What Difference Does a Lawyer Make? Impacts of Early Counsel on Misdemeanor Bail Decisions and Outcomes in Rural and Small Town Courts

Abstract

Recent court decisions and state legislation have highlighted the significance of ensuring that criminal defendants are represented by counsel at their first appearances in court, where judges make critical decisions on pretrial release, bail, and detention. Yet many jurisdictions do not routinely provide counsel to indigent defendants at this stage. We hypothesize that when defendants are represented by counsel at first appearance (CAFA), they are more likely to be released on recognizance, are less likely to have high bail set, and are consequently less likely to be jailed pending disposition. We explore the impact of lawyers’ presence by comparing pretrial decisions and bail outcomes across samples of misdemeanor cases in three rural counties in upstate New York: cases with and without CAFA. We find that these counties saw shifts in decisions or outcomes. We consider the implications of these findings for future research, court practices, and public policy.

Keywords

courts criminal justice policy criminal court justice program evaluation bail decisions misdemeanors rural courts

Introduction

In 2012, addressing the American Bar Association, Attorney General Eric Holder (2012) said, “Too many defendants are left to languish in jail for weeks, or even months, before counsel is appointed.” His declaration highlighted a long-standing concern among policy makers, court officials, and scholars: the lack of legal representation at early and potentially critical stages of criminal adjudication. Investigations of the impact of pretrial decisions on case outcomes suggest that decisions on setting bail and the terms of pretrial release may have collateral consequences for defendants’ employment and families, as well as implications for case outcomes and sentences. Furthermore, there is some evidence that judges’ decisions are influenced by prosecutors’ recommendations, particularly in the absence of defense counsel. And yet the absence of counsel at first appearance (CAFA) remains the norm rather than the exception in many courts.

We investigate the impact of three counties’ initiatives to provide CAFA: Our inquiry is organized within three parameters. First, we examine the caseloads of indigent defense providers, whose clients are least likely to have representation at first appearance.¹ Second, we evaluate decisions made in low-level cases, misdemeanors, and violations. These cases are much more numerous than felonies, yet have been the subject of far less research despite growing evidence that many defendants, engaged even at this level with the justice system, face long-term consequences from pretrial detention and conviction. Third, we focus on communities in which the provision of CAFA is most challenging: rural and small-town courts that have limited staff, resources, and flexibility, and whose constituencies and courts are scattered across broad geographic areas.

Contextualizing Pretrial Decisions and the Role of Counsel

Bail Practices, Policies, and Consequences

The custom of requiring financial securities as a condition of pretrial release predated the Norman Conquest in medieval England (Schnacke, Jones, & Brooker, 2010). By the time European emigrants were importing British bail practices into North American colonies, common law had incorporated the concepts of habeas corpus and excessive bail into their new courts (see Carpenter, 1902; Duker, 1977; Schnacke, 2014). By the 1800s, criminal courts in the states had effectively codified bail practices to ensure the right to bail to most defendants (Carbone, 1983), and the ostensible justification for bail was ensuring their presence at future court appearances. Following the federal Bail Reform Act of 1966, many states adopted laws that made release (on recognizance and under supervision) the default in noncapital cases. In subsequent decades, however, increases in crime rates and public concern about crime resulted in the federal Bail Reform Act of 1984 as well as a proliferation state laws that incorporated consideration of public safety into bail justifications.²

The discretion inherent in the bail decision, as well as the general model of monetary bail, has been the subject of debate for over 50 years (Foote, 1965). Goldfarb (1965) noted that where bondsmen are primary providers of sureties, their discretion may replace that of judges in determining who is or is not released (see also Pannell v. U.S., 1963). Goldkamp and Gottfredson were among the first to argue, in 1979, that indigent defendants in particular were disadvantaged by money bail systems, a concern echoed recently by the U.S. Department of Justice (DOJ) in two recent cases concerning these matters (Statement of Interest of the United States in Varden v. City of Clanton, 2015; amicus curiae brief supporting plaintiff in Walker v. City of Calhoun, 2016). In both of these cases, the U.S. DOJ asserted that “[i]ncarcerating individuals solely because of their inability to pay for their release, whether through the payment of fines, fees, or a cash bond, violates the Equal Protection Clause of the Fourteenth Amendment” (Statement of Interest of the United States in Varden v. City of Clanton, 2015, p. 1). In the next sections, we review research that attempts to account for variation in bail decisions, and that documents the consequences of those decisions for defendants.

Correlates and Consequences of Bail Decisions

Most empirical studies of bail decisions (both the decision to set bail, and how much bail to require) reveal that the seriousness of charges is correlated with decisions (Frazier, Bock, & Henretta, 1980; Goldkamp & Gottfredson, 1979; Gottfredson & Gottfredson, 1990; Holmes, Hosch, Daudistel, Perez, & Graves, 1996; Phillips, 2004 see Devers, 2011). There is also evidence that prior record is associated with these outcomes (Sacks, Sainato, & Ackerman, 2015). In New York, as in many other states, these two factors are legitimate grounds for bail decisions (NY CPL 530.20). Furthermore, it appears that judges take into account employment, an indicator of community ties (Bridges, Crutchfield, & Simpson, 1987; Lizotte, 1978; Maxwell, 1999). Some studies have found that women get slightly more favorable bail decisions than do men (e.g., Turner & Johnson, 2006), which may be due less to judges’ gender biases than to the fact that many arrested women are caregivers to small children (see Free, 2002). But research has also uncovered evidence that in some courts, these decisions reflect disparities based on race (e.g., Ayres & Waldfogel, 1994; Free, 2002; Johnson & Johnson, 2012; Patterson & Lynch, 1991; Sacks et al., 2015; Turner & Johnson, 2005; but see Katz & Spohn, 1995) and ethnicity (Ayres & Waldfogel, 1994; Demuth, 2003; Free, 2002; Jones, 2013, pp. 938-945; Turner & Johnson, 2005).

