Oct 12 3:30 PM

Are states protecting poor defendants' rights?

In “Lost in the System,” Fault Lines investigates the practice of pretrial detention—and how courts in U.S. counties are failing their poor citizens. The film premieres on Monday, Oct. 12, at 10 p.m. Eastern time/7 p.m. Pacific on Al Jazeera America. | Click here to find Al Jazeera in your area.


At any one moment, there are close to half a million people in jails across the U.S. who are locked up simply because their cases haven’t gone through the system, and they are too poor to post bail. Despite retaining the presumption of innocence, they are behind bars.

A Federal Reserve study found that a majority of Americans would not be able to come up with $400 in an emergency situation. As long as the current cash-bail system remains the primary arbiter of who is released before being put on trial, a majority of pretrial detainees will continue to be those who are poor. According to Cherise Fanno Burdeen, executive director of the Pretrial Justice Institute, only 10 percent of those held pretrial actually should be, because they pose a threat to public safety or are a flight risk.

Ironically, it is incredibly expensive to detain so many people pretrial. States and local governments spend roughly $9 billion a year detaining the legally innocent.

The 6th Amendment outlines the rights of criminal defendants, including the right to a speedy trial and the right to a lawyer. While these legal protections are universally guaranteed by the Constitution, the systems in place to actually uphold them vary widely. There are more than 3,100 counties in the U.S., and thus thousands of different protocols and procedures by which the accused will be processed through local courts and jails. Interpretations of law, levels of funding and oversight depend on jurisdiction.

In theory, all these systems operate within the scope of the law. In practice, they don’t all hold up to scrutiny. Data collection of basic metrics related to court processing and pretrial incarceration are not routinely collected by any federal agency or national organization. But across the country, research shows that not all justice is created equal.

The Sixth Amendment Center monitors right-to-counsel issues across the country and has partnered with states to help them learn more about their own local systems. The Center collected data on state funding for indigent defense, as well as local oversight mechanisms and whether defendants are getting the legal representation to which they’re entitled.

Are states properly funding indigent defense?

State funding for indigent defense (click state to see exact funding level):



For those who cannot afford bail and have to remain in custody prior to trial, their time behind bars can last for months, or in some cases years. The Criminal Law Reform Project at the American Civil Liberties Union reviewed state laws nationwide. Some states—like Vermont, Washington and Wyoming—mandate that charges be presented to a grand jury for indictment or acquittal within days. Others don’t have charging statutes with time limits. As a result, arrestees in 20 states, including Alabama, Massachusetts, and Ohio, could conceivably be held indefinitely while waiting to be formally charged. Depending on how local jurisdictions interpret the right-to-counsel, many poor inmates will also have limited access to legal representation while they wait.

When do states require formal charges be filed after an arrest?

When charges must be filed:

within one month
within three months
within six months
within one year
no time limit


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