< PreviousRIGHT TO COUNSEL? Lessons from a program evaluation in St. Louis County, Missouri By Lauren Morgan, PhD, Faraneh Shamserad, and Beth M. Huebner, PhD13 AMERICAN PROBATION AND PAROLE ASSOCIATION THE PRETRIAL ISSUE RIGHT TO COUNSEL? LESSONS FROM A PROGRAM EVALUATION IN ST. LOUIS COUNTY, MISSOURI D o you assume that indigent defendants are routinely provided counsel during legal proceedings pertaining to probation violations and pretrial release decisions? The truth is that most legal jurisdictions do not provide counsel to indigent defendants during these key legal processes (Gross, 2017; Heaton et al., 2017), even though access to legal counsel is an important factor in the probation violation process. In Missouri, individuals are eligible for representation, including from a public defender, if the result of the hearing could lead to revocation; yet, as will be described below, access to legal counsel is often not sufficiently considered in policy work pertaining to probation. This is a significant omission, given the overall size of the probation population and the proportion of people who violate their probation conditions, often for non-criminal, noncompliance issues (Roth et al., 2021). Although there have been declines in the national probation population over the past decade, one in 84 adult US residents is currently on probation (Kaeble, 2021), and the number of probation violations in this population is sizeable. Moreover, in Missouri--and many other states— individuals can be detained in jail awaiting a probation violation hearing, so consider the impact on the individuals involved as well as the collective outcome of not having adequate legal advice and guidance in the probation violation process. Legal representation is a constitutional right, yet it is unclear when the right to counsel begins in the legal process. The need for representation is large, given that more than half of individuals charged with a felony in state courts and eight of ten persons in the largest county courts used the services of a public defender (Harlow, 2000). Public defenders in most states do not have adequate time to dedicate to representation at all phases of adjudication– including probation violations–in view of staffing shortages (American Bar Association, 2014). Advocates argue that critical decisions around pretrial detention and bond setting require legal representation and have enormous consequences for individuals and the community’s safety (Gerstein, 2013; Gross, 2017; Mrozinski & Buetow, 2020), particularly for people of color, individuals without the economic means to secure legal representation, and other minoritized groups. The same is true for violations of probation. People of color are disproportionately represented among the probation population. In 2018, the percentage of the US probation population that was Black was 30%, twice their proportion in the national population, and Black individuals were approximately 2.6 times more likely than White individuals to be on probation (Phelps, 2018; Roth et al., 2021). Black individuals, particularly young men, are also more likely than White individuals to struggle on probation, to be given multiple conditions of supervision, and to have their probation revoked (Steinmetz & Henderson, 2015; Steinmetz & Anderson, 2016). It is the growth in probation violations overall, which include technical violations and new crimes, that further necessitates the consideration of representation for this population. The racial disparities in probation populations and revocation rates require interventions that mitigate some of these inequalities. In this context, we focus on recommendations based on our research experience to guide jurisdictions that are interested in establishing an initial appearance program. It is crucial to consider how pretrial procedures can affect individuals who are currently under community supervision and how these findings may be applicable to initial appearances for violations of community supervision. These individuals sometimes return to jail for minor offenses or violations. Pretrial detention may hamper any progress made in community-centered treatment services, lengthen the time under supervision, and increase the resources that probation officers—and the courts—have to expend to manage the case process. Therefore, we describe the importance of adequate counsel for individuals on probation and what it means for probation and parole officers working with individuals in pretrial status. While the current study focused on initial appearance at pretrial, there are implications for legal representation at all phases, including post-adjudication violations, where the possibility of incarceration exists. THE INITIAL APPEARANCE PROGRAM PROJECT St. Louis County, Missouri. implemented the initial appearance program (IAP) project with MacArthur Safety and Justice Challenge Grant funds and support from the Missouri State Public Defender’s Office to address growing pretrial detention rates and racial disparities in the jail population. Implemented in 2019, the program provides grant-funded attorneys to serve clients during the initial What is an initial appearance? • Defendant is advised of their charges • In some