Do Attorneys Really Matter? The Empirical and Legal Case for the Right of Counsel at Bail

Posted: 4 Apr 2003

See all articles by Douglas Colbert

Douglas Colbert

University of Maryland Francis King Carey School of Law

Ray Paternoster

University of Maryland - Department of Criminology & Criminal Justice

Shawn D. Bushway

University at Albany; RAND Corporation

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Abstract

The United States Supreme Court has never ruled upon whether the constitutional right to counsel extends to the bail stage. Indeed in the vast majority of state and local criminal justice systems, indigent defendants appear alone and without legal representation when first appearing before a judicial officer following arrest. Without counsel, many poor and lower income people charged with non-violent misdemeanor charges remain in jail on unaffordable bail for days, weeks and months before returning to court and being assigned appointed counsel.

While it is rare to find lawyers representing indigent defendants in state court, this article provides empirical evidence that counsel's advocacy is the crucial difference whether indigent defendants regain liberty when charged with non-violent crimes or spend lengthy periods in pretrial incarceration awaiting trial. The study's empirical data lends support for understanding that bail should be considered a critical stage of a criminal proceeding, which requires states to provide counsel to indigent defendants.

The authors - a law professor, a criminologist, and an economist - analyzed an eighteen-month representation project which provided counsel to indigent defendants at Baltimore City bail hearings. Comparing two groups of randomly selected defendants charged with similar non-violent offenses and having comparable backgrounds, they report that two and one half times as many represented defendants were released on recognizance than unrepresented defendants. The authors also conclude that a lawyer's advocacy resulted in more than twice as many represented defendants having their bail reduced to affordable amounts. The Study found other important benefits of early representation at the bail stage. Judicial officers make better informed pretrial release decisions, prosecutors obtain earlier dispositions, and correction officials witnessed a decline in pretrial jail overcrowding. Finally, the Study revealed that detainees believed they were treated more fairly and were more willing to accept the legitimacy of the judicial process.

The article concludes by providing a series of legislative and litigation strategies for reforming current practices and ensuring that indigent defendants no longer stand alone when first appearing in court for a pretrial release determination.

Suggested Citation

Colbert, Douglas L. and Paternoster, Ray and Bushway, Shawn D., Do Attorneys Really Matter? The Empirical and Legal Case for the Right of Counsel at Bail. Available at SSRN: https://ssrn.com/abstract=387802

Douglas L. Colbert (Contact Author)

University of Maryland Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
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410-706-0683 (Phone)
410-706-5856 (Fax)

Ray Paternoster

University of Maryland - Department of Criminology & Criminal Justice ( email )

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College Park, MD 20742
United States
301-405-4724 (Phone)
301-405-4733 (Fax)

Shawn D. Bushway

University at Albany ( email )

324 Milne Hall
Albany, NY 12222
United States

RAND Corporation ( email )

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P.O. Box 2138
Santa Monica, CA 90407-2138
United States

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