Arraignment

The arraignment is the first appearance before a judge and is the beginning of the criminal case from the court’s perspective. Arraignments are often very quick hearings, usually happening in five minutes or less, even though very important decisions are made. 

Whether you get a lawyer at arraignment can vary widely by place, however. For example, in places like Wisconsin or Louisiana, where the bar to getting a free attorney is so high, people without resources can wait months (typically in jail) before actually securing a lawyer. 

There is a widespread misunderstanding that a person will automatically get an attorney after they are arrested based on their Miranda rights. That is not 100% accurate. You are only entitled to an attorney immediately after your arrest if (1) the police want to question you, and (2) you assert your right to an attorney. Just because you have the right to a lawyer during police questioning, doesn’t mean you will actually have access to one.

1. OFFICIAL CHARGES: The person arrested finds out what they are officially being charged with by the government (i.e. the prosecutor);
    
2. CASE ENDS OR CONTINUES: The case either ends through the prosecutor dismissing the charges or through a guilty plea. The other option is that the case continues and the judge decides conditions of release (also known as bail).

One of the first decisions a judge makes is about whether there is a legal basis for the charges. The fact that judges rarely ask questions about the charges or dismiss them at the first appearance no matter how much (or how little) evidence there is speaks to how much judges defer to prosecutors. Judges mostly act as law enforcement.

CASE ENDS

A case can end at the arraignment in two different ways. The (1) first is when the prosecutor moves to dismiss (throw out) the case (which must be approved by the judge). The prosecutor has the power throughout the entire case to move to dismiss any or all charges. The (2) second is when the person charged either (a) pleads guilty to the top charge (charge that comes with the most punishment) and the judge imposes the sentence, or (b) the prosecutor offers them the opportunity to plead to a lower charge. This is also known as a plea bargain, which allows the defendant to plead guilty to a lesser charge in exchange for giving up their right to trial.

Over 90 percent of cases are resolved by plea bargains. The promise of a lesser sentence or a lesser charge is used by the prosecution to entice the person being prosecuted to plead guilty, even if they aren’t.

In a plea bargain, the parties “agree” to resolve the case instead of going to trial. The person accused has to publicly declare that they accept responsibility (admit guilt) for the lesser offense, and they have to accept the corresponding sentence. Only the prosecutor can undercut their own charging decisions and offer a plea bargain. Even though the plea marks the end of the case, potential plea bargains shape how the prosecutor and defense think about the case from the beginning. We’ll get into this more in the plea bargain/negotiation section.  

Even if the prosecution does not offer a plea bargain, at any point during the criminal case proceedings, including at arraignment, the accused person can plead guilty to the full charges brought against them.

CASE CONTINUES - CONDITIONS OF RELEASE

If a case does not end at the arraignment stage, the judge sets conditions of release, also known as bail, that will last for as long as the case continues, which can be months or even years. The condition that people are usually most familiar with is having to pay money—which is why many people use the term “bail” to specifically refer to money bail—but really “bail” refers to any kind of condition of release. In some places these conditions are decided before the arraignment. Remember that every state and jurisdiction does things a little differently so it's important to find out the details about your particular place! 

Bail is the process of securing release for someone who is charged with a crime while they await trial. Conditions of bail or release may be imposed, such as an order to not contact someone, avoid a location, not get re-arrested, wear a GPS monitor (also known as an electronic shackle), take weekly drug tests, or not leave the state. Instead of setting bail or just releasing the accused person during the pretrial period, in some jurisdictions and often depending on the charge, the judge can also decide to send them to jail without the option for release. This is often called preventive detention.

Although bail hearings look different from place to place, typically, what happens is that the prosecutor asks the judge to either (1) send the person accused of a crime to jail until their trial because they pose a “risk to the community” or there is a risk they will not come back to court, (2) set money bail (require them to pay a certain amount of money to be released), or impose other conditions. The defense attorney makes an argument for why their client should be released without conditions during the pretrial period, and if money bail is set, why it should be lower. The judge makes a decision based on the information provided by both sides. Research from New York City shows that the single most influential factor in determining a judge’s bail decision is the prosecutor’s bail request.

In some states, the stated legal purpose of bail (whether money bail or supervision requirements) is supposed to be about ensuring someone comes back to their court dates, in other states their purpose is to both ensure an accused person returns to court AND to protect “public safety.”

Take the case of Lavette, who was arrested in Chicago and unable to pay her bail:

Many also know the tragic story of Kalief Browder, a teenager who was caged for three years on Rikers Island in New York, most of which he spent in solitary confinement, awaiting trial:

Money bail is not the only bail condition used, however. As awareness about the dangers of incarceration has grown, especially during the global COVID-19 pandemic, there has been an increase in judges ordering electronic shackling, home detention, or other supervision conditions during the pretrial period.

Take it from someone currently on pretrial electronic monitoring:

Although heavily influenced by the prosecutor’s recommendation, the judge makes the final  decision whether to release or detain someone being prosecuted, or whether they will set conditions on the person’s release that, if violated, could result in the judge sending them to jail before the trial. In many places, a judge also uses a risk assessment tool to “predict” an accused person’s probability of showing up for court dates or being arrested for a new charge and then make a detention or release decision. Risk assessment tools have been shown to assign higher risk scores for Black people accused of crimes than white people, even when they are accused of less serious offenses. 

The bail decision is one of the most important points of the case. Research shows that whether you are able to fight your case from the outside or are forced to fight it from behind bars dramatically impacts the outcome of a case. It also affects the likelihood of people taking a plea.  As we saw with Lavette and Kalief, incarceration for any amount of time ruins lives—people lose jobs, income, housing, education, access to necessary medications, and parental rights; and experience physical, sexual, psychological, and gender-based violence while incarcerated pretrial. ICE is often stationed in jails and, if they find someone who is undocumented, can start deportation proceedings against them.

Pretrial incarceration can also be a death sentence, as it was for Sandra Bland:

Being on supervision and surveillance pretrial also has devastating consequences, as it has with Mohawk Johnson. It is no surprise that people will agree to terrible plea deals to avoid jail or to be released from jail or monitoring. In fact, data from Brooklyn and Philadelphia shows that people are nine times more likely to plead guilty to a misdemeanor if they are jailed pretrial.

For cases that continue at the arraignment stage, prosecutors and judges can decide to prosecute the case differently by funneling the case into a problem-solving court (sometimes referred to as a treatment court, speciality court, or status court) or into a diversion program.  Whether a case is eligible for these different modes of prosecution depends on the charge, the jurisdiction, and the discretion of the prosecuting office and/or judge. 

What makes these modes of prosecution different is that the person being prosecuted enters into, and must successfully complete, some kind of program or requirements (examples can include anger management classes, mental health or drug “treatment,” restorative justice circles, community service, counseling, and payment of fines or restitution) to avoid or reduce a conviction or incarceration. 

While these programs—whether mandated by prosecutors or judges—often seem like deals or bargains or alternatives to punishment, they actually expand surveillance and supervision, come with fees and other financial obligations, extend the state’s control over people’s lives for years, and can sometimes be a trap that leads to incarceration. Inpatient programs can especially feel like prison. But, these programs can be tempting because if you can navigate all the requirements, you can often avoid a criminal record or prison time.

There are many reasons why people are not able to complete program requirements and are then rerouted back to prosecution, conviction, and/or incarceration. Here is one example: