35 YEARS AFTER GIDEON - THE ILLUSORY RIGHT TO COUNSEL AT BAIL PROCEEDINGS

Sixty-six years ago in Powell v. Alabama, the Supreme Court declared t hat the pretrial stage from arraignment until trial was ''the most cri tical period'' for investigating criminal charges, preparing a defense , and consulting with an attorney. Yet, throughout the country, a majo rity of states and localities do not provide counsel for indigent defe ndants when they first appear for a judicial bail determination and fo r a lengthy period thereafter during the crucial pretrial stage. In th is article, Professor Colbert argues that the constitutional right to counsel should apply to bail proceedings to protect an individual's li berty and right to defend against a criminal accusation, Professor Col bert begins by describing the results of a national survey he conducte d which indicates that, in most jurisdictions, an accused should not e xpect legal representation when first brought to court before a judici al officer, who decides whether to order pretrial release or bail. He goes on to explain the crucial importance of representation by counsel at the bail determination and provides a Sixth and Fourteenth Amendme nt analysis for guaranteeing the right to counsel. Moreover, Professor Colbert discusses why jurisdictions are mistakenly applying the const itutional doctrine and denying counsel to indigents at the bail stage, and for many days, weeks, or months thereafter, The author then offer s an economic justification for providing counsel by describing the su bstantial cost savings that would result from representation for bail purposes. Professor Colbert contends that lawyers' early intervention would significantly reduce court congestion and overcrowded jails, thu s lowering the public expense for maintaining an unnecessarily large p retrial jail population. He concludes by asserting that the profession al responsibilities of lawyers, judges, and the legal profession as a whole require that they advocate for representation by counsel at this initial stage of a criminal proceeding.