Criminal Justice Section  


Criminal Justice Magazine
Fall 2003
Volume 18 Number 3

Courts "Bail Out" on Gideon

Detainees Face Hearings Alone

By Douglas Colbert

Douglas Colbert is a law professor at the University of Maryland School of Law in Baltimore.

Like most people accused of committing a crime, Clarence Earl Gideon needed a lawyer. Having spent many months in jail while awaiting trial on burglary charges involving the unlawful entry into a pool hall and the theft of change from a cigarette machine, Gideon knew he had little chance of defending his freedom alone. He needed a skilled and well-prepared attorney, one versed in courtroom advocacy and at ease when speaking to a judge and jury.

Yet the law in the early 1960s was clear. Poor people were not entitled to counsel. They were expected to act as their own trial lawyer when facing an experienced felony prosecutor and trial judge.

Gideon’s courageous legal battle eventually succeeded in reversing nearly 175 years in which judicial interpretation had made the Sixth Amendment guarantee to a lawyer irrelevant to poor people. In Gideon v. Wainwright, 372 U.S. 335 (1963), the U.S. Supreme Court Justices unanimously agreed that an accused "requires the guiding hand of counsel at every step in the proceedings. Lawyers," they declared, "are necessities, not luxuries . . . [for] ensur[ing] fair process and just outcome." ( Id. at 344.) Ruling that the State of Florida and every other state is required to provide counsel at a felony trial, the Court overturned Gideon’s sham conviction. At retrial, Gideon’s court-appointed lawyer convinced a jury to return a verdict of acquittal.

Today’s indigent defendants owe much to Gideon’s determination. In state courtrooms nationwide, the accused is now entitled to an assigned counsel at "critical" pretrial stages, such as arraignments and preliminary hearings, as well as at misdemeanor and felony trials. Not every defendant, of course, receives competent representation—high caseloads, minimal resources, and low compensation make it difficult for assigned counsel to fulfill their professional duty—but despite this reality, counsel’s presence and advocacy usually make a significant difference for clients.

The legal profession as a whole embraces Gideon as one of the high points in the system’s quest for equal justice, and cherishes the Court’s view that counsel’s presence is one of the "fundamental principles of liberty and justice which lie at the base of our civil and political institutions." ( Id. at 341.) More importantly, it’s a view shared by the average person, who identifies with the underdog seeking a fair shake within a legal system that is often intimidating and overpowering. As the subject of the Pulitzer Prize-winning book, " Gideon’s Trumpet," by Anthony Lewis, and a Hollywood movie starring Henry Fonda, it’s fair to say the legal decision in Gideon holds a special place in popular culture because it strikes a fundamental chord with all Americans.

If Gideon’s struggle to obtain a defender represents the bar at its best, however, the legal profession should be shocked to realize that, 40 years after that Supreme Court ruling, most poor people arrested today still do not have a lawyer at one of the most critical junctures of their entry into the legal system.

Yes, assigned counsel is present at the rare jury trial—less than one out of 15 arrestees go to trial—and at pretrial negotiations to argue against prosecuting a weak case (though most often they only have the time and resources to meet with clients once and counsel them to accept a plea bargain). But assigned defenders are missing in action at states’ bail and pretrial release determination, the customary first stop for every person who enters the criminal judicial system. Here an indigent defendant observes a scene reminiscent of what Clarence Earl Gideon probably saw when he appeared at a bail hearing: a presiding judicial officer, probably a prosecuting attorney, but no defender. Indeed, it is the rare state or locality in our country that guarantees counsel’s representation at the bail stage. Only eight states—California, Connecticut, Florida, Illinois, Massachusetts, North Dakota, West Virginia, and Wisconsin—and the District of Columbia, uniformly ensure a defense lawyer’s advocacy. More than twice as many states, 18 altogether, refuse to provide counsel at bail for indigent defendants anywhere within their jurisdictional borders. In the remaining 24 states, a defender is present in only one or two counties.

No doubt many find it surprising to learn that most states and local courts require the indigent accused to speak directly to a judicial officer and oppose the government’s request for bail without the assistance of a skilled lawyer.

How is it possible, four decades after the Supreme Court’s landmark ruling, for states to continue to deny legal representation to the poor? In a nation that prides itself on guaranteeing access to justice, why does the revered constitutional right to counsel still have so little meaning for indigent defendants when their liberty is at stake? How have states and localities been able to avoid their constitutional obligation to guarantee counsel at the bail stage?

Before answering these questions and providing the legal rationale for understanding the states’ unwillingness to provide legal representation, some might wonder what all the fuss is about. Surely a lawyer’s role at a bail hearing is not comparable to a trial, and it may not even compare to a pretrial conference. Bail proceedings move swiftly, and lawyers usually do not have much time to prepare or to speak. Judicial officers, some would argue, have enough information to make a decision, and the cynical lawyer might add that judges do not always appear to listen or seriously consider defense arguments anyhow. In other words, some question whether a lawyer’s presence affects the judicial outcome of a bail determination.

