“Sixth Amendment Right to… Detention?”

By Najja Quail, CFYJ Intern

“Without counsel, an accused’s chances of regaining liberty are substantially prejudiced.” The Constitution Project recently hosted a luncheon to discuss its recent report on pretrial justice and the right to counsel at first judicial bail hearings. In its report, The Constitution Project highlighted the lack of constitutionally mandated counsel for indigent clients at pretrial hearings where bail is set, often at an amount that no indigent citizen could pay. The lack of representation at these hearings often results in indigent clients spending unnecessary time in jail, not because of an adjudication of guilt, but simply because they cannot afford bail. For youth, the negative impacts of this practice are even more detrimental.

More often than not, the result of the lack of counsel at preliminary hearings is detention. For youth charged as adults, this often means being detained in an adult jail. The Prison Rape Elimination Act (PREA) requires that youth in adult facilities be separated by sight and sound from the adult population. Too often this results in youth being placed in solitary confinement, a torturous practice, before any adjudication of guilt. The Juvenile Justice and Delinquency Prevention Act (JJDPA) does not require sight and sound separation for youth charged as adults, a loophole with equally devastating consequences.

In Rothgery v. Gillespie, Justice Souter asserted that “counsel’s advocacy at the initial appearance is essential to the fair administration of our system of justice.” The lack of counsel often results in youth being unnecessarily detained which places them at a grave disadvantage. As a country, we consistently recognize the vulnerability of youth and generally view them as a group requiring special protections. However, when it comes to our treatment of youth involved in the justice system, we seem to lose sight of the fragility of youth and often treat them harsher than adults. The loss of liberty is one of the most highly protected constitutional rights, a right that does not disappear simply because someone is accused of committing a crime.

To learn more about pretrial justice and judicial bail hearings, please contact The Constitution ProjectConstitution Project.