Finally, judges may be guided by their own proclivities as well as those of other court actors. Judges often follow prosecutors’ recommendations (Dhami, 2002; Ebbesen & Konecni, 1975; Phillips, 2004; Varma, 2002). Researchers have also observed that they may be influenced by defense lawyers (and their professional contexts). Notwithstanding stereotypes of burned out, overworked, and even incompetent public defenders, there is some evidence that, compared with privately retained counsel, they secure better bail outcomes for their clients (Sacks et al., 2015; Turner & Johnson, 2006; Williams, 2014). Current movement to ensure counsel’s presence at first appearance is in part justified by the perceived need to balance prosecutorial influence in an adversarial hearing.

How many defendants are released, bailed, or remanded? Reports vary widely across charge types and jurisdictions. Devers (2011) summarizes research on federal (Harrison & Beck, 2006) and state (VanNostrand & Keebler, 2007) courts that reported detention rates of approximately 60% in federal courts, and up to 40% in state court systems. Research in New York City found that judges set bail in 25% of misdemeanor cases (that are not disposed at arraignment), and that 72% of bails were set at US$1000 or less (Human Rights Watch, 2010).

How do pretrial decisions affect defendants? Some studies report that inability to secure release or make bail is associated with higher rates of guilty pleas (The Bronx Freedom Fund, 2016; Cohen & Reaves, 2007; Didwania, 2017; Foote, 1965; Heaton, Mayson, & Stevenson, 2017). This may result from defendants’ acquiescence to a guilty plea when their only alternative is continued indefinite detention (Foote, 1954; Maxwell, 1999; Smith & Maddan, 2011). Lawyers whose clients are jailed may face more challenges in preparing their defenses. Compared with released or bailed defendants, detained defendants also face higher probabilities of jail or prison sentences (Goldkamp, 1980; Holmes & Daudistel, 1984; Sacks & Ackerman, 2014; Williams, 2003). Even prior to conviction, jailed defendants risk the loss of employment and housing, disruption of families, and exacerbation of medical and psychological conditions (Allan, Allan, Giles, Drake, & Froyland, 2005; Clark, 2016; Levin, 2008; Travis, 2005; Western, 2002). Paradoxically, a brief period of pretrial detention may even be associated with failures to appear and rearrests (Lowenkamp, VanNostrand, & Holsinger, 2013).

The Role of Counsel in First Court Appearances

Much research and policy discussions of bail focus on judges and prosecutors, particularly their potential biases against defendants. Until recently, the role of defense attorneys at this stage has received little attention, perhaps because the perfunctory nature of first appearances in well-studied urban courts leaves little room to imagine how lawyers could improve their clients’ outcomes or, more generally, the process itself. But advocates for provision of CAFA argue that lawyers can prevent clients from making incriminating statements (Ho, 2013) and can ensure that clients are knowledgeable about the court process and the legal and practical implications of choices and outcomes (Chin & Holmes, 2002; Ellmann, Gunning, Shalleck, & Dinerstein, 2004). Furthermore, lawyers can improve clients’ capacity to assist their own defenses (Kalhous & Meringolo, 2012), and advocate for release on recognizance or manageable bail (Colbert, Paternoster, & Bushway, 2002) as well as pretrial services (Sixth Amendment Center & Pretrial Justice Institute, 2014). There have been few empirical studies of the impact of having CAFA, but those that have been published offer some support for these expectations (Colbert, Paternoster, & Bushway, 2002; Fazio et al., 1984; Zimerman & Tyler, 2010).

Yet while legal scholars and reform advocates maintain that access to legal counsel at these stages is essential, in many states, neither law nor local practices ensure such representation. Rothgery v. Gillespie County (2008) stated that “the right to counsel guaranteed by the Sixth Amendment applies at the first appearance before a judicial officer at which a defendant is told of the formal accusations against him and restrictions are imposed on his liberty.”³ However, states’ adoption of this principle has been uneven. As of 2011, according to the National Right to Counsel Committee, 14 states had a legal guarantee of representation at first appearance, eight denied such a right, and the remainder had practices that varied across jurisdictions (National Right to Counsel Committee, 2015; see also Colbert, 2011; De Silva-de Alwis, 2002; Wallace & Carroll, 2003).⁴

New York is among the states that were classified as having a right to CAFA, but its courts illustrate the ambiguity and inconsistency with which the right is observed. In statewide surveys, only 5% of city court judges claimed that defendants “never” appear without counsel (NYS Office of Court Administration & NYS Office of Indigent Legal Services [ILS], 2011), and 90% of town and village judges reported that counsel is “seldom or never” present at off-hours (and only present at about half of regularly scheduled arraignment sessions; Curtis & Davies, 2014). As documented in recent research in upstate New York, the scarcity of lawyers in early appearances is all but guaranteed by New York’s fragmented court systems, poorly and disparately funded indigent defense programs, and a lack of reliable infrastructure and protocols to bring counsel and defendant together in a timely fashion (Worden, Davies, Shteynberg, & Morgan, 2017).

Ensuring that counsel, even if willing and available, can be present at first appearances requires cooperation between judges and law enforcement officers. In some courts, prosecutors, accustomed to providing bail recommendations by phone, feel greater obligation to make a physical appearance when they know a defender will be present, further complicating efficient scheduling. Arraignments typically occur in the jurisdiction in which the alleged offense was committed. Particularly in rural areas, where courts are in session only a few times each month, arraignments occur on an ad hoc, “as needed” basis, leaving scant opportunity for coordinating all parties. Hence a lack of time, resources, and collaboration can stymie efforts to ensure that defendants receive counsel at arraignment, and overcoming these obstacles requires careful attention to the specific needs and constraints within communities (Sixth Amendment Center & Pretrial Justice Institute, 2014; Worden et al., 2017).

