When Does the Right to an Attorney Kick In?

Despite the Sixth Amendment, in many jurisdictions, defendants don’t get legal representation the first time they go to court.

A closeup view of one of the original copies of the Bill of Rights
One of the original copies of the Bill of Rights (Matt Rourke / AP)

District-court judge Tom Boyd has presided over countless arraignment hearings, where he reads the charges against defendants, asks how they want to plead, and, if they are headed to trial, decides whether to set bail. Over his 12 years on the bench, one aspect of these sessions has increasingly troubled him: Most of the time, his defendants don’t have lawyers.

In Michigan, where Boyd presides, as in most states, defendants aren’t required to have legal representation at their first court appearance. If they can’t afford to hire private counsel, the state often doesn’t assign them a lawyer until after they’re arraigned. In 2015, only about 6 percent of Michigan district courts, where the hearings are held, required lawyers to be present. Ultimately, about three-quarters of defendants were on their own that year. Of those who pled guilty, half did so with no legal guidance.

Boyd still remembers one arraignment hearing early on in his career when a young man pled guilty to the minor charges brought against him. The Ingham County judge was perplexed, as he strongly suspected the defendant was innocent.

“I asked him why he wanted to plead guilty. He said, ‘Well, isn’t that how it works? You get arrested, you plead guilty, you get some probation, and you move on,’” Boyd recalled. In doing so, the man skirted what could have been a lengthy legal process. But he may have made a different choice if he’d had a lawyer to explain all his options.

Today, Boyd is “100 percent” convinced the state of Michigan should, and can, provide attorneys at first court appearance—a matter the state legislature may soon take up. “I didn’t have an ‘aha’ moment. I had dozens,” the judge explained. Some were similar to his exchange with the young man. Another was hearing a constitutional expert argue that lawyerless arraignments violate defendants’ Sixth Amendment rights. “Maybe I should have figured it out a long time ago,” he said.

The Sixth Amendment guarantees the right to legal representation in criminal cases, but doesn’t detail how the courts should apply it. A series of Supreme Court decisions over the past half-century have shaped how it plays out on the ground: The landmark Gideon v. Wainwright decision in 1963 guaranteed the right for all defendants accused of “serious crimes,” and Argersinger v. Hamlin did the same with misdemeanor and petty charges in 1972. “[N]o person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial,” Justice William Douglas wrote for the Court in Argersinger. In other words, defendants who could face jail time must have a lawyer.

Left undefined is when exactly the right kicks in before trial. Also in the 1970s, the Supreme Court established that some “pretrial procedures” require counsel, but arraignments weren’t specified. To this day, they’ve remained a legal gray zone. “That’s how we get to this sticking point,” said Zoë Root, senior policy counsel at American University’s Justice Programs Office. “States get to determine it themselves.”

On the surface, this might not seem problematic. Very few facts of a case are debated at an arraignment hearing. Judges only hand down sentences if defendants plead guilty. And lawyers’ arguments about cutting bail can seem simple; they often boil down to the idea that their clients aren’t a flight risk.

But Root called the arraignment hearing “incredibly critical. It’s the moment where the stage is set.” A defendant may automatically plead guilty to avoid not only a trial process, but also pretrial incarceration. Of those who plead not guilty, most don’t know what information could convince a judge to release them on their own recognizance, she said. This contributes to the high number of inmates who are in jail because they cannot afford to leave; of the over 20 percent of inmates currently awaiting trial, most are there because they can’t pay $3,000 or less in bail.

Legal professionals increasingly agree with Root’s take on the matter. The American Bar Association, for example, holds in its standards for criminal-defense attorneys that “counsel should be made available in person to a criminally accused person for consultation at or before any appearance before a judicial officer, including the first appearance.” But by and large, states have been slow to follow.

This may be because many local and state governments already underinvest in indigent defense, whether they contract it out or have a team of public defenders. A recent lawsuit against the state of Missouri, for example, argued that “a too-small cadre of lawyers is burdened with too many cases and, as a result, [has] too little time to properly defend their clients in court,” as Matt Ford described it in March. “With so little time spent on each of their many clients, lawyers are often unable to conduct interviews, review evidence, or pursue avenues of investigation that could be crucial to their defense.”

In some areas, including New Orleans, defendants wait in jail for months as their names move up on the waiting list for a court-appointed attorney. According to a 2009 survey, the most recent one taken, only 10 states provided low-income defendants lawyers ahead of arraignment. Another 10 never did. The rest varied by jurisdiction.

Since that survey was published, some states have started to change their policies. That includes Boyd’s home state of Michigan, where each jurisdiction decides when lawyers are assigned. In 2013, Republican Governor Rick Snyder appointed a commission to study how the state handles indigent defense. “We’re solving a problem that we’ve had in Michigan for far too long,” he said then. Three jurisdictions there have run pilot programs where defendants have counsel at their first court appearance. In Ingham County, where Boyd is, 13 percent of the cases scheduled for arraignment were dropped before the hearings even took place, because of out-of-court conversations between defense attorneys and prosecutors. Overall, the mean case length dropped by 20 percent, from about 32 days to about 26 days.

In May, the indigent-defense commission announced mandatory counsel at arraignment as part of a revised set of standards for legal representation. The panel plans to offer a bill to the state legislature, likely early next year, codifying the right. There has been little objection to the commission’s recommendations, except for a lawsuit from populous Oakland County. “We believe all defendants deserve competent counsel,” said the county’s lawyer, Keith Lerminiaux. But the way “the state went about it is unconstitutional,” he argued, claiming that an executive-branch commission requiring changes to the judiciary violates separation of powers.

As for the (typically thorny) issue of funding, Jonathan Sacks, the commission’s executive director, said money for additional lawyers would come from the state budget, and that legislators will consider the matter in their next session.

If Michigan manages to fund universal representation—without overburdening attorneys—it will have succeeded where others have failed. Just because there’s political will to institute reforms doesn’t always mean there’s money to do so. Reformists in and outside of government often focus on the back end of the criminal-justice system: getting people out of prison. But there will still be people funneling into those facilities if jurisdictions can’t fund the front end—providing adequate defense.

“Giving defendants a lawyer, treating them with respect, and honoring the Constitution gives them more confidence in what we’re trying to do,” Boyd said. “That starts with giving them the respect they deserve the minute they walk in the door.”