Thirty-five Years After Gideon: The Illusory Right to Counsel at Bail Proceedings
Douglas L. Colbert   |   1998 U. Ill. L. Rev.

Sixty-six years ago in Powell v. Alabama, the Supreme Court declared that the pretrial stage from arraignment until trial was "the most critical period" for investigating criminal charges, preparing a defense, and consulting with an attorney. Yet, throughout the country, a majority of states and localities do not provide counsel for indigent defendants when they first appear for a judicial bail determination and for a lengthy period thereafter during the crucial pretrial stage. In this article, Professor Colbert argues that the constitutional right to counsel should apply to bail proceedings to protect an individual's liberty and right to defend against a criminal accusation.

Professor Colbert begins by describing the results of a national survey he conducted, which indicates that, in most jurisdictions, an accused should not expect legal representation when first brought to court before a judicial officer, who decides whether to order pretrial release or bail. He goes on to explain the crucial importance of representation by counsel at the bail determination and provides a Sixth and Fourteenth Amendment analysis for guaranteeing the right to counsel. Moreover, Professor Colbert discusses why jurisdictions are mistakenly applying the constitutional doctrine and denying counsel to indigents at the bail stage, and for many days, weeks, or months thereafter. The author then offers an economic justification for providing counsel by describing the substantial cost savings that would result from representation for bail purposes. Professor Colbert contends that lawyers' early intervention would significantly reduce court congestion and overcrowded jails, thus lowering the public expense for maintaining an unnecessarily large pretrial jail population. He concludes by asserting that the professional responsibilities of lawyers, judges, and the legal profession as a whole require that they advocate for representation by counsel at this initial stage of a criminal proceeding.

* Professor of Law, Maryland School of Law. A.B. 1968, State University of New York at Buffalo; J.D. 1972, Rutgers (Newark) Law School.