jurisdictions, combined with the bond hearing • Usually within 48 business hours of the arrest • Many jurisdictions do not provide counsel at this hearing (Heaton et al., 2017) • Pretrial stage with major decisions: ROR, set bail, detailed until hearing14 PERSPECTIVESVOLUME 48, NUMBER 2 THE PRETRIAL ISSUE pretrial stages, including people on probation facing new charges or held for probation violations. In what would otherwise be a holding period while defendants wait to be assigned a public defender, initial appearance attorneys serve as interim representation at arraignment and the first bond reduction hearings. The attorneys offer services to anyone who is detained at first appearance and has not retained counsel, regardless of financial circumstances and the nature of the current charge. The application process for a public defender can take time, so this program serves as a bridge while people seek to obtain private counsel or wait for their public defender application to be processed (See Figure 1). The primary goals of the program were to reduce the length of stay for individuals held pretrial and to increase releases to the community. As part of the program, the attorneys worked to reduce the amount of monetary bond set and to increase the number of people released on recognizance. The program was also centered on ultimately reducing racial inequalities in the jail, given the strong association between an individual’s race/ethnicity and whether that individual is held in pretrial detention (St. Louis, 2023). Together, the hope was that defendants, including those who may currently be on community supervision, would receive timely and equitable representation in the early stages of their cases, such as arraignment and the first bond review hearing. To understand if and how providing counsel at initial appearance affects bond amounts, release type, and length of pretrial detention, we conducted a mixed- methods evaluation of the IAP implemented in St. Louis County, Missouri. The data used in our study were gathered from official jail and public defender records and interviews with project staff and stakeholders. The sample was limited to individuals who were admitted to jail on pretrial admissions for new Class C, D, and E felony charges, including individuals facing new charges related to probation violations. In order to determine the impact of participation in the initial appearance program on bail and pretrial outcomes, the sample was split into pre- and post-IAP groups, with the pre-IAP group representing individuals booked into the jail in the year 2018, prior to IAP implementation. Our findings suggest that providing early, no-cost representation at arraignment can lead to release on recognizance and lower bail amounts. Our results also indicate that this approach may help reduce racial disparities. Additionally, the courtroom stakeholders perceived value in the program for defendants, the criminal process, and the courtroom workgroup dynamics during pretrial stages. 1 WHAT DID WE FIND? The results, overall, suggest that the presence of counsel at the initial stages of the court process is associated with improved court outcomes. For instance, a significantly larger percentage of those FIGURE 1 FIGURE 2FIGURE 315 AMERICAN PROBATION AND PAROLE ASSOCIATION THE PRETRIAL ISSUE who had counsel were released on their own recognizance as opposed to pre-program defendants, and pre-program defendants were more likely to be denied the opportunity to post bail. More than twice as many individuals from the pre-IAP sample faced bail between $5,001 to $25,000 compared to those from the post-IAP sample (17% vs. 6%), and three times as many pre-IAP individuals had bail set higher than $25,000 relative to individuals in the post-IAP sample (11% vs. 3%). Participation in the IAP program significantly reduced the probability of higher bail being ordered. In our interviews with local stakeholders, we found that court actors involved in the program overwhelmingly supported it. Many felt that the program provided important guidance and information to judges as well as support to defendants during what can be a fast-paced, chaotic process and that this likely contributed to improved court outcomes. Further, all of the court actors we interviewed shared how the program made the dockets flow more efficiently and helped cases move through the system fairly yet productively. There are a lot of tears, and yeah people are grateful, some people are confused, which is understandable. You know, I try to explain all these legal things such as the first appearance, you know, just kind of trying to give them a rundown of the criminal justice system in a tiny amount of time can be very overwhelming, especially when they have not previously been involved in the system, so with that there’s some confusion, and, basically, as counselors and advocates, we have to take some extra time to explain things. I think it’s very, very beneficial because it sets them up to be in a better position when they do get their attorney. They have a bit more understanding of the process so that the public defender can represent them better. -IAP Attorney RECOMMENDATIONS If jurisdictions choose to adopt an initial appearance