Beyond the Visiting Room: A Defense Counsel Challenge to Conditions in Pretrial Confinement

39 Pages Posted: 7 May 2018 Last revised: 25 Sep 2020

Date Written: September 16, 2015

Abstract

Defense attorneys are well acquainted with the harmful conditions of confinement experienced by individuals locked up in local jails. The conditions of pretrial confinement are a state-created barrier to individuals' access to effective assistance of counsel. Common conditions of pretrial confinement include inadequate medical care, violence from corrections staff, lack of mental health care, lack of protection from the violence of others, and the punitive use of isolation. The trauma from these conditions impairs cognitive abilities, creates obstacles to communicating with others, and difficulty reasoning through legal strategy with counsel. Mistreatment in pretrial detention affect the emotional and mental health and cognitive abilities of people, just as they are asked to make momentous decisions in their lives. By continuing to hold people in jail pretrial, where these traumatic impacts are in endemic, the state interferes with the ability to effectively access assistance of counsel.

Attorneys rarely address abuse in detention as integral to a criminal case, despite the impact of jail conditions on the ability to defend oneself. The article explores the effects of solitary confinement, one of the most extreme forms of mistreatment in U.S. jails, its effect on people awaiting trial, and how isolation and other abuses in jail impact the ability of those detained to work with counsel in defense of their criminal charges. It outlines potential defense counsel challenges to conditions of pretrial confinement. The article argues that these challenges are properly in the arena of defense counsel's responsibilities.

Keywords: pretrial detention, sixth amendment, bail, public defense, assistance of counsel

Suggested Citation

Baylor, Amber, Beyond the Visiting Room: A Defense Counsel Challenge to Conditions in Pretrial Confinement (September 16, 2015). Cardozo Public Law, Policy and Ethics Journal, Vol. 14, No. 1, 2015, Available at SSRN: https://ssrn.com/abstract=3163853

Amber Baylor (Contact Author)

Columbia Law School ( email )

435 West 116th St
NEW YORK, NY 10027

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