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Few Indigent Defendants Have Lawyer at Arraignment

by Mark Wilson

"Giving defendants a lawyer, treating them with respect, and honoring the Constitution give them more confidence in what we’re trying to do,” observes Michigan District Court Judge Tom Boyd. “That starts with giving them the respect they deserve the minute they walk in the door.”

Sadly, that “respect” is rarely granted until after a criminal defendant’s first court appearance, which is too late for many defendants who plead guilty simply because they don’t know any better, or languish for months in jail because they cannot afford to post bail.

The Sixth Amendment guarantees criminal defendants the right to counsel. As a result of U.S. Supreme Court decisions in Gideon v. Wainwright, 372 U.S. 335 (1963), and Argersinger v. Hamlin, 407 U.S. 25 (1971), it is well-established that defendants in criminal proceedings who are at-risk of imprisonment if convicted have a constitutional right to legal representation. However, the Supreme Court never definitively determined exactly when that right is triggered prior to trial. As a result, states decide whether or not to provide a lawyer at the first court appearance for those defendants who cannot afford to hire one.

According to a 2009 survey, just 10 states provided court-appointed counsel before arraignment,10 states did not, and the remaining states employed varying practices in different jurisdictions. Until recently, Michigan was one of the many states that did not appoint counsel until after arraignment. Defendants who could not afford to retain counsel were unrepresented at arraignment. In 2015, approximately 75 percent of defendants were arraigned without counsel, and half of the people who pleaded guilty at arraignment did so without legal representation.

But not having a lawyer at arraignment can have serious consequences for defendants. Judge Boyd recounted an example early from his career that is representative of the problem. A young man he believed was innocent pleaded guilty at arraignment; he did not have a lawyer. “I asked him why he wanted to plead guilty,” Judge Boyd recalled. “He said, ‘Well, isn’t that how it works? You get arrested, you plead guilty, you get probation, and you move on.’” If he’d had a lawyer to explain his options and the strength of the state’s case against him, he may have made a different choice and avoided a criminal record.

“I didn’t have an ‘aha’ moment. I had dozens,” Judge Boyd explained. Now in his twelfth year on the bench, he is “100 percent” convinced that attorneys should be appointed before arraignment. “Maybe I should have figured this out a long time ago,” he lamented.

The judge is far from alone in his assessment. Arraignment is “incredibly critical,” stated Zoe Root, senior policy counsel at American University’s Justice Programs Office. “It’s the moment where the stage is set.” Unrepresented defendants “may automatically plead guilty to avoid not only a trial process, but also pretrial incarceration. Of those who plead not guilty, most don’t know what information could convince a judge to release them on their own recognizance,” Root explained. Data show that more than 20 percent of defendants who are jailed prior to trial are held because they cannot pay $3,000 or less in bail.

The American Bar Association (“ABA”) is in agreement with Judge Boyd and Root’s position. “Counsel should be made available in person to a criminally accused person for consultation at or before any appearance before a judicial officer, including the first appearance,” ABA standards declare.

Michigan is taking steps to address this issue. “We’re solving a problem that we’ve had in Michigan for far too long,” declared Governor Rick Snyder. During a recent pilot project in which counsel was appointed for all arraignments in Judge Boyd’s county, 13 percent of the cases scheduled for arraignment were dropped before the hearings even took place because defense attorneys and prosecutors resolved matters out of court. In addition, the average case length fell by 20 percent, from approximately 32 days to around 26 days.

In May 2017, the Michigan indigent defense commission appointed by Governor Snyder in 2013 revised its legal representation standards to make counsel mandatory at arraignment. Of course, additional lawyers will require additional legislative funding, admits commission executive director Jonathan Sacks. It remains to be seen if the Michigan Legislature will fund the reforms in 2018. Regardless, it is a positive development, and one that hopefully other states will follow. 


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