model that mirrors the St. Louis County model, we propose several recommendations. Recommendation 1: Funding for vertical representation processes Sixty years ago, the United States Supreme Court recognized in Gideon v. Wainright that individuals charged with a crime were given the right to counsel. In theory, this decision broadened access to representation, but in practice states were given wide discretion on how and when to implement this right. Far too often, the bare minimum is provided, leaving defendants unrepresented at critical stages of the criminal justice process, including their initial appearance in the court (Gross, 2017) and during probation violation proceedings. So, I think it has affected my decision making in the sense that the court has a more complete picture of the situation. We now have someone who’s able to speak for the defendants who understands the court system and who understands, you know, the factors of the supreme court rule that we have to take into account and things of that nature. -Judge Emerging evidence suggests that early representation can prevent individuals from incriminating themselves, can provide knowledge of the complex court process (Dinerstein et al., 2003), and can improve bail outcomes (Colbert et al., 2001; Worden et al., 2018; Worden et al., 2020). Our results confirm the importance of the initial appearance phase of court processing. Ideally, courts would adopt a vertical representation process in which an individual is represented by the same attorney (often a public defender) throughout the court process, including cases involving probation violations (Davies & Worden, 2017). For many courts, true vertical representation would require additional funding from local communities or state legislatures, given the additional workload that is required. Missouri has begun to experiment with holistic advocates, with AmeriCorps funding, which provides additional assistance and social support throughout a case. More information on the program can be found here: https:// publicdefender.mo.gov/employment/americorps Recommendation 2: Increase Funding and Resources for Indigent Defense In communities like St. Louis County, the prosecutor’s staff outnumbers the public defender’s staff by over two-fold (Stemen et al., 2022). Barriers to effective FIGURE 416 PERSPECTIVESVOLUME 48, NUMBER 2 THE PRETRIAL ISSUE representation will continue to exist unless action is taken to lessen the workload of public defenders (American Bar Association, 2014). While the Gideon decision clearly outlined the necessity for counsel, it never outlined what was envisioned as effective representation, including standards, training, and public defender resources. Aside from the obvious recommendation of securing more funds for public defense, our discussions with the IAP working group revealed some other budget- friendly suggestions. One popular suggestion was for attorneys to have a dynamic database to house information for community-based resources, bed spaces, and referral information. Attorneys frequently find themselves in situations where they need to make quick recommendations regarding housing and referrals to judges. By having access to more information, they would be better equipped to present their case effectively. Additionally, attorneys representing individuals appearing for probation violations would have greater bargaining power if they had relevant information readily available. Recommendation 3: Bridging Public Defense and Community Corrections As research continues to reveal a high number of individuals returning to jail for minor offenses or technical violations, the findings of this evaluation highlight the need for probation officers to understand the movement to pretrial programs targeted at this population of individuals. A growing number of jurisdictions are implementing pretrial probation programs to support and supervise defendants before their trial, reducing the likelihood of reoffending and helping them successfully navigate the criminal justice system. Jurisdictions should work together to implement pretrial probation and early representation programs simultaneously. Collaborating during this phase could potentially reduce the workload on attorneys and improve the safety of the community while undermining justification for imprisonment. Implementing pretrial probation programs alongside early representation initiatives could potentially offer individuals appearing in court for probation violations access to more supportive resources and guidance, ultimately increasing their chances of successfully navigating the legal system and avoiding further incarceration.17 AMERICAN PROBATION AND PAROLE ASSOCIATION THE PRETRIAL ISSUE REFERENCES American Bar Association. (2014). The Missouri Project: A study of the Missouri Public Defender System and attorney workload standards. Author. Retrieved from https://www.americanbar.org/news/abanews/aba-news- archives/2014/07/aba-report-on-missouri-public-defender- caseloads-provides-bluepr Dinerstein, R., Ellmann, S., Gunning, I., & Shalleck, A. (2003). Connection, capacity, and morality in lawyer-client relationships: Dialogue and commentary. Clinical Law Review, 10, 755. https://papers.ssrn.com/sol3/papers. cfm?abstract_id=530846 