Initial Appearance Campaign
Overview
Most Americans believe that, after an arrest, they will quickly appear before a judge, learn about the charges against them, and have an attorney assigned to defend them. Unfortunately, this is not always true. Instead, an arrested person can wait in jail for days, weeks, or even months before seeing a judge or meeting an attorney. This project chronicles the resulting initial appearance crisis and highlights its devastating consequences. More importantly, it provides policymakers and advocates with actionable recommendations.
Mapping Initial Appearance Grades
Key Findings
The Constitution promises that every arrested person will have prompt access to the courts and an attorney. Yet, jurisdictions across the nation allow presumptively innocent people to languish in jail, alone and undefended. These injustices must not stand. Stakeholders across the criminal legal system have the power to transform the post-arrest period. Lawyers, lawmakers, judges, and advocates must take a stand for our Constitution’s principles and end the initial appearance crisis.
Explore Our Recommendations
A person should have their initial appearance as soon as possible after an arrest, but never more than 24 hours later. A prompt initial appearance informs a defendant about their rights, triggers the right to counsel, and minimizes unfair and unnecessary pretrial detention.
A defendant should have a lawyer’s help before and during their initial appearance. The lawyer should meet with the defendant, learn about their circumstances, and use that information to argue for release. The lawyer should also warn the defendant against making any statements.
If the initial appearance lawyer is assigned for that day only, an attorney should also be assigned to handle the defense. Within 72 hours, that attorney should meet with the defendant and begin to investigate the facts, file motions, negotiate a plea bargain, or prepare for trial.
An arrested person should automatically be released from jail if the jurisdiction fails to provide a timely initial appearance.
If a person is detained after initial appearance, they should have an automatic hearing, held within 72 hours, at which a defense attorney can revisit the bail conditions.
Contact Our Experts
Prof. Pamela Metzger
Malia Brink
Our Publications & Resources
Report: Ending Injustice: Solving the Initial Appearance Crisis
Most Americans expect that if they are arrested, they will quickly appear before a judge, learn about the charges, and have an attorney assigned to defend them. The reality is vastly different. After arrest, a person can wait in jail for days, weeks, or even months before seeing a judge or meeting an attorney. This report chronicles the resulting initial appearance crisis and highlights its devastating consequences. More importantly, it provides policymakers and advocates with actionable recommendations.
Metzger, P., Hoeffel, J., Meeks, K., & Sidi, S., Ending Injustice: Solving the Initial Appearance Crisis, Deason Criminal Justice Reform Center (October 2021).
Report: Grading Injustice: Initial Appearance Report Cards
Arrested people across the United States often wait in jail for days, weeks, or even months before seeing a judge or meeting an attorney. In November 2021, the Deason Criminal Justice Reform Center published Ending Injustice: Solving the Initial Appearance Crisis, a comprehensive report about this ongoing crisis in pre-trial due process. That report described the devastating consequences of delayed and uncounseled initial appearances.
Now, these Initial Appearance Report Cards offer a closer look at the laws governing post-arrest procedures in each U.S. state, the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands. While the Deason Center’s previous report provided an overview of the initial appearance crisis nationwide, the Initial Appearance Report Cards are a rigorous assessment of the laws in almost every jurisdiction in the country. These report cards reveal enormous gaps in the legal protections accorded to people accused of crimes, illuminating both the scope of the initial appearance crisis and our urgent need to solve it.
Brink, M. N., Yu, J., & Metzger, P. R., Grading Injustice: Initial Appearance Report Cards, Deason Criminal Justice Reform Center (September 2022).
Policy Brief: How to Solve the Initial Appearance Crisis
Initial appearance delays violate the United States Constitution’s promise that an arrested person—who is innocent unless proven guilty—will have prompt access to the courts, the assistance of counsel, and a fair and speedy trial.
These due process milestones begin at initial appearance: the first time an arrested person sees a judge about their case. At an initial appearance, the judge should inform an arrested person of the charges against them. The judge should also make an informed decision about whether, and under what conditions, to release a person from jail pending trial. The judge should hold this initial appearance promptly after arrest, and an attorney should advocate for the arrested person. Too often, none of these things happen.
This policy brief outlines five best legal practices for jurisdictions to honor the United States Constitution and protect the rights of all arrested people. In addition to detailing each best practice, the publication outlines strategies for success that jurisdictions can use when implementing these vital policies.
Brink, M. N., Metzger, P. R., & Yu, J., How to Solve the Initial Appearance Crisis, Deason Criminal Justice Reform Center (May 2023).
Article: Criminal (Dis)Appearance
Amid the national conversation about criminal legal reform, this article is the first scholarly work to address the initial appearance crisis. Criminal (Dis)Appearance describes an epidemic of detention-without-process and explores the legal landscape that produced it. The article describes the Supreme Court's commitment to a narrow Fourth Amendment jurisprudence and critiques the Court's rejection of early-stage criminal due process rights. The authors explain how substantive and procedural due process establish the right to a prompt and thorough initial appearance.
Pamela R. Metzger and Janet C. Hoeffel, Criminal (Dis)Appearance, 88 Geo. Wash. L. Rev. 392 (2020).
Article: Early Intervention by Counsel: A Multi-Site Evaluation of the Presence of Counsel at Defendants’ First Appearances in Court
This is the final report of an NIJ-funded evaluation of the impact of counsel at first appearance (CAFA) in Upstate New York. The evaluation demonstrates that CAFA changed bail practices in several jurisdictions. Before the CAFA program, criminal defendants were unrepresented when their bail was set. After CAFA, the frequency with which defendants were required to post bail declined, as did the amount of bail that was demanded. Ancillary observations suggest CAFA may also increase access to counsel, expedite case dispositions, and produce cost savings.
Alissa Worden, Andrew Davies, Reveka Shteynberg, and Kirstin Morgan, Early Intervention by Counsel: A Multi-Site Evaluation of the Presence of Counsel at Defendants’ First Appearances in Court, National Institute of Justice (April 2020).