California Defendants Are More Likely to Go Free If They Meet Lawyers Early

In most California courts, morning arraignments are a mess.

Lawyers refer to them as “cattle calls.” Defendants troop in, typically in jail jumpsuits, and seat themselves in the jury box. Moments before a judge calls their name, they spend a few hushed minutes conversing with a public defender who explains what they’re charged with before they make a plea.

But in Santa Clara County, when indigent defendants met with an attorney in jail soon after their arrest, their situation changed dramatically for the better.

That was the conclusion of a study by California Policy Lab, a nonprofit research group affiliated with UCLA and UC Berkeley. Researchers found that indigent defendants in a pilot program were 75% less likely to be convicted if they met with a public defender within 48 hours of their arrest, and 75% more likely to be released before trial.

Those meetings gave public defenders time to ask about their clients, such as whether they were in mental health or substance abuse treatment. Lawyers called the defendants’ jobs to try to keep their clients employed. They contacted worried family members. They checked if someone was feeding their clients’ dogs.

“Everybody deserves that,” said Santa Clara County Assistant Public Defender Charlie Hendrickson. “I just think it’s so obvious, right? And it’s really an issue of wealth disparity because a person charged with the exact same thing, a client of money, is going to be walking free anyway just because they can afford bail.

“So, it’s just leveling the playing field for people that are not of means.”

The concept has been proposed at the state level, but failed its first hurdle in the Legislature this year. A bill introduced in February by Assemblymember Reggie Jones-Sawyer, a Los Angeles Democrat, would have compelled public defenders statewide to meet with clients within 24 hours, “or sufficiently before the arraignment.”

The bill’s costs would be an “unknown but potentially significant amount,” according to a legislative analysis. The bill was held in the Appropriations Committee last month and is unlikely to see a vote this year.

Fewer guilty please in California court

The Santa Clara County study involved 40 participants between January 2020 and the mid-March 2020 COVID shutdown of jail visitation. It compared the fates of people who were assigned a public defender within 48 hours of arrest to 600 other defendants booked during the same period, facing similar charges, who did not get an attorney assigned until their day in court.

Though the sample size was small and pandemic-interrupted, the researchers wrote that the data can be extrapolated.

The biggest difference? Poorer defendants made fewer guilty pleas, the researchers wrote.

The Santa Clara County program, called Pre-Arraignment Representation and Review, serves defendants facing felonies or misdemeanor domestic violence charges, though those facing manslaughter and rape charges were not eligible.

Public defenders asked their clients about their housing and their ties to the community. That allowed them time to launch investigations, contact social workers and talk to prosecutors about a deal. Even after arraignment, public defenders argued for pretrial release or a bail review.

“That also gives the judge a lot more confidence in who this person is sitting before them,” Hendrickson said. “We’ve actually totally humanized them and oriented them in the community.”

Much less time in jail

Before they even got to court, most indigent defendants have spent up to five days in jail, according to the study. The jail stay can cost them jobs, custody arrangements or housing. By the time they reach court, the pressure to make a plea deal with prosecutors is overwhelming.

Santa Clara County inmates spent an average of 29 days in jail before and after trial. Those in the pilot program who met with an attorney within 48 hours of arrest spent an average of six days in jail, before and after trial.

A similar program in San Francisco found that quickly assigning a public defender to  defendants doubled the likelihood of their release at arraignment, saving the county more than $300,000 each year in jail costs.

The inspiration behind the Santa Clara and San Francisco county programs was a California Court of Appeals decision in January 2018, later upheld by the state Supreme Court, which declared it unconstitutional to set a higher bail than a defendant can afford..

That decision hasn’t cut down on pretrial detention or bail amounts, but the program is now permanent at the Santa Clara Public Defender Office and it has expanded to serve 30% more clients.

“Changing the timing of initial contact between public defenders and clients, while jumpstarting a robust defense and providing support services, could go a long way towards improving the efficacy of public defense,” the study authors wrote, “and the equity of the criminal justice system.”


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