To summarize bail decisions are, and have long been, about more complex calculations than the risk of defendants’ failure to appear, yet there are few constraints on judges’ discretion. While bail decisions signal the start of an adversarial process with substantial legal and personal consequences for defendants, in many courts the adversaries—prosecutors and defense lawyers—do not directly address each other or the judge at the first appearance.

Hypotheses

We investigate the significance of having counsel present at first appearance or arraignment on judges’ bail decisions in misdemeanor arrests. In the analyses below, we compare patterns of bail decisions and outcomes from periods before, and immediately after, the adoption of CAFA programs in the three counties. We hypothesize the following:

Hypothesis 1: When defendants are represented at first appearance, judges will release more defendants on recognizance or under supervision;

Hypothesis 2: When defendants are represented at first appearance, judges will set lower bail amounts for those who receive bail;

Hypothesis 3: When defendants are represented at first appearance, those for whom judges set bail will be more likely to make bail and avoid detention;

Hypothesis 4: When defendants are represented at first appearance, those for whom judges set bail will serve fewer days in jail prior to the dispositions of their cases.

We recognize that these predictions are more complex than they first appear. Even if CAFA has the effects on pretrial outcomes that reformers predict, they may nonetheless manifest differently across courts. For instance, judges may continue to require bail at their customary rates but may adopt lower rates of bail in misdemeanors. They may release more defendants on recognizance, and as a result, their bail levels may appear the same or even higher after CAFA was adopted (because the nonreleased defendants represent more risks in their views).

Research Methods, Data, and Measures

The Research Setting: Three Upstate New York Counties

To test these hypotheses, we analyzed data culled from case records in three counties’ indigent defense programs and jails, during time periods both before and immediately after the implementation of programs that specifically targeted provision of CAFA. These programs began under the auspices of a state-funded program specifically targeted at CAFA. In 2011, New York created the ILS, an agency whose mission is “to monitor, study and make efforts to improve the quality of [indigent legal] services provided pursuant to article eighteen-B of the county law” (New York Executive Law Article 30, Section 832(1)). In 2012, ILS disseminated a request for proposals from counties, focused on the creation and implementation of programs that would provide CAFA. Half of those counties eventually received funding for their programs, and the three counties observed for this research were among them.⁵ The three were selected because they are representative of the diversity of needs, program types, and CAFA initiatives across the state. Like much of upstate New York, they are rural counties, and their defender programs have different objectives, courthouse contexts, and caseloads.

As is the case in almost all states, New York law stipulates an array of factors that should be taken into consideration during bail decisions, including judgments on the level of control needed to ensure reappearance, defendants’ character, reputation, habits, mental condition, employment, financial resources, family ties, length of time in the community, previous engagement in the criminal justice system, strength of evidence, and the severity of any potential sentence (New York Criminal Procedure Law, §510.30, 2012). State law also requires that arrestees be arraigned in the jurisdiction of arrest (or an adjacent jurisdiction if more convenient; New York CPL, Title H, §140.20, 2014). In many parts of upstate New York, this means that arrestees will be arraigned in village and township (or “justice”) courts (courts with general misdemeanor jurisdiction outside of incorporated cities); for misdemeanors and violations, the magistrates who preside over these courts will see such cases to completion. Magistrates are elected, and though required to take some legal training before taking office, they are not subject to educational or professional credentialing. In contrast with New York’s image as an urban state, in fact outside New York City, over 75% of residents live in these towns and villages rather than in cities.

The CAFA programs in the counties that we studied, which we shall identify as Lake, Bleek, and Hudson Counties, provide representation in courts serving small cities, townships, and villages.⁶ As noted previously, aside from universal constraints such as fixed resources, these jurisdictions face challenges in implementing court reforms such as CAFA. Public defender programs have small staffs and assigned counsel programs have limited rosters of qualified attorneys; many justice courts meet only a few times each month and they are scattered across large geographic areas. In contrast with urban areas where court offices, security personnel, and prisoner transport are concentrated and engaged as much as 24 hr a day, rural and small-town courts must strategize about practical as well as political obstacles to coordinating the presence of lawyers at arraignment.

Bleek county

About a third of Bleek County’s 80,000 residents live in its county seat (the only incorporated city) and the remainder are scattered across about 25 towns and villages. The county is one of several in upstate New York that rely exclusively on an assigned counsel program to provide representation to indigent clients. The Bleek County CAFA initiative was developed by the assigned counsel program administrator and in mid-2014 began representing clients in the City Court. We identified the pre-CAFA sample as those cases that arraigned in City Court and were assigned to an attorney by the program office during the 5 months before the program’s launch date. We identified as the CAFA sample those cases that were arraigned during the 4 months following the program start. Bleek’s pre-CAFA sample was 156 cases and its CAFA sample was 68, reflecting the small caseload of the City Court and the briefer data collection period.

Lake county

Lake County is a mostly rural county of approximately 100,000 residents. About a quarter of its population lives in one of its two small cities and the remainder live in the county’s approximately15 townships and villages. Like most counties in upstate New York, this county relies primarily on an Office of the Public Defender, with a Conflict Defender and Assigned Counsel Program Panel as secondary agencies, to provide counsel to the indigent in criminal proceedings.

