A Fundamental Liberty Right Denied

The Pennsylvania Law Weekly
February 12, 2013

This year marks the 50th anniversary of the landmark U.S. Supreme Court decision Gideon v. Wainwright, 372 U.S. 335 (1962). In Gideon, the high court unanimously ruled that state courts are required to provide legal counsel for those defendants accused of a crime who cannot afford a lawyer.

The decision was premised on the Sixth Amendment, wherein the framers of the U.S. Constitution provided, "In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense."

Thirty years earlier, the U.S. Supreme Court decided, in Powell v. Alabama, 287 U.S. 45 (1932), that the Constitution required defendants facing the death penalty be provided access to counsel upon request.

Justice George Sutherland wrote in Powell, "Even the intelligent and educated layman has small and sometimes no skill in the science of law."

When the Gideon decision came down, it was not entirely a surprise. At the time Gideon was argued, the federal government already recognized that the Sixth Amendment required the appointment of counsel for indigent defendants facing felony charges.

In addition, 37 states provided for the appointment of counsel by statute, administrative rule or court decision. Eight states provided counsel as a matter of practice. In an unprecedented act of support for the rights of those accused of a crime, 22 state attorneys general joined Gideon in urging the court to establish an absolute constitutional right to counsel in criminal cases.

Only five states — Florida, Alabama, Mississippi, North Carolina and South Carolina — did not provide counsel for indigent defendants.

Fifty years after Gideon, the focus has evolved from merely the right to counsel to the right to effective representation. That representation has turned from ensuring a fair trial to ensuring effective assistance on matters such as plea bargaining and the collateral consequences of sentencing.

Missing from today's debate is extending the right to counsel to an accused during his or her first encounter with the courts.

Contrary to the belief that all indigent defendants are constitutionally entitled to a lawyer when their liberty is at stake, only 10 states guarantee representation at an initial court appearance to assess bail — a proceeding with fundamental liberty implications. In comparison, an equal number of states refuse to provide counsel at initial bail proceedings uniformly throughout the state, while the remaining 30 states, including Pennsylvania, assign appointed counsel in only some counties.

Most of Pennsylvania's indigent defendants are unrepresented by counsel at preliminary arraignments, the initial appearance before a judicial officer; only Philadelphia public defenders guarantee representation at the preliminary arraignment, according to Douglas L. Colbert in Prosecution Without Representation.

When counsel appears on behalf of an accused at the initial court proceeding to determine bail and offers an effective argument, the chance of a judicial officer ordering pretrial release or an affordable bail increases significantly, according to Colbert.

Colbert wrote, "A lawyer's informed and compelling advocacy often makes the difference, particularly when the charge against the accused involves no violence or injury to another."

Not only are liberty interests at stake, but in lean economic times, state and local governments can open the door to big savings by paying closer attention to bail issues.

A significant amount of local revenue goes toward corrections — the local county jail — and half of those costs can be attributed to inmates in pretrial detention. Policymakers must be ever mindful that those individuals have been arrested and accused of a crime — not convicted — and remain in jail awaiting trial.

Pretrial detention increased at the same time "get tough" policies drove prison populations through the roof. In the 10 years between 1996 and 2006, the number of people held in pretrial detention in local jails increased by more than 20 percent. According to a study by Northwestern University, fewer people were released pretrial without bail and fewer made bond.

In most states, including Pennsylvania, everyone charged with a crime other than first-degree murder is entitled to bond. The criteria considered by the court includes the nature of the offense and the likelihood of conviction; employment status; family ties; length of residence in the community; prior bail history; criminal record; and, among other criteria, the defendant's risk of flight.

The primary purpose of bail is to ensure that the defendant appears for all future court proceedings. Bail is not punitive, its purpose is administrative. Although pretrial detention is not considered punishment, defendants are given credit for the time served in detention.

Some counties will argue that providing a defendant counsel at the preliminary arraignment is too costly. Every state in the country provides at least some funding for indigent defense — every state except Pennsylvania.

Pennsylvania's Public Defender Act of 1968 provides for the establishment of a public defender in each county in Pennsylvania. It has remained an unfunded mandate for 45 years.

The public defender is appointed by the Board of County Commissioners and is funded exclusively with local funds. In fiscal year 2008, the total indigent defense expenditure statewide was approximately $95.5 million.

County commissioners could easily point the finger at the state's failure to fund any part of indigent defense and simply refuse to provide funding for initial bail hearings. Not only is finger-pointing unproductive, it blinds local policymakers to an emerging opportunity.

According to a 2011 study by the Justice Policy Institute, a close examination of initial bail hearings demonstrates that providing representation at the earliest stage of a case can actually save money.

For instance, a low-risk defendant charged with a nonviolent offense appears without counsel at his preliminary arraignment. The court sets a $2,500 bond. The defendant is indigent and cannot post the bond. His preliminary hearing is scheduled 10 days out and is continued once for a week. At the preliminary hearing, the defendant's county-funded public defender immediately requests an ROR bond, which is granted.

The defendant sat in jail for 17 days at a conservative $65 a day. The lack of early counsel costs taxpayers about $1,105. With nearly four out of five defendants eligible for court-appointed counsel, preventing that scenario from repeating itself 100 or 200 times during the course of a year could save a county close to $250,000.

It would be disingenuous not to acknowledge that there are fixed costs in operating a jail or prison and that the initial savings may not be as simple as suggested. However, this issue is about more than finances.

Early representation is about liberty and, as Colbert put it, "Timely legal representation reinforces the long cherished principle of equal justice and presumption of innocence."

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