NAPD 2023 Rise, Resist, Represent Conference

Most Americans believe that if they are arrested, they will promptly receive a lawyer, see a judge, and have the opportunity to argue for their freedom. Instead, thousands of newly arrested people are held behind bars for days or weeks (or sometimes even for months) before they ever see a judge or an attorney. While the initial appearance is intended to inform defendants about their constitutional rights and provide an opportunity to argue for release, the Supreme Court has never explicitly guaranteed the right to a prompt and meaningful first appearance. As a result, there is little structural incentive for cash-strapped and resource-deprived criminal justice systems to provide prompt access to this essential procedure. Many states permit lengthy post-arrest detentions without judicial process and fail to provide counsel at initial appearance. In many jurisdictions, the initial appearance crisis is exacerbated by lengthy delays in filing formal charges. No constitutional doctrine requires prosecutors to make speedy decisions about filing formal charges. It may be weeks, or even months, before a prosecutor “screens” a case and decides whether to decline or accept the charges against a defendant. Until then, uncharged defendants languish in jail for weeks or months.
This session will examine initial appearance and charging time laws across the country, as well as discuss promising practices, opportunities for reform, and the role of public defenders in improving the early-stage criminal process.