The Chief Public Defender developed and implemented the Lake County CAFA initiative after a city court judge, in collaboration with the county sheriff, began holding consolidated weekend arraignment sessions to more efficiently process cases from outlying town and village courts. A year later, the second city court began weekend sessions to arraign defendants arrested within that city (and occasionally from an adjacent township). We identified pre-CAFA and CAFA samples from both courts. In each, the pre-CAFA sample includes cases opened during the 3 months before the Public Defender’s participation in consolidated arraignments; the CAFA sample includes arraignments for the subsequent month and a half. Lake County’s pre-CAFA and CAFA samples were 335 and 153, respectively, reflecting the larger jurisdiction of the program but also constrained by the fact that cases that involved conflicts were not represented by the Public Defender’s office.

Hudson county

Approximately 85% of Hudson County’s 300,000 residents live in 30 rural towns and villages, and the rest live in two small cities. The county relies primarily on a Public Defender office, with backup from a Conflict Defender. The Chief Public Defender developed the Hudson CAFA initiative with extensive input from the local council of criminal justice agencies. At the time of the grant solicitation, the office already routinely provided CAFA to any defendants brought into court on weekdays in the larger of the two city courts; their proposal called for extending CAFA to the smaller city court and the more populated towns and villages 24 hr a day, 7 days a week. Because Hudson County launched their CAFA program at the end of calendar year 2013, our pre-CAFA sample includes all cases, excluding those from the larger city court, for 1 year, during calendar 2013. The CAFA sample includes all noncity cases opened in calendar year 2014. Hudson County has much larger samples, given that this county has the largest caseload of the three (2,336 pre-CAFA cases and 1,761 CAFA cases), and we were able to capture two full years of data.

Data and Measures

Table 1 provides descriptive information about the three counties’ pre-CAFA and CAFA sample, for purposes of comparing aggregate case characteristics across the two periods. We note that information on defendants’ race, ethnicity, and sex were missing for substantial numbers of cases in some subsamples: for instance, all three are missing in over 25% of the pre-CAFA and CAFA samples in Bleek County, because that information was not entered in lawyers’ records and hence was only available for the subset of defendants who had records in the county jail database.

Table 1.

Case Characteristics in Three Programs.

	Bleek county		Hudson county		Lake county
	Pre-CAFA (n = 156)%	CAFA (n = 68)%	Pre-CAFA (n = 1,770)%	CAFA (n = 2,081)%	Pre-CAFA (n = 335)%	CAFA (n = 153)%
Highest charge
A misdemeanor	81.7	95.2	46.9	45.8	51.6	49.0
B/U misdemeanor	15.1	5.9	46.5	45.9	33.1	36.6
violation	3.3	0.0	6.3	6.8	15.2	14.4
unknown	0.0	0.0	0.3	1.5	0.0	0.0
	n.s.		n.s.		n.s.
Previous local booking
no	48.7	52.9	41.7	46.8	60.0	81.7
yes	51.3	47.1	58.3	53.2	40.0	18.3
unknown	0.0	0.0	0.0	0.0	0.0	0.0
	n.s.		−0.10 (.001)		−0.497 (.000)
Race
white	53.8	44.1	47.5	49.6	57.6	54.9
black	18.6	17.4	21.2	20.2	13.1	10.5
other	0.0	0.0	0.6	0.7	0.0	0.0
unknown	27.6	38.3	30.7	29.5	29.3	34.6
	n.s.		n.s.		n.s.
Ethnicity
non-Hispanic	68.6	60.3	89.6	89.0	64.2	63.4
Hispanic	3.9	1.5	10.2	11.0	7.8	3.3
unknown	27.5	38.3	0.2	0.0	28.1	33.3
	n.s.		n.s.		n.s.
Sex
Male	54.5	44.1	58.1	60.8	66.9	67.3
Female	27.9	17.6	27.9	30.3	32.8	32.0
unknown	27.5	38.3	13.9	8.9	0.3	0.7
	n.s.		n.s.		n.s.

Note. Entries of n.s. indicate associations that are not statistically significant at the .05 level; statistically significant differences are reported as gammas (level of significance); CAFA = counsel at first appearance.

Data on defendants’ highest charges were reliably present in program files.⁷ Class A misdemeanors dominated the City Court calendar in Bleek County, but constituted only about half the cases in the town, village, and small city courts of Hudson County. In the former, defendants accused of violations were seldom represented by the assigned counsel program (inasmuch as they would not have been screened as eligible) but once panel attorneys began the CAFA program, a few such defendants were counseled to disposition.

Our measure for prior criminal justice system involvement is whether or not defendants had been previously booked in the county jail. We recognize that this is an imperfect measure, though it may reflect what local authorities can most easily access on short notice. Approximately half of defendants in Bleek and Hudson Counties had previously been booked in the jail; but the figures were significantly lower for Lake County’s samples.

We report these distributions to assess the comparability of pre-CAFA and CAFA cases in each county, and we observe few significant differences. We note that the association between the previous booking variable reaches statistical significance in Hudson (with a large sample) and also in Lake (where it is more pronounced). Otherwise differences between the two samples do not meet conventional levels of statistical significance.

The dependent variables in this study include three specific outcomes regarding the bail process:

Judges’ decisions to release or set bail

At first appearance, judges decide, within broad constraints, whether to release defendants on recognizance (setting no bail, often abbreviated to ROR), to release under pretrial supervision (typically by the county probation office), to set bail, or to remand to jail with no immediate opportunity to raise bail. A very small number of cases were disposed at first appearance in each county.

How much bail?

The second decision, if bail is set, is the amount that the defendant must provide to secure freedom. We used an ordinal variable to capture categorical variation in bail amounts. There are no fixed guidelines in New York law that establish firm standards for bail amounts. However, discussions with defense attorneys in these counties suggest that there is consensus that most defendants would find any bail above US$500 difficult to meet.

How much time did defendants spend in pretrial detention?

