By Kacie Fountain

           In Arizona, criminal defendants experiencing poverty are not always represented by an attorney the first time they go before the court. While a defendant who can afford to hire private counsel will likely have their attorney present during their first court proceeding, known as an initial appearance, low-income defendants often enter the courtroom alone. In Arizona and thirty-two other states, magistrates appoint public defenders during the defendant’s initial appearance. During the same proceeding, however, the magistrate also makes a bail determination. Without an indigent defendant’s public defender present, a magistrate will decide whether the defendant must pay bail and, if so, how much. To continue to work towards a more equitable bail system, Arizona must follow in the footsteps of states who have recognized the right to counsel at initial appearances, thus securing Gideon v. Wainwright’s mandate that indigent defendants have the right to assistance of counsel at all critical junctures of their case.

A lack of representation during bail determination can have grave consequences for defendants. Defendants who are represented at bail determinations are “two and a half times more likely to have bond set at an affordable level as compared to unrepresented individuals.” Thus, unrepresented defendants are more likely to have unaffordable bail amounts simply because they lack the presence of counsel. The negative impact of unaffordable bail on people experiencing poverty, especially Black, Native American, and Latino defendants, is extreme. People who are assigned higher bail stay in pretrial detention longer, are more likely to lose jobs or homes, and are more likely to take plea deals. Some lose custody of their children. Higher bail has also been linked to detrimental outcomes at trial. One quantitative causal study of indigent defendants in New York City found that “cases for which bail was set were much more likely ­— in some cases more than twice as likely — to result in a determination of guilt than those for which bail was not set.” Bail can even result in death.

Judicial discretion plays a large role in bail determination at initial appearances. Without a defense attorney present to advocate for the defendant, the court is typically only seeing the police report and the prosecutor’s bail request. Concerningly, for cases where two judges could reasonably come to different conclusions about whether or not a defendant must pay bail, “setting bail results in a 34% increase in the chances that [the defendant] will be found guilty.” This wide margin for judicial discretion at such an early stage in the adversarial process can have disastrous impacts for defendants. In fact, judges’ racial bias can result in Black defendants being assigned bail more frequently and in higher amounts than white defendants. A defense attorney’s advocacy can protect against inappropriate judicial discretion by contextualizing mitigating factors like the defendant’s community support system. As Maryland’s Court of Appeals stated in DeWolfe v. Richmond,“[g]iven the number of factors considered by the Commissioner [when determining bail], we held that the ‘presence of counsel . . . can surely be of assistance in that process.’”

Although Arizona has taken some measures in recent years to reform its bail system — including the 2017 revision of the Arizona Rules of Criminal Procedure to decrease unpayable bail and Pima County’s Public Defense Services’ recently proposed Community Bond Program — no reforms have addressed the issue of representation at initial appearances. To truly change the disparate impact that bail has on low-income defendants, Arizona must undertake structural changes that ensure equity when bail is initially set by judicial officials. Fundamentally, defendants should not be unrepresented at initial appearances simply because they cannot afford an attorney.

Maryland resolved this concern in 2012 by requiring that indigent defendants be represented at bail determinations. After several years of failed attempts to pass legislation requiring representation for low-income defendants at initial appearances, advocates eventually filed a suit asking the Maryland Supreme Court to recognize the right to representation at initial appearances. DeWolfe v. Richmond (Dewolfe II) did so, ultimately holding that the Maryland Declaration of Rights provides for “state-furnished counsel at an initial [appearance].” Encouragingly, a mere five months after the implementation of indigent representation at bail hearings, a legal advocate noted that “roughly seventy percent of represented detainees gained pretrial release at initial appearance, substantially higher than the previous fifty percent of unrepresented defendants who had regained their liberty.” Maryland’s biggest struggle has been maintaining appropriate funding levels for the public defense agency to support this necessary level of representation.

Public defense agencies should not be expected perform additional representation without sufficient support from the state. Instead, an effective state-wide implementation of universal representation for low-income defendants in Arizona would require four steps: (1) preemptively and permanently increasing funding and staffing for public defense agencies; (2) studying the practical implementation of universal representation at initial appearances in Maryland and other states to create a model for Arizona; (3) working with necessary stakeholders to project practical concerns for Arizona, such as the co-location of public defenders and courtrooms for initial appearances; (4) amending the Arizona Constitution to definitively ensure the right to counsel at all stages of the adversarial process, including during initial appearances. Now, in a time where COVID-19 responses are decreasing jail populations and public opinion in Arizona is in favor of “ending the practice of keeping people in jail before trial if they have been charged with a misdemeanor or non-violent felony crime,” legislators, advocates, and everyday Arizonans must push for meaningful structural reform that ensures that people experiencing poverty are treated with fairness and respect.