Impact of Counsel Type on Initial Release Decisions and Case Outcomes

When a defendant is arrested, they can choose to either hire a private attorney to represent them, have appointed counsel such as a public defender, or have no representation. While the Sixth Amendment guarantees the right to counsel regardless of a defendant’s ability to pay, this counsel is not always required at first appearance. In fact, only 14 states have made it a requirement to have counsel at first appearance, and even in those states, counsel is not always appointed immediately. However, at first appearance, the judge determines whether to release the defendant pending trial, and if the defendant is released, whether to release them on their own recognizance or have them post bail. Accordingly, at first appearance someone’s freedom could be revoked without representation of counsel. Furthermore, even if a defendant is offered bail that doesn’t mean they can always post it. In fact, defendants remain detained for bail amounts as low as $100. Previous studies have explored the impact of being detained pending trial on case outcome and sentencing. The present study uses misdemeanor crimes in Orange County, Florida from 2018 to explore whether the type of representation (private attorney, public defender, or no representation) a defendant had at their first appearance impacted their initial release decisions. Furthermore, this study analyzes whether the type of representation impacted case dismissals, whether the defendant received a jail or fine sentence, and the sentence length and fine amount. Using multiple linear regressions and linear probability models, this study found that type of counsel did not impact release decisions, bail amounts, and fine amounts. However, there were significant differences for case dismissals – on average, having a private attorney was associated with a greater likelihood of having the case dismissed when compared to those without representation and to those with a public defender. In addition, having a private attorney versus a public defender was, on average, associated with a seven-day lower jail sentence. Moreover, on average, having a private attorney was associated with a lower probability of receiving a jail sentence (the most severe punishment) as compared to those without representation and those with a public defender. Having a public defender was associated with a greater likelihood of receiving a jail sentence as compared to those without representation