In all three counties, defendants on whom bail was imposed had the opportunity to pay bail at the courthouse, thereby avoiding booking in jail. Those who were not released at arraignment and could not make bail immediately would be transported and booked, and they might spend from 1 day to their entire predisposition period in jail. We created an ordinal measure for time spent in pretrial detention that distinguishes between very brief (1 to 3 days) stays, up to 1 week, up to 2 weeks, up to a month, up to 2 months, and longer than 60 days.

Last, we present breakdowns, for each county, of the full range of outcomes that might befall defendants: (a) dismissal or disposition, (b) release at first appearance (either on recognizance or under supervision⁸) or having bail set, (c) making bail immediately and avoiding booking, (d) being booked in jail but getting released before disposition, or (e) being detained until disposition.

After securing approval from the University at Albany Institutional Research Board, we began data collection in defense providers’ offices. There is no uniform system for keeping records across the state, and even a widely adopted case management system (CMS) is used in disparate fashion across offices. Bleek County’s assigned counsel records were maintained by the program administrator, who keeps logs of assignments as well as the assigned counsel panel members’ detailed (and usually handwritten) vouchers, which provided information on most actions taken in the case, as well as relevant dates and results. Hudson County’s much larger public defender office used the CMS with the support of paralegals and interns, as well as access to a county information technology expert. Lake County’s public defender office also used the CMS.⁹

Our analyses are limited to cases that involved arrests for misdemeanors and violations. In New York, there are three classes of misdemeanors. Class A misdemeanors are offenses that can result in jail sentences of up to 1 year or 3 years probation as well as fines of up to US$1000; the most common in these data is petty larceny. Class B misdemeanors can result in up to 3 months in jail or 1 year of probation, as well as fines of up to US$500. An unclassified misdemeanor can result in a sentence of imprisonment of greater than 15 days but not in excess of 1 year. Violations are offenses that can result in sentences of up to 15 days in jail; legally they are not crimes (New York Penal Code, Article 10, 2008). We note these distinctions because they are relevant to the choices that judges and program administrators make about the provision of indigent defense. The landmark case Argersinger v. Hamlin (1972) established that indigent defendants cannot be incarcerated if they have been denied counsel. When sentencing is discretionary, however, one cannot know with certainty whether the right to counsel applies before the case has been concluded. Indigent defense providers vary in their adaptation to this uncertainty: some decline to represent violation level cases altogether, while others represent almost all arrestees who are eligible. Still others, after adopting CAFA programs, ensured that all defendants were counseled at first appearance, regardless of charge, but retained as clients only those who faced misdemeanor charges.

Results

Tables 2 to 4 report, for each program, pre-CAFA and CAFA comparisons on four variables related to bail decisions and outcomes. These tables present aggregate comparisons for pre-CAFA and CAFA samples for each program. A comparison of these three tables reveals both differences and consistencies across the sets of cases subject to the CAFA programs. In all three, both before and after CAFA was implemented, few if any cases were disposed at first appearance, and few defendants were remanded to custody. This is what one would expect, and we suspect that cases disposed immediately were settled by dismissal or guilty plea and payment of fines, while cases that were remanded involved defendants who had prior felony convictions or who were also wanted for mores serious crimes in other jurisdictions.

Table 2.

The Effect of CAFA in Bleek County.

	Pre-CAFA		CAFA
Bail decision (all cases)	%	n	%	n
dismissed or disposed	0.0	0	1.5	1
released at arraignment: recognizance or supervision	61.5	96	52.9	36
bail set	35.3	55	42.6	29
remanded	3.2	5	3.2	2
n.s. −.090 (.484)	n = 156		n = 68
Bail amount (bail cases only)^a
less than US$249	12.0	6	13.8	4
US$250-US$499	6.0	3	27.6	8
US$500-US$999	36.0	18	41.4	12
US$1,000-US$1,999	18.0	13	6.9	2
US$2,000-US$4,999	12.0	8	3.4	1
US$5,000-US$24,999	2.0	1	3.4	1
US$25,000 or more	2.0	1	3.4	1
−.414 (.007)	n = 50		n = 29
Days in pretrial detention (bail cases only)
0	26.9	14	41.4	12
1-3 days	17.3	9	20.7	6
4-7 days	3.8	2	6.9	2
8-14 days	3.8	2	0.0	0
15-30 days	5.8	3	3.4	1
31-60 days	11.5	6	3.4	1
more than 60 days	30.8	16	24.1	7
n.s. −.206 (.196)	n = 52		n = 29

Note. Entries represent gamma followed by level of statistical significance; n.s. indicates measure not statistically significant at the .05 level; CAFA = counsel at first appearance.

We relied on program records to code judges’ bail decisions. In the CAFA sample, 64 defendants had “ROR” in attorneys’ notes. However, six of were booked in jail following their arrest, and remained in the jail for at least a day following their arraignments. Five of those were ultimately “released on recognizance by order of the court” and none were recorded as having posted bail. This creates an anomaly in our data, but as we cannot determine with certainty that their release status was not recorded days after arraignment (when the updated court decisions had been made), we present these findings in their original form.

Table 3.

The Effect of CAFA in Lake County.

