Focusing on the overincarceration of pretrial detainees who await trial in caged cells for many weeks and months, this Article recognizes the important changes made in many states and local jurisdictions to guarantee poor people their right to counsel’s representation at the judicial bail stage. A defense lawyer’s ability to provide credible arguments, present verified information, rebut the prosecution’s position, place context for prior convictions and other negatives, and highlight the positives often makes the difference in judicial decision-making. Without counsel’s zealous and effective advocacy, many people accused of crime remain in jail indefinitely until their criminal cases conclude, causing additional hardship and deprivation to the disproportionately impacted African-American, Latino-American, and low-income white communities.
Aware of the many states that still do not provide counsel when defendants first appear before a judicial officer, this Article argues that representation alone cannot succeed at significantly reducing pretrial incarceration for poor, low-income, and working defendants without prosecutors asserting their role as ministers of justice and judges acting courageously as impartial arbiters in protecting individual liberty. The defense bar, too, plays a crucial role in collecting data justifying prosecutors’ favorable recommendations and judges’ release decisions. Each principal player must educate and explain pretrial release decisions when these decisions come under public attack. Such a unified effort provides the support and cover needed to even the playing field for the presumed innocent person accused of crime, to where the justice system limits pretrial incarceration to the most dangerous defendants, and where clear and convincing evidence must exist to support a finding of a recent history of violence or of a flight risk from the jurisdiction. Protecting prosecutors who recommend and judges who order release from unfair or baseless public criticism becomes a matter of highest order in protecting individual liberty and reinforcing the checks and balances within our constitutional democracy.
