After arrest, low-income defendants may spend weeks or months in jail before they can request a lower bond

After being arrested, defendants accused of crimes can spend days, weeks or longer without seeing a judge or an attorney, delaying their ability to seek lower bonds or release from jail.

Low-income defendants in many courts aren’t guaranteed access to a public defender during their first appearance before a judge, and many states don’t provide them. This moment in court, also called an arraignment, is often a defendant’s first opportunity to ask to be released from jail or to pursue a lower bond.

Defendants who have legal representation during their first appearance or bond hearings are more likely to receive lower bond amounts or be released from jail.

For those who can’t afford to bail out of jail and don’t have an attorney during their first appearance, their next chance to request a lower bond could be weeks or even months later in some states.

In South Carolina, where bond hearings are a defendant’s first chance in front of a judge, public defenders aren’t available during the bond docket in most parts of the state, said Allie Menegakis, a private defense attorney and executive director of South Carolina for Criminal Justice Reform.

“The bond hearing, in my opinion, is one of the most important hearings in a person’s entire criminal case,” she said, “because it determines whether someone’s going to be fighting their case from behind bars or outside of bars.”

In South Carolina, if defendants can’t afford the bond set at their initial bond hearing, they may have to wait up to four months for a hearing to ask the court for a lower amount, Menegakis said.

In this Kansas courthouse, prosecutors, public defenders and jailed defendants usually aren’t in the courtroom for first appearances

The Constitution and Supreme Court haven’t addressed how long someone can be in jail before they first see a judge or when they’ll receive access to a public defender. Only four states require first appearances to take place within 24 hours, and 33 states don’t have a firm deadline for the hearings, according to a 2021 report from the Deason Criminal Justice Reform Center based at Southern Methodist University’s law school.

In Sedgwick County, Kansas, Chief Public Defender Sonya Strickland said her office doesn’t have the resources to send staff to first appearances. Prosecutors don’t usually attend first appearances, either, unless the defense wants to argue for a lower bond or another issue, Sedgwick County District Attorney Marc Bennett said by email.

Defendants who are in custody also aren’t there in person, he said, as they attend virtually from jail.

Sedgwick County District Court Chief Judge Jeffrey Goering said he didn’t know why the court has historically not had attorneys present during the hearings.

“It’s just the judge and defendant, and normally judges follow bond recommendations made by the prosecution,” he said. “From time to time, counsel will argue for a lower bond, and sometimes that results in a lower bond, and sometimes it doesn’t.”

[ Read more: How the cash bail system favors the wealthy ]

Strickland’s office usually begins to work with defendants about a week after their first appearances. Before last fall, if her team decided to ask the court for a lower bond for a client, the process to request and receive a bond hearing could take several weeks from start to finish.

Now it takes about a week. In November, the court system set up a weekly docket for pre-trial hearings, including requests to reduce bond, to deal with case backlogs from court closures during the pandemic. The docket was created using American Rescue Plan Act funds, with about $3.2 million from the covid relief program budgeted for the court system during the 2022 fiscal year.

Sedgwick County Deputy Public Defender Bach Hang said that during bond hearings, most judges “don’t have our client brought up for that motion. And why aren’t they there?”

The Sixth Amendment gives defendants the right to be present during critical stages of their trial, and the court doesn’t consider bond hearings one of those stages.

“I prefer to have them there for anything I can have them there for usually, whether it’s a critical stage or not,” Goering said, “because I think there is a way of thinking with defendants if they’re not brought over that the system is doing something untoward or not behaving correctly. Instead of fostering those types of thoughts about the justice system, I just bring them over.”

Goering said he wasn’t sure how other Sedgwick County judges handle this decision, but he prefers to have defendants present during bond modification hearings so they can see what was considered in setting bond.

“They feel like their case is being adjudicated, rather than them not being there or having a say in it,” he said.

Bennett said staffing is one reason why judges don’t require defendants to be present during bond hearings.

“To bring inmates from the jail to the courtroom takes a sufficient number of deputies to escort the person to and from the courtroom—sometimes more than one person at a time,” he said. “That reality may create a limitation on the number of such hearings that can take place in a day given labor shortages in law enforcement currently (in jails specifically).”

