Topic: Courts

In the intricate web of the American criminal justice system, the initial appearance – the first time an individual appears before a court after an arrest – often flies under the radar. Yet, this preliminary stage holds profound implications for an individual’s life and the fairness of the entire system.

Shockingly, unlike later stages of prosecution, there is no federal constitutional right to a defense attorney at these critical initial appearances, where charges are presented and crucial pretrial release decisions are frequently made. This responsibility falls upon individual states and local jurisdictions, compelling them to decide whether to provide legal counsel at this foundational point.

Our recent “Findings from Changing the Initial Appearance Process across Three Sites“, produced with support from the Safety and Justice Challenge, sheds light on the transformative potential of prioritizing and enhancing this early stage. Supported by the John D. and Catherine T. MacArthur Foundation, which spearheads the Safety and Justice Challenge to reduce over-incarceration and advance equity, this research examines the impact of defense attorney-led programs in Cook County, Illinois; Lucas County, Ohio; and Multnomah County, Oregon. The findings underscore a powerful truth: investing in initial appearances and treating them as meaningful to the process, particularly by ensuring access to defense counsel, improves due process and makes the system more fair for all individuals entering the system.

The absence of legal representation at initial appearances can leave individuals bewildered and at a severe disadvantage. Navigating the complexities of the criminal legal system, understanding the charges, and arguing for pretrial release are daunting tasks, especially within the short timeframe of typically 24 to 36 hours after booking. As a judge from Multnomah County observed, providing defense counsel early “improves their due process – I think it helps improve procedural justice…We encourage our judges to give explanations of their decisions, and to help people understand what’s happening to them.” When defense attorneys are present, they can explain the process, inform individuals of their charges, and begin to gather crucial information relevant to pretrial release decisions, all within a confidential setting. This stands in stark contrast to the often rushed and public information gathering that occurs when an attorney meets their client for the first time in the courtroom at the arraignment hearing.

The positive impacts of treating initial appearances as meaningful extend far beyond individual due process. The report highlights significant positive secondary impacts, including increased rates of pretrial release, less restrictive release conditions, more efficient use of jail bed space, and a fairer system by reducing racial and ethnic disparities.

• By having defense attorneys present and prepared at initial appearances, they can advocate more effectively for the least expensive and least restrictive pretrial release possible. In Multnomah County, the study found that individuals who met with a public defender prior to arraignment were significantly less likely to have bail ordered and received fewer total judicially ordered conditions. In fact, they were 79 percent more likely to receive a less severe pretrial release overall.
• This shift towards presumptive pretrial release, supported by informed defense attorneys, directly contributes to reducing the overreliance on costly and often unnecessary pretrial detention.
• Moreover, the research offers promising evidence that these defense attorney-led strategies can make the system more fair by reducing racial and ethnic disparities in pretrial release outcomes. Black and Brown individuals are disproportionately impacted by the presumption of pretrial detention and often face more restrictive release conditions. However, in Multnomah County, Black and Brown individuals who met with a defense attorney prior to arraignment were statistically less likely to have bail ordered at all compared to their White peers. This suggests that when defense attorneys have more information to present and can build trust with the court, it helps mitigate potential biases in release decisions.

The work of defense attorney agencies in the three studied communities demonstrates that treating initial appearances as a meaningful and important stage yields significant benefits. By providing earlier access to counsel, collecting more information about individuals prior to their hearing, and ensuring representation at this stage, they are moving away from an “assembly-line approach to justice” and towards a system that prioritizes due process and equity.

The lessons learned from Cook, Lucas, and Multnomah counties offer valuable insights for jurisdictions across the nation. Ensuring the presence of defense attorneys at initial appearances is a fundamental step towards a fairer system. However, as the report emphasizes, this presence is most effective when coupled with efforts to gather comprehensive information about the individual before their arraignment. Strategies such as embedding case managers or allowing defense attorneys dedicated time to meet with individuals prior to their arraignment can significantly enhance the quality of representation and lead to more just outcomes.

Ultimately, “Changing the Initial Appearance Process across Three Sites” underscores that the initial encounter with the criminal justice system sets a crucial tone. By prioritizing due process at this stage, we not only uphold fundamental rights but also pave the way for more equitable and effective outcomes, reducing unnecessary incarceration and fostering safer communities. The decision to provide defense counsel at initial appearance is not merely a matter of legal obligation; it is a commitment to justice, fairness, and a more humane criminal legal system.

Criminal legal reformers are increasingly adopting a more holistic conception of safety, one where the goals of reducing crime, violence, and recidivism are necessary but not sufficient. This means extending the parameters of public safety investment beyond the traditional boundaries of the criminal legal system.

A new policy brief from the Center for Justice Innovation makes the case for why investment “upstream” of justice-system involvement—investment in and tailored to communities—is criminal legal reform and promotes community safety.