Lawyers accustomed to appearing at bail hearings would disagree. They share the view that providing judges with reliable information about an accused’s likely reappearance in court and advocating for pretrial release results in many more favorable rulings than clients who appear pro se. These defenders have seen the change in a judge’s attitude when they confirm a client’s living, family, and employment circumstances, and show the person is a minimal risk of flight or of public danger. A recent University of Maryland empirical study supports this perspective.

The empirical data

In August 1998, the Maryland Lawyers at Bail (LAB) Project began representing Baltimore’s low-income detainees accused of nonviolent offenses. ( See Doug Colbert, Do Attorneys Really Matter? The Empirical and Legal Case for the Right of Counsel at Bail, 23 Cardozo L. Rev. 1719, 1728–62 (2002).) Prior to LAB, indigent defendants had no lawyer in Baltimore or in the State of Maryland, with the exception of two counties. LAB grew from the groundbreaking efforts of the University of Maryland Law School’s clinic students, who were the first to represent poor people at city bail hearings. Following the students’ phenomenal success, in which they gained pretrial release for seven out of 10 detainees, LAB received private funding. Over the course of the next 18 months, LAB lawyers defended nearly 4,000 people. The University of Maryland’s social scientists then tried to measure the value and benefits of a lawyer’s representation.

The LAB study conducted a randomized selection of similarly situated Baltimore defendants, charged with nonviolent crimes, who had remained incarcerated on unaffordable bail. They then randomly divided the detainees into two groups: One group was represented by a LAB lawyer, the other did not have counsel. Except for the random assignment of counsel, the two groups of arrestees awaiting a bail hearing compared favorably on a host of factors (age, criminal histories, prior failure to appear in court, family and community ties, and employment).

The results were dramatic. Represented defendants were released on recognizance from pretrial custody two-and-one-half times more often than were those defendants with similar backgrounds who were not represented. Additionally, two-and-one-half times as many represented defendants had bail set at an affordable amount. The study also revealed that early representation enhanced defendants’ respect for the system’s overall fairness and confidence in defense counsel.

The results of the study are even more significant when viewed in light of the ultimate dispositions of cases. In Maryland, nearly three out of five persons charged with lower court, mostly nonviolent misdemeanor cases ultimately had their cases dismissed or not prosecuted. ( Id. at 1722.) Those unable to afford bail spent an average of 68 days in jail before being released. (Faye S. Taxman, Karl I. Moline & Jason Marcello, Exploring Three Decision Points: An Analysis of the Baltimore Pretrial Process, at 25 (Md. Dep’t of Public Safety & Correctional Srvs. 2000).) Representation at bail reviews would have saved many from a lengthy and unnecessary incarceration. (Colbert, 23 Cardozo L. Rev., supra at 1756–57.)

The Baltimore LAB study concluded that for people charged with nonviolent crimes, a lawyer’s representation was the crucial difference between pretrial release and incarceration. It found that delaying representation until after the pretrial release determination was the single most important reason for lengthy pretrial jailing. The study also revealed that, absent a lawyer, defendants and their family relied on bail bondsmen and paid an expensive, nonrefundable fee to regain liberty.

This representation project presents a useful model for states interested in improving their pretrial release determinations and showing the value of counsel at the bail stage.

Bail hearings

However one may differ about the lawyer’s role and ability to influence judges’ pretrial release decision making, most would agree there is much at stake at a bail hearing. Following the determination, many pretrial detainees do not appear in court until many weeks later and sometimes even longer. In Detroit and Santa Fe, detainees’ cases are scheduled within 10 to 20 days; in Charleston and Belleville, the wait is 20 to 30 days; in Cleveland, Prince Georges, and Greensboro, detainees wait at least one month before being brought from jail to court. ( See Douglas Colbert, Thirty-five Years After Gideon : The Illusory Right to Counsel at Bail Proceedings, 1998 Ill. L. Rev. at 8–11.) During incarceration, defendants often lose jobs and face eviction from homes, and families suffer the absence of an economic provider or child caretaker. Those unable to afford bail or the bondsman’s fee remain incarcerated until trial or a plea bargain has been reached.

Because assigned counsel usually does not meet a detained client until the next court appearance following bail, they lose valuable time in preparing a defense. Most lawyers recognize that the period immediately following arrest is "most critical" and "vitally important" for conducting a "thoroughgoing investigation and [trial] preparation." ( Powell v. Alabama, 287 U.S. 45, 57 (1932).) Delay seriously impedes interviewing a prosecution witness or locating a key defense witness, who often become less available the more time that passes. This can lead to potentially disastrous consequences on the system’s ability to render fair and just verdicts. Denying representation at bail, and for lengthy periods thereafter, openly invites miscarriages of justice and convictions of the innocent at trial.

From the criminal justice system’s standpoint, the success of representation at bail reduces jail overcrowding and saves taxpayers the enormous costs of pretrial detention. The LAB defenders’ appearance at the bail stage, for instance, played a major role in reducing Baltimore’s overcrowded pretrial jail population; during its first nine months, the population plummeted from 50 percent over capacity to 20 percent below capacity. (Colbert, 23 Cardozo L. Rev., supra at 1739.)

