John P. Gross


There is a widely-held belief that the state provides counsel to indigent criminal defendants at their initial appearance in state court. However, the majority of states do not provide counsel to indigent defendants at their initial appearance when a judicial officer determines conditions of pretrial release. State criminal procedure codes fail to provide the same procedural protections that defendants have in federal court. Indeed, states systems are characterized by predictive determinations regarding guilt, an overemphasis on the potential dangerousness of defendants, a lack of adequate pretrial services, and continued reliance on financial securities.

The U.S. Supreme Court has done little to protect the constitutional rights of indigent criminal defendants when they initially appear before a judicial officer that has the power to restrict their liberty, despite the fact that the setting of bail implicates an indigent defendant’s right to counsel under the Sixth Amendment and the right to due process and equal protection under the Fourteenth Amendment. The Court has never found the setting of bail to be a critical stage of the proceedings that would require the presence of counsel or discussed what procedural safeguards should be in place to protect the rights of indigent defendants. These failures may contribute to rising rates of pretrial incarceration, a trend that the Court should take steps to reverse by finding a right to counsel at an indigent defendant’s initial appearance where a judicial officer has the power to place restrictions on their liberty.