Access to Counsel for Defendants in Lower Criminal Courts

Forthcoming in Justice System Journal Available at https://doi.org/10.1080/0098261X.2021.1927267

SMU Dedman School of Law Legal Studies Research Paper No. 522

Posted: 15 Sep 2021

See all articles by Alyssa Clark

Alyssa Clark

Independent

Andrew Davies

Southern Methodist University - Dedman School of Law

Karise M. Curtis

affiliation not provided to SSRN

Date Written: September 15, 2021

Abstract

Criminal defendants unable to afford an attorney are entitled to one for free in the United States, but how and when they obtain access to that lawyer is another question. We examine judicial attitudes and behavior in granting access to counsel in areas where logistics are particularly forbidding. Based on survey responses from 1,091 magistrate judges presiding in lower criminal courts in suburban and rural jurisdictions in upstate New York, we describe both the procedures used to determine defendants’ financial eligibility for free counsel, and the logistical challenges that surround securing the physical presence of a lawyer at the first appearance in court. We find that judges strongly favor counsel’s presence in order to maintain courtroom efficiency, and sometimes depart from strict interpretation of financial eligibility guidelines to ensure representation. We introduce the concept of the “procedurally precautious judge” to describe the way these respondents carefully preserve the appearance of integrity in court operations even while availability of counsel for defendants is limited.

Keywords: Access to counsel, indigent defense, lower criminal courts, judicial decision-making

Suggested Citation

Clark, Alyssa and Davies, Andrew and Curtis, Karise M., Access to Counsel for Defendants in Lower Criminal Courts (September 15, 2021). Forthcoming in Justice System Journal Available at https://doi.org/10.1080/0098261X.2021.1927267, SMU Dedman School of Law Legal Studies Research Paper No. 522, Available at SSRN: https://ssrn.com/abstract=3924467

Alyssa Clark

Independent

Andrew Davies (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States

Karise M. Curtis

affiliation not provided to SSRN

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