If, then, a lawyer’s representation is beneficial to the pretrial system, what is the legal rationale for explaining states sliding back to the day when itinerant and uneducated defendants like Clarence Earl Gideon were left standing alone when appearing before a judicial officer?

Gideon construed

The U.S. Supreme Court has never decided whether or not the constitutional right to counsel’s "guiding hand . . . to every step in the proceedings" includes bail determinations. Nor has it ever ruled whether a bail hearing is a critical stage of a criminal proceeding that mandates counsel’s representation. Most state courts also have not faced these issues. In the absence of a specific ruling, most states continue to construe Gideon and its progeny as permitting bail hearings with legal counsel.

It is not a pretty sight to see local judges presiding without counsel present. Detainees, who could neither afford bail nor a private attorney, may enter a courtroom handcuffed and shackled. Or they may, instead, be viewed via the sterile medium of video jail broadcasts (which sometimes malfunction, but allows the city or state to save the expense and time of transporting the detainees to the courtroom). In either case, most detainees are poor, are disproportionately people of color, and charged with nonviolent crimes. Hearings do not last long. Most detainees choose not to speak. Few know what to say. Those who do speak frequently make incriminating statements while they plead for release. The presence of a prosecuting attorney stacks the odds even greater against the accused.

Gideon v. Wainwright was supposed to change this scenario. During the decade following Gideon, the Supreme Court remained true to its course of guaranteeing representation. It extended the constitutional right to misdemeanor trials in Argersinger v. Hamlin, 407 U.S. 25 (1972), and to "critical" pretrial stages in cases such as United States v. Wade, 388 U.S. 218 (1973), and United States v. Ash, 413 U.S. 300 (1973). In Coleman v. Alabama, 399 U.S. 1 (1970), the Court went so far as to recognize a lawyer "would be influential" in the outcome of a bail determination. It connected counsel’s advocacy to the likelihood of "making effective arguments for the accused." ( Id. at 9.)

But just three years later, the Court abruptly applied its judicial brakes to the interpretation of counsel’s guarantee. In Gerstein v. Pugh, 420 U.S. 103 (1975), the Court ruled states were not required to provide an attorney for poor people at the judicial probable cause determination, which occurs within 48 hours from arrest. Finding that this was not a "critical" stage, the 5–4 majority invited states to experiment with combining the bail hearing and the "no need for a lawyer" probable cause determination. In deferring to federalism concerns, the Court suggested that states might decide probable cause "at the suspect’s first appearance before a judicial officer, or the determination may be incorporated into the procedure for setting bail." ( Id. at 123–24.) Most states accepted the offer. Apparently, the Court majority believed that an appointed lawyer would soon appear to represent the indigent defendant. It mentioned the American Law Institute’s model code proposal that would guarantee counsel’s appearance within two days of a magistrate’s hearing. ( Id.) More recently, in In County of Riverside v. McLaughlin, 500 U.S. 44, 55 (1991), the Court reiterated its mistaken belief that the "appearance of counsel [would be] arranged" at the initial appearance for bail and a probable cause determination.

For almost three decades, Gerstein’s "experiment" to eliminate lawyers at the bail stage has denied legal representation for most people who cannot afford private counsel. In a defender’s absence, many judicial officers lack crucial information about the detainee that would allow them to make an informed decision. Too frequently they render erroneous pretrial determinations, resulting in detainees remaining in jail for unnecessarily long periods and at great social cost. Many detainees do not meet appointed counsel until weeks after arrest—sometimes not until the day of trial itself. Even the conscientious appointed defender is hard-pressed to prepare a defense and protect a client’s fair trial rights if he or she has remained on the sidelines too long at the outset of a case.

The time is ripe for the U.S. Supreme Court and for state courts to revisit the impact of Gerstein and acknowledge the failed experiment with lawyer-less bail hearings.


Gideon’s promise of legal representation has never been the reality for most poor people at the front end of the criminal process. Hundreds of thousands of people charged with nonviolent offenses continue to languish in pretrial jails each year because they had no lawyer at the crucial bail stage. The Maryland Lawyers at Bail project’s empirical data show the benefits of representation at bail. An accused is more likely to be released, to respect the system and comply with orders, to keep a job and home, and to help prepare a defense. The public benefits from unclogging overcrowded jails and saving costs.

States risk the loss of public confidence in the fairness of its pretrial release process by failing to guarantee lawyers to every person who cannot afford private counsel.

The absence of counsel at local bail proceedings should send the same alarm to the legal profession that Clarence Earl Gideon rang long ago, and that summoned lawyers like Abe Fortas and Abe Krash. Lawyers are well aware that the constitutional right to counsel is fundamental toward promoting equal and fair justice. They must take the necessary steps to protect the legitimacy of the pretrial criminal justice system and require the constitutional right of counsel become a reality for all.

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