Gerstein, C. (2013). Plea bargaining and the right to counsel at bail hearings. Michigan Law Review, 111(8), 1513-1534. https://repository.law.umich.edu/mlr/vol111/ iss8/4 Gross, J. P. (2017). The right to counsel but not the presence of counsel: A survey of state criminal procedures for pre-trial release. Florida Law Review, 69(3), 831 - 885. https://scholarship.law.ufl.edu/flr/vol69/iss3/4 Harlow, C. W. (2000). Defense counsel in criminal cases. US Department of Justice, Office of Justice Programs, Bureau of Justice Statistics. Retrieved from https://bjs.ojp. gov/content/pub/pdf/dccc.pdf Heaton, P., Mayson, S., & Stevenson, M. (2017). The downstream consequences of misdemeanor pretrial detention. Stanford Law Review, 69, 711-794. https://www. law.upenn.edu/live/files/6467-harriscountybailstanford Kaeble, D. (2021). Probation and parole in the United States, 2020. U.S. Department of Justice. Retrieved from https://bjs.ojp.gov/library/publications/probation-and-parole- united-states-2020 Mrozinski, M., & Buetow, C. (2020). Access to counsel at first appearance: A key component of pretrial justice. National Legal Aid and Defender Association. Retrieved from https://www.nlada.org/sites/default/files/NLADA%20 CAFA.pdf Phelps, M. S. (2018). Ending mass probation sentencing, supervision, and revocation. Future of Children, 28(1), 125- 146. https://doi.org/10.1353/foc.2018.0006 Roth, A., Kajeepeta, S., & Boldin, A. (2021). The perils of probation: How supervision contributes to jail populations. Vera Institute of Justice. Retrieved from https://www.vera. org/downloads/publications/the-perils-of-probation.pdf Steinmetz, K. F., & Henderson, H. (2015). On the precipice of intersectionality: The influence of race, gender, and offense severity interactions on probation outcomes. Criminal Justice Review, 40(3), 361-377. https://doi. org/10.1177/0734016815577194 Steinmetz, K. F., & Anderson, J. O. (2016). A probation profanation: Race, ethnicity, and probation in a Midwestern sample. Race and Justice, 6(4), 325-349. https://doi. org/10.1177/2153368715619656 Stemen, D., Huebner, B. M., Omori, M., Webster, E., Early, A., & Torres, L. (2022). Exploring plea negotiation processes and outcomes in Milwaukee and St. Louis County. MacArthur Safety and Justice. Retrieved from https://safetyandjusticechallenge.org/resources/exploring- plea-negotiation-processes-and-outcomes-in-milwaukee- and-st-louis-county St. Louis, S. (2023). The pretrial detention penalty: A systematic review and meta-analysis of pretrial detention and case outcomes. Justice Quarterly, 41(3), 347 - 370. https://doi.org/10.1080/07418825.2023.2193624 Worden, A. P., Morgan, K. A., Shteynberg, R. V., & Davies, A. L. (2018a). What difference does a lawyer make? Impacts of early counsel on misdemeanor bail decisions and outcomes in rural and small town courts. Criminal Justice Policy Review, 29(6-7), 710-735. https://doi. org/10.1177/0887403417726133 Worden, A. P., Shteynberg, R. V., Morgan, K. A., & Davies, A. L. (2020). The impact of counsel at first appearance on pretrial release in felony arraignments: The case of rural jurisdictions. Criminal Justice Policy Review, 31(6), 833- 856. https://doi.org/10.1177/0887403419873018 AUTHOR BIOS Lauren Morgan recently received her PhD from the University of Missouri-St. Louis in Criminology and Criminal Justice and is currently a research assistant at the National Institute of Justice. Her research focuses on the intersection of the juvenile justice and child welfare systems, punishment, community corrections, and systems theory. Faraneh Shamserad recently received her PhD from the University of Missouri – St Louis. Her research focuses on issues of immigration and school safety policies, and immigration, crime, and punishment. Beth M. Huebner is the director and Watts Endowed Professor for Public Safety for the School of Criminology and Criminal Justice at Arizona State University. Her work focuses on the consequences of a criminal conviction, inequalities, community and institutional corrections, and public policy.18 PERSPECTIVESVOLUME 48, NUMBER 2 THE PRETRIAL ISSUE ACCESSCOURSE ACCESSCOURSE DIRECTIONSTO DIRECTIONSTO ACCESSTHECOURSE ACCESSTHECOURSETwoimportantcomponentsofthementoringprocessarecarefulmatchingof thementeetothementorandgivingofyourself.Apositivementorexperience ishardtocomeby–consideritagifttopayforward.Lookforsomeoneto mentorbecausetheyarelookingforyou. -RayWahl,LeadershipInstituteMentor Scantolearnmore abouttheMentor Requirements. NOWACCEPTING NOWACCEPTING MENTOR MENTOR APPLICATIONS APPLICATIONS FORAPPA’S10THCOHORTOF FORAPPA’S10THCOHORTOF THELEADERSHIPINSTITUTE! THELEADERSHIPINSTITUTE! Doyouserveinanupper-leadershipposition,pastorpresent? Canyoudedicate4-6hourspermonthtointeractwithanassigned emergingleader? Areyouwillingtoprovideconstructivefeedbackonyourmentees’ assignmentsandprojects? Introducetheparticipanttoanetworkofnationalcommunitycorrections leaders. Pairupwithtalentedindividualsinsupervisorandmanagerrolesin communitysupervisionwithinpretrial,probation,andparole.PROMOTING SUCCESS ON COMMUNITY SUPERVISION: Strategies for Improving Outcomes and Reducing Revocations By Caterina Spinaris and Daria Mayotte Desert Waters Correctional OutreachNext >