	Pre-CAFA		CAFA
Bail decision (all cases)	%	n	%	n
dismissed or disposed	4.2	14	4.0	6
released at arraignment: Recognizance or supervision	51.7	172	60.9	92
bail set	41.4	138	31.8	48
remanded	2.7	9	3.3	5
n.s. −0.146 (.105)	n = 335		n = 153
Bail amount (bail cases only)
less than US$249	2.9	4	2.0	1
US$250-US$499	8.8	12	16.7	8
US$500-US$999	25.0	34	20.8	10
US$1,000-US$1,999	24.3	33	29.2	14
US$2,000-US$4,999	21.3	29	16.7	8
US$5,000-US$24,999	16.2	22	14.6	7
US$25,000 or more	1.5	2	0.0	0
n.s. −0.107 (.365)	n = 136		n = 48
Days in pretrial detention (bail cases only)
0 days	6.6	9	46.8	22
1-3 days	44.8	61	25.5	12
4-7 days	12.5	17	6.4	3
8-14 days	10.3	14	8.5	4
15-30 days	7.4	10	4.3	2
31-60 days	8.8	12	4.3	2
more than 60 days	9.6	13	4.3	2
−0.053 (.000)	n = 136		n = 47

Note. Entries represent gamma followed by level of statistical significance; n.s. indicates measure not statistically significant at the .05 level; CAFA = counsel at first appearance.

Table 4.

The Effect of CAFA in Hudson County.

	Pre-CAFA		CAFA
Bail decision (all cases)
dismissed or disposed	2.4	43	2.7	57
released: recognizance or supervision	50.8	899	60.9	1272
bail set	46.6	824	36.3	759
remanded	0.2	4	0.1	2
−.198 (.000)	n = 1,770		n = 2,080
Bail amount (bail cases only)
less than US$249	18.9	156	23.7	180
US$250-US$499	14.9	123	16.3	124
US$500-US$999	23.5	194	18.3	139
US$1,000-US$1,999	12.7	105	14.1	107
US$2,000-US$4,999	8.1	67	8.0	61
US$5,000-US$24,999	19.9	164	18.7	142
US$25,000 or more	18	15	0.8	21
−.069 (.047)	n = 824		n = 759
Days in pretrial detention (bail cases only)
0 days	46.2	382	57.6	438
1-3 days	15.2	125	8.0	61
4-7 days	9.3	77	4.3	33
8-14 days	65	54	5.1	39
15-30 days	7.3	60	8.0	61
31-60 days	88	73	8.8	67
More than 60 days	6.7	55	8.0	61
−.104 (.008)	n = 826		n = 760

Note. Entries represent gamma followed by level of statistical significance; n.s. indicates measure not statistically significant at the .05 level; CAFA = counsel at first appearance.

The more intriguing differences are the those between defendants for whom bail was set and those who were released on recognizance: in the Lake County samples, almost 40% of defendants had bail set for their misdemeanor and violation offenses, and most bails were set between US$1,000 and US$1,999, significantly higher than Bleek County’s and Hudson County’s median. In the Lake pre-CAFA sample, very few defendants spent no days in jail before disposition; in Bleek, approximately one in four defendants did so; in Hudson County, 46% of defendants spent no time in jail even before CAFA.

We offer these comparisons to make a point that is seldom noted in single-jurisdiction studies of court processes: the differences in decisions and outcomes across courts—courts facing the same mixes of low-level cases—are substantial. We will return to this observation in our discussion and conclusions.

What, if any, changes in bail practices were associated with adoption of the CAFA programs? In Bleek County, where CAFA was introduced in the small City Court, the City Court judge’s decisions on release, bail, or remand did not change in the predicted direction. Indeed, he released fewer defendants and set bail for more defendants (though the difference does not reach statistical significance). However, for those defendants for whom he set bail, the amounts shifted: In the pre-CAFA period, approximately fewer than 20% of bails were less than US$500, but in the CAFA period, 40% of bails were less than US$500. Bails of US$1,000 or more applied to 34% of defendants in the pre-CAFA sample, but fewer than 20% of defendants in the CAFA sample. But the impact of the bail amounts is clearly seen in the last measure of bail outcomes, days in pretrial detention: while 27% of defendants (for whom bail was set) spent no days in detention before CAFA, 41% spent no days in jail in the CAFA sample.

In Lake County, where the CAFA initiative grew organically from an agreement between a local judge and the sheriff to centralize arraignments (and was then extended with the participation of the Chief Public Defender), judges’ initial bail decisions shifted significantly. In the CAFA sample, 9% more defendants were released on recognizance, and the number of cases in which bail was set dropped accordingly. For those for whom bail was set, judges set more liberal bails at the low (less than US$500) end, and somewhat fewer at the high end (over US$2,000). This association does not reach conventional levels of statistical significance, but the concentration toward the median is worthy of note.

The most marked shift in bail outcomes is reflected in the third measure, the number of days spent in pretrial detention. For those cases in which bail was set, the rate at which defendants made bail before being booked in jail rose from 7% to 47%, with corresponding declines in the number of days that defendants spent behind bars. It stretches credulity to attribute this increase to the modest increases in ROR and in lower bails. We instead are inclined to rely upon defenders’ own reports of their focused efforts on keeping their clients out of jail, which were reported to have concentrated on locating relatives and friends who might assist in making bail.¹⁰

Last, in Hudson County, the most populated county and the one in which experience with CAFA was most established in earlier protocols in the primary City Court, we observe some similarities with, and some differences from, Lake and Bleek Counties. As was the case in Bleek County, with CAFA in place, judges made release decisions that were, in the aggregate, more liberal: 10% more defendants were released (on recognizance or under supervision) rather than had bail set. Their decisions on bail became somewhat more liberal: approximately 8% more defendants had bail set under US$500. And perhaps as a consequence, about 10% more defendants (for whom bail was set) managed to avoid any pretrial detention.

Summary of Findings

We note that bail decisions in outcomes in CAFA cases differed from those in pre-CAFA cases in each county, though in different ways (and to different degrees). Bleek County witnessed no liberalizing of decisions to grant release on recognizance, but dropped bail amounts significantly, which probably resulted in more defendants avoiding detention. Both Lake and Hudson witnessed increases in release decisions, which translated, particularly dramatically in Lake County, into increases in the number of defendants who avoided pretrial detention.

