After Abigail Farella was arrested in Bentonville, Arkansas, in 2022, she waited two days before seeing a judge. An Arkansas rule requires counsel at first appearances, but the court did not provide an attorney to help advocate for her release.
The judge set Farella’s bail at $10,000. She was unable to pay, so she remained jailed for roughly five weeks.
She is one of millions of Americans whose Sixth Amendment rights have been violated.
The Sixth Amendment guarantees that all Americans have a right to adequate legal representation to help them navigate their charges and the court system. It also asserts the right to a speedy trial and a trial by jury.
Being arrested isn’t just traumatic; it renders a person helpless in the face of a complex legal system — one that has the potential to dramatically change the trajectory of their lives. In short, it's the Sixth Amendment that ensures dignity for all people, even the criminally accused, and protects individuals from a government’s abuse of power.
Yet, in the United States today, millions of newly arrested people — who are presumed innocent — can languish in jail for days without seeing a lawyer or a judge. In some places, severe lawyer shortages mean that people wait weeks or months for a lawyer’s help. Without that help, many people take a plea deal at their first court appearance — even if they’re innocent.
Preventing these rights violations drives the work at the Deason Criminal Justice Reform Center at Southern Methodist University's Dedman School of Law. The center's Day One campaign tackles this constitutional crisis on the first day of a person's arrest. The campaign says every arrested person must have:
- A first appearance in court within 24 hours of arrest,
- A lawyer’s assistance at first appearance, and
- Continuous legal representation until the case is resolved.
“These three basic due process protections prevent unnecessary detention that causes real harm and upends lives,” explains Pamela Metzger, professor of law and executive director of the Deason Center. “Ensuring these constitutional procedures immediately after arrest also helps states avoid costly lawsuits.”
Why isn’t the Sixth Amendment always upheld?
It’s very difficult to get a full picture of Sixth Amendment violations because of inconsistencies in reporting and differences in what the law says versus how it’s practiced. For example, in Arkansas, a right to counsel at a first appearance before a judge is required, but that rule is regularly violated, as was the case with Farella.
“Alabama, Georgia, and Louisiana allow three days between a person’s arrest and their first appearance, but weekends and holidays do not count,” explained Metzger and her colleagues in a report produced by the Deason Center. “Connecticut and Massachusetts only require that a defendant’s first court appearance occur at the next available court session, regardless of how long that may take.”
There are ongoing efforts to hold states accountable for upholding the Sixth Amendment, and the Deason Center is among those leading the charge.
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Some states are moving in the right direction by setting policies that guarantee counsel at initial appearance. For example, in August 2024, a district court judge ruled that every arrested person appearing before the judge in Benton County must have counsel at first appearances. The state has appealed to the 8th Circuit Court of Appeals, and the Deason Center is coordinating amicus efforts on behalf of the plaintiffs.
But arrested people in 26 states and territories still have no right to counsel at their first court appearance.
To measure the impact of these flawed state laws, Metzger and her colleagues compared them against national arrest data. In 2022, police made more than 5.7 million arrests. More than 4.6 million of those arrests occurred in states where an accused person can languish in jail for much longer than 24 hours without seeing a judge or lawyer. More than 3.7 million of those arrests happened in states that do not guarantee the right to counsel at the first court appearance.
These statistics tell a story of national disgrace — a justice system that is not only failing to uphold basic constitutional rights but is also causing major, sometimes irrevocable damage to the lives of individuals that go through it.
This is why the Deason Center has invested significant time and resources into developing “Initial Appearance Report Cards” and other resource materials for policymakers and advocates seeking to reform their state’s justice system.
And its expertise is getting results.
In Kansas, for example, the Deason Center is providing planning, consultation, and training to increase counsel at initial appearance. Since this work began, two of Kansas’ most populous counties — Sedgewick and Douglas — have started providing people with lawyers at their first court appearance. “Kansas is bringing in research from the beginning,” Metzger explained. “They’re using that research to think through a legal problem, identify the need (like more public defenders in rural areas), and solve it.”
The center’s experts are also working to identify and address lawyer shortages impacting public defense. Through a partnership with the George W. Bush Institute, the center has hired a postdoctoral fellow with a Ph.D. in geography to create geospatial maps that can track lawyer shortages. The Deason Center team has also seen success in drafting model legislation to help recruit and retain rural public defense providers and prosecutors in Texas.
Strengthening Sixth Amendment rights is likely to be a marathon, not a sprint, but time still absolutely matters.
“The Sixth Amendment stands between individuals and the absolute tyranny of government and police power,” said Metzger. “When we dishonor or delay the Sixth Amendment’s rights, we violate the Constitution, and we cause enormous lifelong harm. I challenge any policymaker to ask themselves: what would happen to your own life if you were arrested and held incommunicado for three days? Is that the country the Framers imagined? Is that the country we want to be? I don’t think so.”
The Deason Criminal Justice Reform Center is supported by Stand Together Trust, which provides funding and strategic capabilities to innovators, scholars, and social entrepreneurs to develop new and better ways to tackle America’s biggest problems.
Learn more about Stand Together’s constitutionally limited government efforts and explore ways you can partner with us.
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