Justice from the Start: The Importance of Counsel at First Appearance

Everyone, no matter their race or wealth, deserves a fair trial and access to representation when navigating the legal system. Imagine being accused of a crime, unable to afford a private attorney, and walking into your first court appearance without anyone to advocate for you. This first appearance or arraignment is a critical stage where decisions are made about how much bail you may need to pay or whether you will be detained before your trial — decisions that directly impact a person’s ability to maintain employment, housing, and family connections. Now also imagine that you do not have the expertise to meaningfully advocate for yourself, and you must navigate a complex legal system alone. In Virginia, this is the reality for many individuals.

Evidence shows that initial court appearances are critical to the outcome of a case. Without legal counsel, many people who are accused of a crime — often Black Virginians and those with low incomes — face higher bail amounts, longer detention, and harsher case outcomes. Making sure that people have quality representation the first time they appear in court, known as “counsel at first appearance,” is a proven solution that would help reduce unnecessary detention, save the state money, and move away from justice being dependent on wealth. With opportunities still available through a House bill and a budget proposal, state lawmakers should advance this policy choice and offer a clear path to a more just system.

People who are being held in jail before they have been convicted of a particular crime, known as pretrial detention, often face devastating consequences that extend far beyond the courtroom. When someone is detained, they risk losing their job, their home, and their family stability. High bail amounts and extended detention exacerbate financial instability, often trapping people in a cycle of poverty and incarceration. The inability to afford bail forces many to stay in jail, miss work, and face eviction while their families endure emotional and financial strain.

These consequences also pressure people to take plea deals, even if they are innocent, simply to escape the burdens of pretrial detention. The fear of prolonged jail time leads many to accept unfavorable deals to regain their freedom, even if it means sacrificing their rights. Taking a plea deal can have long-lasting consequences, including a criminal record that makes it harder to find employment, secure housing, or rebuild family relationships.

It’s not a trivial number of people who are held longer than necessary due to lack of counsel. About 18,000 people each year are held in jail for more than a day, but are eventually released on bail within two to 14 days. This is the group most likely to benefit from early access to counsel as 77% were released within a day of their bail hearing.

Virginia’s overuse of pretrial detention isn’t just harmful — it’s expensive. On an average day in November 2024, over 20,000 people were held in the state’s jails, with 11,000 (53%) being held pretrial. Each day of pretrial detention costs Virginia and its localities, which provide most of the funding for local and regional jails, more than $145 per person. Lack of counsel leads to people spending unnecessary days in jail, resulting in millions of dollars in unnecessary spending, according to a 2021 analysis by Dr. Ariel BenYishay using the Virginia Pretrial Data Project. Using different assumptions, a 2023 report by JLARC, the state’s independent research agency, found up to $1.4 million in unnecessary spending on jails due to lack of counsel at first appearance. This detention is often unnecessary and places a heavy financial burden on all of us​.

By ensuring early legal representation, counsel at first appearance can also improve court efficiency by resolving cases faster and making separate bail hearings less common, according to the JLARC report. 

One in five Virginians is Black, yet more than 2 in 5 (43%) people who were held in Virginia jails in 2015 were Black. The systemic inequities within the criminal legal system, including bias in arrest practices and detention decisions, lead to higher rates of pretrial detention for Black people. Counsel at first appearance addresses these unequal outcomes by making sure everyone accused of a crime, regardless of race or income, has access to legal representation at the critical moment when detention decisions are made. This early representation has been shown to reduce the likelihood of detention, helping to disrupt the racial injustice that persists in the legal system.

The legal system also relies heavily on cash bail and secured bonds, which disproportionately affects low-income individuals. Counsel at first appearance and early advocacy often lead to lower bail amounts or no bail at all, increasing the likelihood of pretrial release and avoiding the cascading economic harms that come with unnecessary detention. People who can afford private attorneys are 45 times more likely to secure pretrial release than those without representation. Meanwhile, people who officially cannot afford counsel (indigent defendants) — who are disproportionately Black and low-income — face larger bail amounts, trapping people in a cycle of incarceration and poverty​. 

Counsel at first appearance is a matter of both economic and racial justice. It addresses systemic inequities by ensuring that everyone, regardless of race or income, has legal representation at a critical time of the legal process.

Counsel at first appearance is not just a concept — it’s a proven policy already working in several jurisdictions across Virginia. In places where it’s been implemented, counsel at first appearance has reduced unnecessary pretrial detention, lowered bail amounts, and improved people’s perceptions of fairness. The implementation of counsel at first appearance requires minimal upfront costs. About 70% of Virginia’s cases are in jurisdictions served by public defender offices, many of which can provide representation at first appearances without additional funding. And statewide, Dr. BenYishay’s analysis shows that the savings generated through reduced jail stays far outweigh the cost of implementation, making counsel at first appearance a cost-effective solution for Virginia’s justice system.

No one should lose their job, home, or family simply because they lack access to legal representation or cannot afford bail. Bills introduced this session in the House by Delegate Callsen (HB2217) and in the Senate by Senator Aird (SB1227) would make sure people have access to counsel from the beginning, which could make a significant impact on their case and on their family’s well-being. The House passed HB2217, now being considered in the Senate, and included related funding in their budget proposal. This means there’s still a chance to make counsel at first appearance a reality, and we need to make sure it’s included in the final budget. 

You can take action by urging your legislators to support this critical investment! By implementing counsel at first appearance statewide, lawmakers have the opportunity to create a more fair, equitable, and effective justice system for all. Together, we can move toward a future where justice isn’t determined by the size of your wallet or the color of your skin, but by the fundamental right to fair treatment.

Categories:
Budget & Revenue, Decriminalizing Poverty