Of course, a defendant’s first appearance, and the decisions made there, set in motion a chain of outcomes, not merely a set of discrete decisions. Figures 1 to 3 present aggregate views of each county’s experience with CAFA. Each figure represents, chronologically, a simplified depiction of possibilities. A defendant might have a case resolved, through dismissal or a plea, at the first appearance, though this is rare. Failing that, he may have the opportunity to be released on recognizance or under supervision. If instead, he has bail set, he may succeed in paying it before he is booked in the local jail, a benefit not only in terms of freedom but also in terms of minimizing his record of engagement with the criminal justice system. If he is booked in jail, however, he may—or may not—succeed in securing release before his case is resolved. The defendants who found none of these exit ramps from the system will remain in jail until their cases are disposed, and will appear at their disposition and sentencing in jailhouse jumpsuits and shackles. If we assess the impact of CAFA programs from this perspective, we observe modest but consistent shifts in these chains of events.

Figure 1.

Cumulative Outcomes in Bleek County.

Figure 2.

Cumulative Outcomes in Lake County.

Figure 3.

Cumulative Outcomes in Hudson County.

In the next section, we discuss our observations about the conditions that accompanied the adoption and implementation of these programs, and offer some speculative interpretations about how and why they produced partial, but promising, results. We also address the limitations and qualifications of the research. Finally, we consider the implications of our observations and findings for future court research and for court policies and practices.

Discussion and Conclusion

Limitations of the Study

We acknowledge and catalog several limitations of this study. First, we compare aggregate samples before and after adoption of CAFA initiatives. This introduces the possibility that pre-CAFA and CAFA samples are different in significant ways, a risk that we could only tentatively investigate. We are particularly sensitive to possible history effects—shifts in court, community or state conditions that might account for any changes we observed—or even shifts in the salience of CAFA in some counties rather than others. To evaluate this risk, we conducted archival research in local news outlets in each site. We found no evidence of obvious changes coinciding with the adoption of CAFA programs (e.g., election of new judges or prosecutors, high-profile trials that might have spotlighted the need for CAFA), and in extensive site visits, we were attentive to any suggestions that such events had occurred. Nonetheless, we cannot completely rule out the possibility that CAFA’s adoption was accompanied by other significant court changes.

Second, we did not conduct detailed individual-level analyses that model pretrial decisions and outcomes as consequences case and defendant characteristics. Our data do not support such analysis. But perhaps more importantly, our objective is exploratory: If we find (as we do) that CAFA has even modest associations with outcomes, then we are prepared to take the next step of investigating the real reasons for those effects, particularly if courts hope to replicate or enhance them. We return to this topic in our conclusions.

We acknowledge the limitations of the data to which we had access. Few researchers have access to defense lawyers’ files, which provide a wealth of information on the process and the details of interactions among court actors. That said, defense lawyers do not record data in the same ways that local and state agencies do (and are obliged to do). We do not have adequate information on possible covariates of outcomes, including defendant characteristics such as race, ethnicity, and prior record. That said, data sets with detailed information on those items seldom have information on the process characteristics to which we had access. We acknowledge the trade-offs, and also the limitations, of work with these data.

Last, we note that our post-CAFA time periods began at the initiation of the programs’ operations. It remains to be seen, once these programs have been routinized and their places in local courts have been stabilized, whether or not the changes we observed will persist, recede, or increase.

What Did We Find?

At least in the short run, all three CAFA initiatives achieved their objectives: they reliably provided CAFAs in targeted courts (Worden et al., 2017). This is nothing to take for granted, since court experts have long been concerned about the gradual decay and outright failures of court reforms (Feeley, 1983). Because we were able to observe program operations and interview participants in all research sites, we had the opportunity to document variation in court norms, with a particular focus on judges’ expectations and adaptations to defense lawyers’ participation. Although the purpose of this article is not to document in detail the circumstances surrounding these CAFA initiatives, we offer some summary thoughts about why, and how, these programs met some level of success.

This project offered a rare opportunity to investigate the impacts of a diverse set of initiatives in three different settings. We acknowledge that the program administrators in these three counties may not be typical: after all, they all sought and secured ILS grants, thereby committing to CAFA, and they also agreed to participate in evaluations of their programs. This suggests that these programs’ leadership exhibited a willingness not only to innovate but also to take political risks. Across New York State, many prosecutors, some judges, and some court clerks have openly criticized these programs, and in two of our sites, district attorneys publicly complained that indigent defense providers were getting resources that should have gone to other purposes.

These programs may have withstood skepticism and even political opposition insofar as they were carefully tailored to the needs of their communities. Lake County’s Chief Public Defender had already experimented with a CAFA program, in collaboration with the county sheriff and an enterprising judge who centralized some arraignments on weekends. By capitalizing on the partnership of convenience that those officials established, the Public Defender set in motion new practices that eventually won over skeptical town and village court judges. Bleek County’s program administrator maintained close relationships with his panel of assigned counsel attorneys, and went to great lengths to keep communication open among those whose cooperation would be necessary for CAFA to work. And in Hudson County, the Chief Public Defender, facing less prosecutorial opposition to his CAFA initiative, nonetheless made certain that the local criminal justice council, which had representatives from all agencies in the county, was not only informed about but also participated in designing the town and village CAFA program.

