Half of US counties provide no lawyer at bail hearings

Roughly half of all US counties do not provide defense counsel at initial bail hearings. Only 10 states guarantee counsel at this stage. This means a person is brought before a judge within 24-48 hours of arrest, and a bail amount that determines whether they sit in jail for weeks or months is set in a proceeding that often lasts under five minutes, with no attorney advocating on their behalf. The defendant, who may be disoriented, sleep-deprived, and unfamiliar with the legal system, faces a prosecutor arguing for high bail while having no one to present mitigating factors like employment, family ties, or community roots. A RAND field experiment in Pittsburgh found that simply providing a public defender at bail hearings increased the probability of non-monetary release by 21% and reduced the probability of being in jail three days later by 10%, with no increase in failure-to-appear rates. This means tens of thousands of people are sitting in jail right now not because they are dangerous or flight risks, but because no one was there to speak for them at the five-minute hearing that decided their fate. The structural reason this persists is that the US Supreme Court has never recognized the bail hearing as a 'critical stage' under the Sixth Amendment, so there is no constitutional mandate to provide counsel, and cash-strapped counties have no incentive to fund what they are not required to provide.