Pre-Arraignment Promise

Courts have not yet recognized the right of incarcerated people to appointed representation between arrest and arraignment. The Sixth Amendment right to counsel attaches at arraignment, denying jailed clients a public defender until the first appearance in court. The prevailing doctrinal interpretation of the Sixth Amendment—that the right to counsel emerges from arraignment—creates a pre-arraignment void in indigent representation. This void denies effective assistance of counsel to incarcerated people. This Article explores the transformative potential of pre-arraignment representation.

     Even absent a constitutional mandate, some indigent defense organizations provide pre-arraignment representation. The author founded, designed, and implemented one such program in California. Empirical policy analysis of the Santa Clara County Pre-Arraignment Representation team demonstrates that its clients spent seventy-nine percent less time in jail and experienced better overall case outcomes than incarcerated people who were denied early representation.

     This Article advocates for systemic adoption of pre-arraignment representation for dual purposes. Providing early indigent defense services to incarcerated people after they are booked into jail custody is sensible policy. Pre-arraignment representation also serves as a deliberate strategy to expand Sixth Amendment doctrine. Widespread implementation of early representation will enable future recognition that the Sixth Amendment should expand to include the constitutional right to counsel during the post-booking pre-arraignment period.