Read the full policy brief.
To anyone raised on American television, it may come as a surprise that a person could appear at a court hearing without a lawyer. But every day in West Virginia, people who are arrested face their first hearings alone. This has significant consequences. At the first appearance hearing the magistrate provides critical case information and makes what can be the most important decision about a person’s case: whether they can remain free in their community or must go to jail while they await their next hearing. Those without a lawyer are more likely to face financial bonds they cannot afford than people who do have representation, which results in higher rates of, often unnecessary, incarceration among lower-income West Virginians.
Pretrial incarceration can have a devastating impact on a person, including the loss of their job, home, and child custody. Moreover, the United States Supreme Court has recognized the pretrial period as “the most critical” in a criminal case. When a person is jailed prior to trial, they not only lose their liberty, but also their “ability to gather evidence, contact witnesses, or otherwise prepare [a] defense.” As a result, they are more likely to be convicted, more likely to receive a longer jail or prison sentence, and more likely to accrue court fines and fees than if they had not been detained.
The lack of legal representation at first appearance hurts not only the arrested person and their case; it also has ramifications for West Virginia’s regional jails. During the last 30 years, the average bail amount across the country more than doubled, leading to more people awaiting trial in jail because they could not afford a money bond. In 1999, West Virginia’s regional jails had an average daily population of 1,581 people. Over the next 20 years, violent offenses in the state dropped by eight percent and property offenses dropped by 32 percent, while overall state population decreased by more than 16,000 people. Yet by 2019, the average daily jail population had grown 227 percent to 5,172 people. How can jail populations rise while both crime rates and population fall? One answer: nearly half of people in West Virginia jails are legally innocent and awaiting trial — incarcerated for a crime for which they have not been convicted. At the end of Fiscal Year 2022, West Virginia’s jails were nearly 1,000 people above capacity. Research shows that providing legal representation makes hearings fairer and more efficient, increases compliance with the rules, protects citizens from unnecessary detention, and reduces pretrial detention costs. By ensuring that those arrested have counsel at first appearance (CAFA), fewer West Virginians would be subject to onerous or higher-than-necessary bonds. This would significantly reduce jail incarceration, thereby relieving overcrowding, keeping families together, and saving money for cash-strapped county governments.