Los Angeles County, for example, may have quietly rolled out the next generation of criminal legal reform. Ballot Measure J, which was approved by voters in 2020 and is now the Care First Community Investment Spending Plan (CFCI), mandates that at least 10 percent of the county’s locally-generated, unrestricted funds—estimated to be between $360 million and $900 million in the first year alone—go toward direct investment in social services and community-based alternatives to incarceration. In establishing CFCI, the county declared it “time to structurally shift…budget priorities and reimagine Los Angeles County” to “address racial injustice, over-reliance on law enforcement interventions, limited economic opportunity, health disparities, and housing instability.”

If implemented well, CFCI will serve as a vision of community safety as part of a larger push for community justice. This vision runs counter to the status quo in most cities and counties, and it requires deeper investments in community-led programs and preventative services upstream from system-involvement.

Despite the conventional wisdom that contact with the criminal legal system deters crime, research tells a more complicated story. Even fleeting system-involvement can increase a person’s future risk of an arrest. As for longer periods of confinement, a recent meta-analysis of more than a hundred research studies concludes—as a matter of “criminological fact”—that incarceration has “no effect on reoffending or slightly increase[s] it when compared with noncustodial sanctions.”

Researchers have found that the bulk of the needs driving system-involvement include the need for familial support, stable employment, educational opportunities, and strong community ties—all needs most meaningfully addressed within the community.

A recent comprehensive review of evidence-backed strategies for reducing community violence cites a shortlist of effective measures, including improvements to neighborhood environments, efforts to promote anti-violence social norms, and youth engagement programs. These kinds of upstream strategies will not look the same in every community, and there is powerful evidence to support this locally-tailored approach.

A team led by Princeton University sociologist Patrick Sharkey found that “every 10 additional organizations focusing on crime and community life in a city with 100,000 residents leads to a nine percent reduction in the murder rate, a six percent reduction in the violent crime rate, and a four percent reduction in the property crime rate.”

And then there are the cost savings. In New York City, the comptroller calculated that the cost of jailing one person for one year was a staggering $556,539. If you are imagining the good that could be done if those public sums were redirected, consider that it costs less than one-thirteenth of that amount—$42,000—to provide supportive housing with services for the same period. In establishing CFCI, Los Angeles estimated that the almost $400 million it was spending annually to house roughly 900 youth in juvenile facilities could fund a full year’s tuition for more than 30,000 in-state students at the University of California, Los Angeles.

Yet across the country, city and county governments continue to focus on shoring up responses to crime rather than minimizing the need for these responses in the first place. With few exceptions, governments at all levels allocate the lion’s share of their budgets to law enforcement agencies, shouldering them with almost exclusive responsibility for community safety—along with sizeable investments in other “downstream” agencies such as pretrial services and probation departments. Even with compelling research evidence in hand, reformers have struggled to broaden the gaze of governments to include preventative intervention as a credible and effective use of public safety dollars.

There are encouraging signs, however. The City of St. Louis recently established an Office of Violence Prevention. In Los Angeles, Mayor Karen Bass has pledged to “hold people who commit crimes accountable,” but also “to take real steps to prevent crime from happening in the first place.” She is investing in the social and economic conditions impacting families via a new Office of Community Safety. In New York City, through a range of initiatives in historically disinvested communities, the Mayor’s Office of Criminal Justice is working to “democratiz[e] public safety while removing systemic barriers that many residents have and continue to face.”

But we must go further. In pursuit of lasting impact, reformers—and their counterparts in government and philanthropy—must swim upstream toward the waters of community-led innovation. Does this approach to reform make the work more complex and less conducive to easy replication? Does it shift considerable power from system actors to community members? Will it change the world for the better? Yes, yes, and yes.

The last several years have ushered in a seismic shift to Los Angeles County’s criminal justice landscape. Home to the world’s largest jail system, LA County achieved an unprecedented 25 percent decline in its jail population–the largest in the nation during the height of the COVID-19 pandemic. While the overall number of people in jail decreased, the percentage of people of color and people with mental health needs behind bars in LA increased. This changing composition mirrored a national trend and illustrated a key lesson: without a parallel effort to promote racial equity and provide safe, community-based care for people who need it, reducing jail populations may actually worsen disparities.

To address this, LA County—a grantee in the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge—announced a new vision of “Care First, Jails Last” and deepened its investment in community-based support for vulnerable populations and alternatives to incarceration. LA County also launched the Justice, Care, and Opportunities Department to consolidate most of these efforts under one roof.

As members of the Center for Justice Innovation (The Center) team, we are technical assistance partners in the Safety and Justice Challenge and worked with LA County to expand their alternatives to incarceration with particular emphasis on equity. Inspired by the learnings from this work—and grounded in our long history of launching and operating diversion programs—our West Coast Initiatives team authored a new report. The report offers concrete insights to inform the development of equitable diversion programming around the country. For practitioners seeking to create diversion programs, this document offers advice on designing early alternatives to incarceration, leveraging data to identify and connect with target populations, and working towards racially equitable outcomes.