Strickland believes that holding bond hearings without defendants present affects her clients’ credibility.

“As a defense attorney, it’s harder to argue for someone when they’re not standing next to you. It’s a team effort. It’s just frustrating,” Strickland said, adding, “I think part of it is just an emotional cop-out. It’s easy to say no when you don’t have to look somebody in the eye.”

Bond hearing delays add to pressure to plead guilty

In 2016, Charleston County became the first in South Carolina to have public defenders present at initial bond hearings. Six years later, most circuit courts in the state still don’t provide public defenders during the hearings.

In South Carolina, obtaining a bond modification hearing can take two to four months, Menegakis said.

The state’s court system has a judge shortage and is one of just a few states that uses rotating judges, who travel to hear cases in multiple courts across the state. That limits the number of available court dates.

Hearings for judges to reconsider bonds in circuit courts are usually held just a few days a month, Menegakis said.

When she previously worked as a Charleston County public defender, she said, “It was faster for me to get something set for a plea than it was for a bond hearing.”

A spokesperson for the South Carolina Judicial Branch didn’t make staff available for an interview or respond to questions sent by email. The branch has previously told reporters there isn’t a delay in scheduling hearings to reduce or revoke bonds.

Menegakis said a dynamic where plea deals are penned more quickly than new bond hearings pressures defendants to make plea agreements.

In Oklahoma City, defense attorneys, including state Rep. Jason Lowe, a Democrat, have similarly argued that abysmal conditions at Oklahoma County’s jail pressure defendants into plea deals, even when they aren’t guilty of the charges. Most criminal cases in Oklahoma County end in plea deals.

People who can afford bond avoid the consequences of time in jail, including losing work, housing, custody of their children or progress with substance abuse treatment.

“Some of these folks are pleading guilty to get out of custody so they can get back into the community, and that’s often what we see,” said Meagan Taylor, program director for the Oklahoma County Diversion Hub. “We want to make sure that folks are not pleading guilty to charges just so they can get out of the Oklahoma County jail, so it’s a disproportionate impact for those that are experiencing poverty.”

Oklahoma County arraignments don’t meet court timeline requirements

In Oklahoma, Tulsa County has a docket dedicated to holding bond hearings seven days a week, so defendants can usually meet with the court within two days of their arrest, advocates have said.

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In Oklahoma County, defendants’ first opportunity to request a lower bond is during their arraignment, which usually happens three to seven days after their arrest, depending on when a person is arrested and the volume of cases.

However, an administrative order requires arraignments in Oklahoma County to take place within 48 hours of arrest, Taylor said.

When someone is booked into the Oklahoma County jail, if the state doesn’t file charges within 10 days, they’re released. Taylor said people are often released from jail for this reason. Afterward, they receive a date to return to court for arraignment.

In the past, when someone was released because charges hadn’t been filed, Taylor said, they received a date to return to court for their arraignment. If the state hadn’t filed charges at that point, they received another court date.

The cycle could continue indefinitely, increasing the chances of someone receiving a charge for failing to appear in court even though they hadn’t been formally charged with anything.

Starting during the pandemic, if someone returned to court and still hadn’t been charged, they stopped receiving additional arraignment court dates, Taylor said. They still may be charged, though, so they’re expected to rely on their lawyer if they can afford one or to check court records online to see if charges have been filed, which is challenging for those without access to technology.

“That was one area where arraignments have adjusted to set people up for a little bit more success without having to come back to court so often,” Taylor said, adding: “It is a better system than it used to be, but if the district attorney would file in a timely manner, there wouldn’t be a delay in processing.”

Oklahoma County District Attorney David Prater was unavailable for an interview.

Taylor said diversion hub staff look at jail book-ins daily to identify people who they could connect with bond programs, such as The Bail Project, a nonprofit that bails out defendants who can’t afford their bonds.

“We obviously know that destabilizes them quite a bit,” she said. “So that is the goal is to find individuals that should and could get out right when they’re booked in.”

Contact BigIfTrue.org editor Mollie Bryant at 405-990-0988 or bryant@bigiftrue.org. Follow her on Twitter.

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