Federal district court in Arkansas rules defendants have a right to an attorney at bail hearings  

Pleading the Sixth: The United States District Court for the Western District of Arkansas found that indigent defendants have a constitutional right to counsel at the bail determination, which is part of Arkansas’s first appearance. In coming to this decision, the court utilized both the facts of the case and evidence-based studies that highlight the relationship between an attorney at bail hearings and case outcomes.  

The United States District Court for the Western District of Arkansas decided last month that indigent defendants have a constitutional right to appointed counsel during bail hearings at first appearances. The case, Farella v. Anglin, brought a class action on behalf of all pretrial detainees who have or will appear before District Judge Anglin of Benton County for a bail determination, and who are indigent and without counsel. While Judge Anglin is specifically named as a defendant, the decision ripples to all Benton County bail hearings.  

Abigail Farella, one of the named plaintiffs, was brought in front of Judge Anglin two days after her arrest for her first appearance (known in Arkansas as a “Rule 8.1 hearing”). Her bond was set at $10,000 cash or corporate surety without an attorney. After determining bail, the judge found her indigent and appointed counsel. Ms. Farella remained in jail for over five weeks because she could not pay her bond. As a result of her pretrial detention, Ms. Farella lost her job, house, and car. The lack of counsel at Rule 8.1 hearings is the norm in Benton County.  

The right to counsel attaches at the first appearance 

The U.S. Supreme Court ruled in Rothgery v. Gillespie County that a person’s Sixth Amendment right to an attorney begins the moment that right attaches. Attachment, the Court explained, is the first appearance before a judicial officer where the defendant “learns the charge against him and his liberty is subject to restriction” – this “marks the initiation of adversary judicial proceedings.”   

Once the right to counsel attaches, a defendant is entitled to counsel at every “critical stage” of the criminal proceeding. The U.S. Supreme Court defines a “critical stage” as a proceeding where “counsel’s absence might derogate from the accused’s right to a fair trial.”  

The U.S. Supreme Court has yet to decide whether a bail hearing is a critical stage. So, the question for the federal district court in Farella v. Anglin was: is the Rule 8.1 bail hearing in Arkansas’ state courts a critical stage that requires representation by an attorney?  

The court ruled – yes, it is. 

Bail hearing in Arkansas’ state courts is a critical stage 

The court laid out two factors for evaluating if a proceeding is a critical stage: (1) is the bail hearing a “trial-like confrontation?” and (2) is the hearing so consequential that it may influence or determine the case outcome?  

As to the first factor, the court found that even though the bail hearing does not involve direct or cross examination, it is nevertheless trial-like because the prosecution makes a bail recommendation to the court that includes the defendant’s conditions of pretrial detention or release. However, the defendant is “denied a parallel opportunity to respond with the assistance of counsel,” which “does violence to the defendant’s constitutional guarantee[ ] that he need not stand alone against the State at any stage of the prosecution.” 

In deciding whether an attorney at the bail hearing would impact the case outcome, the court turned to empirical research. The court cited Professor Douglas Colbert’s study in Baltimore in the late 1990s, which found a strong correlation between representation by counsel at bail hearings and the likelihood that the bail was reduced to an affordable amount. The court then applied Professor Colbert’s study in conjunction with Professors Paul Heaton, Sandra Mayson, and Megan Steven’s work in Harris County, Texas, in 2017, which found that pretrial detention significantly impacts trial outcomes, regardless of actual guilt or innocence. Together, these two studies allowed an evidence-based conclusion that counsel at bail hearings impacts trial outcomes, making it a critical stage. 

You can find the full court opinion here.