In Austin, a Lawyer is a Luxury
A lot of people are surprised to hear they may not get a lawyer at their first bail hearing: “Don’t I have a right to an attorney?”
You should – that’s what the ACLU has argued in court in , , Oklahoma, Oregon, , and Utah. But half of U.S. states do not guarantee counsel at first appearance. In these states, first appearance is typically a rushed proceeding where magistrates (limited-purpose judges) rubber-stamp detention orders without entertaining arguments to let people out of jail. This “hearing” often takes place inside the jail with no means of public access. Without defenders present to fight on behalf of arrestees, and without the check of public accountability, the gross unfairness resulting from the lack of counsel can be lost on even the most well-meaning public officials.
Our most recent investigation in , documents what we commonly observe when we scratch the surface of these lawyer-less bail hearings. The ACLU of Texas organized volunteer law students to observe hundreds of first appearances in the first quarter of 2024. The results, digested by the ACLU’s data and analytics team, support our most recent lawsuit on counsel at first appearance and demonstrate why counsel at first appearance is so important. Here is what we found:
Travis County Sued Over Denying Right to Legal Counsel
Source: American Civil Liberties Union
Judges are punting on release.
Magistrates order detention but tell arrestees that down the line, a lawyer might make a persuasive argument for release. This practice effectively punts the real release decision until after a lawyer is appointed and the case is assigned to the trial judge – jailing the arrestee in the meantime. The numbers bear this out: we observed magistrates require cash bail at significantly higher rates than Travis County claims over the total duration of criminal cases. Our observation confirms what magistrates are owning up to from the start: after lawyers are appointed, the lawyer’s advocacy secures release without cash bail and gets more people out. The days that people wait in jail for their lawyer matter. Beside the fact that any time jail is inherently harmful, people lose their jobs and can’t be home to take care of their families. And even a few days in jail without a lawyer increases the chances that people plead guilty and accept harsher sentences, because they’re fighting their cases on an uneven playing field.
Betschart v. State of Oregon Amicus Brief
Source: American Civil Liberties Union
People are at high risk of self-incrimination.
It’s natural for people to try to argue for their release: 29 percent of arrestees we observed made potentially harmful statements about their cases. People without legal training can’t realistically make a strategic choice about waiving the right to silence or deciding what to say. Even statements that are not outright confessions can limit strategies for the defense. It’s impossible to know from court observation alone how harmful these statements are in the scheme of each person’s criminal defense. But the harm of some statements, including those documented in our subsequent lawsuit, is painfully obvious:
- It happened a long time ago
- I have no choice but to be in that area (site of alleged trespass)
- Oh . . . well, I guess it was a crime
- If I could do it all over again, I would
Dawn H. Medina v. The Hon. Ann Marie McIff Allen Amicus Brief
Source: American Civil Liberties Union
Video appearances are inadequate and prone to abuse.
In the absence of counsel at first appearance, court and jail personnel begin to regard first appearance as an empty formality rather than a meaningful hearing on release. First appearances conducted by video reinforce this dynamic: magistrates see arrestees as images on a screen, rather than human beings whose freedom is on the line. In Travis County, we documented communication problems resulting from video feeds in 10 percent of first appearances. Respect for the purpose of first appearance had eroded so dramatically that magistrates conducted the hearing through a camera pointed at the meal tray slot on cell doors, forcing arrestees to communicate by bending over to talk through the narrow slot. When the magistrate and arrestee could not communicate, the magistrate relied on jail staff to relay what the arrestee was saying and whether it appeared they could hear. Follow-up reporting by the documented additional instances of this practice, leading a retired federal judge to comment on the importance of counsel at first appearance.
Many officials – even in progressive Austin, Texas – try to convince themselves that counsel at first appearance is a luxury rather than a necessity. These findings show the need for counsel at first appearance.