In short, we cautiously attribute the successful implementation of these programs (and therefore, the potential for them to have the hypothesized impacts on case decisions and outcomes) in part to the political and pragmatic approaches that indigent defense program leadership exhibited, strengthened by key support in critical agencies and organizations at the local level. Beyond this we observed that although system-level reforms may be difficult to implement in rural and small-town courts, these courts operate quite differently from the more commonly studied urban courts and may paradoxically be more promising settings for CAFA. For instance, small-town judges and justices may be able to spend more time processing arraignments and therefore may be better positioned to make use of any information provided by defense attorneys. Furthermore, town and village court justices, few of whom have formal legal education, may be receptive to attorneys’ recommendations, in deference to their professional expertise. Our observations and site research suggests that public officials in rural counties, including judges and justices, are sensitive to the many constraints on their county budgets, and are attentive to discussions of the cost savings that can result from reducing unnecessary pretrial detention.¹¹

Implications for Future Research and for Courthouse Practices and Policies

We hope that this study provides some openings for increased research on key pretrial decisions and the courthouse practices that inform them. Research on providing CAFA is, in many courts, complicated by processes that are difficult to reliably document, yet are often debated by program staff. It is not obvious, for example, what the best practices would be for determining client eligibility. Some providers concluded that it is most efficient to provide CAFA at all arraignments (unless defendants have contacted private lawyers), and sort out who is, and is not, eligible later. Others contend that indigent defense resources should not be used for ineligible clients, but find that working an eligibility assessment into the few minutes before arraignment is simply not practical. Likewise, there is much to be learned about the bond process. Not all judges in our three sites set bond when they set bail; in two of the counties, the closest bondsman’s office is a county away.

As noted above, future research should also investigate the dynamics of pretrial processes, with particular attention to defendants’ interactions with their lawyers, and lawyers’ interactions with judges, prosecutors, and service agencies. CAFA may “work” because it gives attorneys an opportunity to make persuasive release or bail arguments—in other words, it allows attorneys to redirect judges’ behavior. Even when CAFA attorneys do not represent clients to dispositions, they can hand off their notes and observations to the lawyers who will, creating more complete documentation of cases’ early stages. We also speculate that lawyers can serve as advocates in more than legal ways: they may be liaisons to pretrial services and release programs, and they may be knowledgeable about the requirements for diversion programs or specialized courts. In one of our sites, attorneys said that they took advantage of prearraignment consultations to facilitate clients’ communication with family members and friends who might be able to help post bail. We also allow for the possibility that an institutionalized CAFA program may shift group and courthouse norms toward more awareness of case-specific facts that would mitigate prosecutors’ recommendations for detention or high bail.

As our findings suggest that indeed, CAFA can shift outcomes, our next step will be to more closely investigate the dynamics behind those shifts. Discovering that a program has modest effects, at least in some settings, seems like a good reason to explore these dynamics, which may vary across courts themselves, in order to find ways to replicate those dynamics that improve the criminal justice process.

Future research should also investigate the downstream and collateral consequences of providing CAFA. The due process and equal protection concerns that underlie support for the policy are based on fundamental notions of rights. Beyond this important claim, reformers express concern about the potentially damaging consequences for defendants of high rates of financial obligation and risk (in posting bail) and detention (if one cannot post it; Pretrial Justice Institute, 2016). We note that even in these samples, which comprise only misdemeanor and violation charges, at least one in three defendants faced bail, and even after CAFA, almost one in ten remained detained until the case was disposed. It remains to be seen if providing CAFA also opens up more cases to diversion and treatment programs rather than conviction and punitive sentences in misdemeanor cases.

Finally, given state and federal legal developments that presage expanded mandates for CAFA in the near future, research should directly address the policy implications of this, and other, research on the feasibility of extending CAFA programs into the many courthouses where CAFA is not currently provided. Many large city courts hold sessions on weekends and evenings, so while resources may be stretched in those cities, the logistical apparatus for building a CAFA program is at least in place: There are lawyers in the building, there are judges juggling hearings, and there is security in the courthouse. Even with sufficient resources, the challenges of creating viable CAFA projects in the types of communities we study are more daunting. Continuing research efforts to understand those challenges will be essential to finding out whether the results produced by the programs in these three counties can be replicated, generalized, and improved.

Footnotes

Acknowledgements

The authors gratefully acknowledge the assistance of research interns Alyssa Clark, Victoria Farrell, Katie Rhee, and Kenan Worden.

Authors’ Note

This article was prepared for the 2017 Misdemeanor Justice Project Symposium.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This paper was commissioned by the Misdemeanor Justice Project—Phase II funded by the Laura and John Arnold Foundation. Points of view or opinions contained within this document are those of the author and/or the participants and do not necessarily represent the official position or policies of the Laura and John Arnold Foundation and the Misdemeanor Justice Project. The project was supported by Award 2014-IJ-CX-0027 from the National Institute of Justice, Office of Justice Programs, U.S. Department of Justice. The opinions, findings, and conclusions or recommendations expressed in this publication are those of the authors and do not reflect those of the Department of Justice or those of the New York State Office of Indigent Legal Services.

Notes

Author Biographies

Alissa Pollitz Worden is an Associate Professor in the School of Criminal Justice at the University at Albany, State University of New York. Her research addresses justice policy, court decision making, indigent defense systems, and public perceptions of crime and justice.

Kirstin A. Morgan is an Assistant Professor in the Department of Government and Justice Studies at Appalachian State University. Her research interests are juvenile justice, perceptions of criminal justice, court culture and reform, youth street ganges, and research methods and design.

Reveka V. Shteynberg is a Doctoral student in the School of Criminal Justice at the University at Albany, State University of New York. Her research focuses on criminal courts and criminal justice reform, particularly as it relates to plea bargaining, indigent defense, juror decision-making, juvenile justice, and policy and program evaluation.

Andrew L. B. Davies is the Director of Research in the New York State Office of Indigent Legal Services. He is responsible for pursuing research and data collection to monitor, study, and make efforts to improve the quality of defense services in that state.

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