention. Yet, without the assistance of counsel, defendants are ill-equipped to challenge the prospect of their own detention. Thus, when considered alongside the idea that the first appearance amounts to a “trial-like confrontation,” a growing chorus of legal scholarship contends that the first appearance is crucial to the integrity of an individual’s defense. While the United States Supreme Court has not yet recognized a constitutional right to CAFA, specifically, there is a growing sentiment that such counsel should be considered among Sixth Amendment guarantees. Following Gideon v. Wainwright and its progeny indicating, inter alia, that the right to counsel extends to criminal proceedings in which a defendant faces a loss of freedom, legal scholars argue that the potential for pre-trial detention is just such a loss of freedom. The theory runs that there is a risk of pre-trial detention, a loss of freedom, at the first appearance and thus this confrontation fits squarely within the directive of Gideon and Argersinger. Although systematic, rigorous analysis of the effects of CAFA is rare, some evidence regarding these programs exists. While these extant studies are valuable, there is little causal evidence regarding the effects of CAFA. What We’ll Learn: Drawing on the existing research, this evaluation examines the effect of CAFA on bail and pretrial release decisions and failure to appear rates. Secondary outcomes include impacts on dispositions and recidivism. The presence of counsel is randomized by day with the offer of counsel provided to all defendants experiencing their first appearance hearing on days in which counsel is present and no such offer on days in which counsel is not present. Research Team: The A2J Lab partners with the Public Policy Research Institute at Texas A&M University to conduct the evaluation which occurs in two jurisdictions in Texas.