Learn More About the Issues on This Page
-
Press ReleaseDec 2024
Prisoners' Rights
Criminal Law Reform
ACLU Sues Bureau of Prisons for Keeping People in Prison Longer Than the Law AllowsACLU Sues Bureau of Prisons for Keeping People in Prison Longer Than the Law Allows
WASHINGTON – A federal lawsuit brought today by the American Civil Liberties Union, ACLU of D.C., and Jenner & Block LLP challenges the Federal Bureau of Prisons (BOP) for unlawfully incarcerating people longer than the law allows under the First Step Act. The lawsuit contends that the BOP’s failure to implement the First Step Act according to its plain language violates the rights of thousands of people who should be returning to their communities and rebuilding their lives but instead remain incarcerated. Signed into law in 2018 by then-President Donald Trump, the bipartisan First Step Act was designed to reduce the population in federal prisons, reform extreme sentencing laws, and provide programming and reentry transition services to people in prison. Central to the First Step Act is a system of earned time credits, which allows people in prison to earn time off their sentences and time out of prison by participating in rehabilitation programs. Through the First Step Act, Congress unambiguously ordered BOP to move people out of prison when they meet certain requirements to use their earned time credits. Instead of faithfully following the mandatory law, BOP adopted a regulation treating the law as optional. As a result, thousands of people, who should already be back in their communities and with their families, remain in prison. “Every extra unlawful day our clients spend in prison is a serious injustice,” said Emma Andersson, deputy director of the Criminal Law Reform Project at the ACLU. “It is egregious that the Bureau of Prisons is imprisoning people for months longer than the law allows. The government must follow through on its legal obligation to get people out of prison on time and back into their communities, where they belong.” Additional comments below from: Vanessa Crowe, plaintiff: “Time is what I owed for my wrongdoing, and I have paid my time. But I should not have to spend more time in prison than the law allows. I often reflect on what I will miss during the months after when I should be out of prison. I will miss work and lose out on wages that would help me get back on my feet. I could be a tax paying citizen instead of a burden on society. But most of all, I will miss more precious time with my family. My family and I are ready to tum the page on this period in our lives — we are all ready to start a new life, a life with purpose, hope, and healing together. I want to start that life when I am legally entitled to start it-not five months later.” Arthur Spitzer, senior counsel at ACLU of D.C.: “There’s no excuse for the Bureau of Prisons to pretend not to understand Congress’s clear command that people who have earned the right to early release must be released. This law has been on the books for six years. The Bureau of Prisons has had plenty of time to understand it. Law enforcers should obey the law.” Betsy Henthorne, partner at Jenner & Block: “It has been six years since the First Step Act was signed, but despite Congress’s clear directives, the Bureau of Prisons continues to hold thousands of people in prison longer than the law allows. We should and do expect better—it’s past time for the BOP to ensure that those who have earned their release are able to return home to their families and communities according to the law Congress passed.” -
Maryland Supreme CourtDec 2024
Criminal Law Reform
Roland Branch v. State of MarylandRoland Branch v. State of Maryland
This petition to the Supreme Court of Maryland asked the court to reconsider its adherence to Whren v. U.S., 517 U.S. 806 (1996), which declared that a traffic stop undertaken for pretextual reasons does not violate the Fourth Amendment to the U.S. Constitution so long as the police have probable cause to believe that a traffic violation occurred. The ACLU, alongside the ACLU of Maryland, filed an amicus brief in support of the defendant’s petition, in which the ACLU argued that the court should take up the question of whether pretextual stops violate the Maryland Constitution. In September 2024, the Court denied the petition. -
North Carolina Supreme CourtDec 2024
Criminal Law Reform
State v. WrightState v. Wright
This case in the North Carolina Supreme Court involves the question of whether the police violated the U.S. Constitution when they searched the defendant, Mr. Wright’s, backpack even after he repeatedly said no to the search requests. The ACLU alongside the ACLU of North Carolina filed an amicus brief arguing that the search was unconstitutional because Mr. Wright’s eventual “consent” was the result of police coercion. Our brief urges the court to consider the totality of the circumstances that make one more susceptible to coercion, including race and poverty. -
News & CommentaryDec 2024
Criminal Law Reform
Disability Rights
Incarceration Should Not be a Death Sentence for Individuals Who Use OpioidsIncarceration Should Not be a Death Sentence for Individuals Who Use Opioids
New litigation centered on increasing access to substance-use disorder treatment in jails and prisons is helping to reduce mortality rates among incarcerated individuals.