Ending Arkansas’ First Appearance Crisis
Overview
Arkansas law is clear: every arrested person has the right to an attorney’s help the first time they see a judge. But across the state, people often face a judge at first appearance without a lawyer by their side. Even worse, a shortage of attorneys means people sometimes wait months for a lawyer’s help. The Constitution promises that every person in jail will have access to the courts and to counsel. Yet far too often, Arkansas allows people to languish in jail alone, afraid, and undefended.
Key Findings
Like 25 other states, Arkansas promises that an arrested person will be represented at first appearance. Rule 8.2 of the Arkansas Rules of Criminal Procedure requires that arrested people who are indigent receive the assistance of counsel at their first appearance. But Arkansas is failing. Despite Rule 8.2, Arkansans are commonly forced to stand alone before a judge at first appearance. Often, they do not see a lawyer until arraignment, which can occur months after their first appearance. During these months, arrested people—who are presumed innocent—can sit in jail without knowing when they will next be brought to court or how to effectively advocate for their release.
Explore Our Recommendations
No one should be forced to represent themselves at first appearance. Every arrested person must be represented by counsel. Arkansas rules already guarantee this right to counsel—now Arkansas must deliver on this promise.
Even where counsel is provided at first appearance, that lawyer often only represents that person for that hearing. Trial counsel is assigned later. This change of counsel can create a gap—leaving the person to sit in jail unrepresented for months. To avoid gaps in representation, Arkansas should require that courts appoint trial counsel within 72 hours of arrest.
Arkansas must ensure that there are enough public defenders to guarantee due process to all Arkansans. Policymakers should improve public defender pay, create retention incentives, and fund innovative recruitment programs.
Contact Our Experts
Prof. Pamela Metzger
Malia Brink
Larry Eugene Price Jr.’s Story
Larry Eugene Price, Jr., was well known to Fort Smith police officers when he burst into the police station on August 19, 2020. Mr. Price was homeless and had a long history of mental illness. He often visited the police station, agitated, multiple times a day. On this day, he was shouting incoherently. At some point, Mr. Price “held out his plainly empty hand as if he was holding a gun and used his index finger to pull an imaginary trigger.” The police arrested Mr. Price and booked him on a felony charge of making terroristic threats.
Five days later, Mr. Price appeared before a judge for his first appearance.He did not have an attorney. The judge set his bail at $1,000. With a cash payment of 10%—just $100—Mr. Price could buy his pretrial release. But he could not pay $100. As a result, he sat in jail for more than a year.
Mr. Price’s mental health deteriorated, and he stopped eating. He died of starvation in his cell on August 29, 2021. At the time of his arrest, Mr. Price weighed 185 pounds. At death, he only weighed about 90 pounds.
Dive Deeper
Continuous Representation
Trial counsel is assigned later. This change of counsel can create a gap—leaving the person to sit in jail unrepresented for months. Arkansas should ensure continuous representation. The attorney who represents an arrested person at first appearance must represent that person until defense counsel enters an appearance. Continuous representation ensures that the judge can always identify the individual lawyer responsible for each case.
Project Highlights
Loss of income
Loss of Housing
Harm to families and children
Trauma and violence in jail
Our Publications & Resource
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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).
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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).
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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).
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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).
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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).