Thirty-Five Years After Gideon: The Illusory Right to Counsel at Bail Proceedings
1998 U. Ill. L. Rev. 1
... Sixty-six years ago in Powell v. Alabama, the Supreme Court declared that the pretrial stage from arraignment until trial was "the most critical period" for investigating criminal charges, preparing a defense, and consulting with an attorney. ... Throughout the United States, indigent defendants should not expect legal representation when they first appear for bail before a judicial officer. ... In nineteen states, the accused is unrepresented when a judicial officer first decides whether to order pretrial release or set bail. ... A judicial officer's decision to set high bail will ensure that indigent defendants remain in jail while charges are pending. ... Second, like representation beginning at the preliminary hearing, representation commencing at the bail hearing allows for an immediate opportunity to conduct a thorough investigation in a manner which serves the same general purpose: to evaluate witnesses' credibility and assess the strength of the state's case. ... Without legal representation at bail, far too many people languish in jail throughout pretrial proceedings. ... When a client is incarcerated for days, or weeks, before meeting with his lawyer, the conscientious public defender is hard pressed to provide competent representation. ... Ethical reminders aside, prosecutors have a practical reason for opposing long adjournments for incarcerated defendants and supporting counsel's representation at bail: it would free limited jail space for those who require pretrial detention and permit their limited resources to be devoted to more serious cases. ...
