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.” 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.