ENHANCING DUE PROCESS AT INITIAL APPEARANCES

Every year, over 10 million individuals experience a jail booking and must appear in court, usually within 24 to 72 hours, for a formal arraignment. During this initial appearance, the court informs the individual of the charges against them and the individual can enter a plea. Most jurisdictions also make decisions about pretrial release at this arraignment hearing.

Securing pretrial release possible at initial appearance oftentimes requires representation by an attorney. While the sixth amendment constitutionally guarantees the right to counsel for all individuals facing criminal charges at critical stages of their case processing, the US Supreme Court does not recognize initial appearances as a critical stage of prosecution. As a result, for individuals booked across 50% of US jails, their local jurisdiction does not provide indigent defense at this stage. 

Across three MacArthur Foundation Safety and Justice Challenge sites—Cook County, Illinois; Multnomah County, Oregon, and; Lucas County, Ohio—local defense agencies do appear at initial appearance and have led programs which systematically enhance due process for individuals at initial appearances. They have provided access to defense attorneys nearly immediately after jail booking, collected more information about the person prior to their initial appearance, and provided representation at initial appearances. By doing so, defense attorneys can make more informed and convincing release arguments to secure the fastest, least expensive, least restrictive pretrial release possible.

This research unpacks how these defense attorney-led strategies operate in their sites, how the new strategy has led to the least restrictive pretrial release possible, and details how this new approach reduces racial/ethnic disparities among individuals who secure pretrial release. Importantly, this research details how the new strategies enhance due process and limit the punishing and harmful effects of pretrial detention.