We collaborated with LA County to launch two initiatives—the Rapid Diversion Program, which is court-based, and the Prefiling Diversion Program, which is based in law enforcement stations. Both programs aim to reduce the use of jail by connecting participants to safe, appropriate, and community-based care.

While successful diversion programs can safely reduce the use of incarceration, special care must be taken to ensure that these programs are carried out in an equitable way. We hope the insights of the report can provide guidance for developing diversion initiatives that bridge the gap between legal systems and communities while caring for vulnerable populations.

The first section of the report offers tips for developing the essential components of an early diversion program. Recommendations include:

• Create infrastructure to divert people at the early stages of a case.
• When determining eligibility criteria, prioritize the client profile over charges. When creating diversion programs, justice partners typically determine charge types to include and exclude in programs. Instead, we suggest program partners determine the profile of people they want to serve—for example, mental health, people with three or more arrests/system contacts, young people, race and ethnic groups that are disproportionately represented, etc.—and let that guide program development.
• Make charge-based exclusions (sex offenses) presumptively instead of categorically ineligible. This means that instead of having categorical exclusions based on what people may be charged with, presume people are eligible for programs and, when someone is facing a presumptively ineligible charge, allow for discussion on a case-by-case basis.
• Even within the same municipality, recognize that each diversion site may operate differently and have a distinct culture.
• Seek out cross-sector collaborations and expertise in the program planning phase.

The opportunity to provide community-based care to people with unmet social service needs can happen at stages that far precede a criminal conviction—any time before a criminal case is adjudicated, and indeed, even before criminal charges are filed. For example, LA’s Prefiling and Rapid Diversion Programs utilize police stations and courts as potential off-ramps from the traditional legal system path.

Both programs pursue a common objective: to expand early interventions for people with unmet needs rather than continued detention or release without any supportive resources. To accomplish this, LA located behavioral health care professionals in the jails and courthouse. For Prefiling Diversion, this meant physically converting unused breathalyzer rooms and offices into spaces for care by placing service navigators in the station. Service navigators find programs and help people enroll in them and understand how to get connected to the program (i.e. when and where to go for intake, whom to call for questions). The Rapid Diversion Program embedded pairs of service navigators and clinicians in courthouses.

Four roles can improve the diversion infrastructure:

• Mental Health Clinician—screens candidates for behavioral health conditions and appropriate level of services for the behavioral health program someone will need.
• Service Navigator—identifies healthcare and social service needs, finds local programs and providers, and connects participants to these organizations and services.
• Case Manager—supports participants one-on-one. Often the main point of contact for program participants, case managers provide referrals for continuing needs, such as education, employment resources, benefits, and housing, and help participants stay engaged in the program.
• Driver—takes participants to their agreed upon destinations, oftentimes directly from the police station or courthouse to appointments, referred services, and future court dates. This is especially important for jurisdictions where transportation equity is a challenge. Although the driver’s primary role is to transport program participants, the driver frequently interacts with program participants and serves as an additional level of support.

Building these roles into any diversion program—and locating these professionals at the booking station or courthouse where possible—can help ensure that people with specialized knowledge connect participants to resources in a coordinated way. Interactions with program staff are also supportive touchpoints, which is made possible by hiring staff who understand the needs of participants and want to help. This includes people with lived experiences (including families impacted by the criminal justice system), previous program graduates, and people with clinical backgrounds. Remaining intentional about including and staffing each role, especially case managers and drivers who interact with participants frequently—can make even the mandatory components of diversion programs motivational.

The second section of the report includes recommendations for using data to promote equitable practices for diversion. The report stresses the need for prioritizing data collection as a critical tool in ensuring equity. Data analysis can help to identify underlying needs and shape the design process prior to program launch. After launch, a consistent flow of data among partners is necessary to sustain the program and gives planners the ability to adjust the program as needed.

Recommendations include:

• Use relevant and detailed data at the planning stage to ensure equity and effectiveness of programming.
• Review program performance data on an ongoing basis to ensure the right people are being served.
• Make data planning a team effort.
• Clarify roles and responsibilities around data management.

When launching a program meant to achieve equity, program planners should learn how to meet the needs of the desired population. Instead of looking at the types of charges to divert, examine who is being charged and any trends that can inform the demographic to serve (e.g. people who are unhoused but arrested for quality of life offenses, or people arrested on a drug offense but who are excluded based on prior drug convictions). Having a better understanding of common issues—not just charges—that people face can radically shape programming.

In addition to using data on the front end of design, the report recommends reviewing program performance data on an ongoing basis to ensure program efficacy and equity. Recurring reviews should include program staff who can speak to participants’ growth in the programs, especially to help the program collaborators understand ways to improve and sustain the program so it continues to have its intended impact.

Many partners in Los Angeles County make the Prefiling and Rapid Diversion Programs possible, including the LA County’s Justice Care, and Opportunities Department,the Offices of the Los Angeles County Public Defender and Alternate Defender, the Los Angeles City Attorney’s Office, and Los Angeles County District Attorney’s Office, the Department of Mental Health, Project 180, and Exodus Recovery, Inc.