Indigent Defense System Still Lacks Funds


	Print or Email This Page Indigent Defense System Still Lacks Funds Nov. 2, 2006 Leesburg Today By David Telvock Attorneys continue to put pressure on the General Assembly to fix the state's indigent defense system that has been cited in numerous reports over the past three decades as failing to meet constitutional obligations. The most recent effort came from the Virginia State Bar and 25 former presidents, who sent a letter to the General Assembly last month urging legislators to provide more funding for the indigent defense system that has been deemed to be in crisis. Karen Gould, president of the Bar, said some progress has been made in the past two years. The Virginia Indigent Defense Commission, created in 2004, has a new executive director and several task forces have been created to find solutions. Virginia has a combined indigent defense system of public defenders and court-appointed attorneys. The Bar regulates the legal profession and is an administrative agency of the Virginia Supreme Court. "I wouldn't have said it has gotten worse because recently I think the General Assembly has been addressing the issues," Gould said. "They have put more money in the budget. They have created an indigent defense commission." But it hasn't been enough, the past Bar presidents stated in their Oct. 13 letter to the General Assembly. The problems cited with the system are that court-appointed attorneys get the lowest compensation-which are capped-in the nation for defending poor people and the public defenders are overwhelmed with cases, not paid as well as prosecutors and don't have equal resources to do their jobs when compared to prosecutors. Gould pointed out that a 1971 Virginia Bar Association study showed the system was in a crisis and a VSB 1974 report came up with the same conclusions. In 2004, the Spangenberg Group conducted a study for the American Bar Association, that concluded Virginia's overworked, under-funded system of court appointed legal representation fails so drastically that it is likely that innocent people are being wrongfully convicted. "Every person should have the right to know what the law is and be able to rely upon the law," Gould wrote in the letter, signed by the 25 past presidents. "This is what is meant by the term 'equal justice for all.'" Gould contends in the letter that the fact the pay to court-appointed attorneys for doing indigent work is the worst in the nation has brought negative national attention to the state and threatens the Sixth Amendment. The General Assembly has made some modest increases in the fee structure. Virginia caps court-appointed pay at $120 for a misdemeanor case, $445 for felonies with punishments of up to 20 years in prison and $1,235 for felonies with sentences of 20 years to life in prison. The state code calls for a $90 per hour pay schedule that has never been met. When public defenders, including the office in Loudoun County, were defaulting on indigents' appeals because public defenders failed to mail common paperwork on time, the state changed the law to allow more flexibility. In this year's two-year budget, the governor included $3.7 million for additional compensation and another $2.6 million just to fund the caps for court-appointed attorneys. Another approximate $2 million recently went to the public defenders to boost pay and improve technology-chiefly to equip every office with enough computers to conduct legal research. Gould said the key problem with getting sufficient funding is no one really knows how much it will cost to fully fund the system. "The issue is not increasing the money to attorneys," Gould said, "but providing fair and competent representation for those who cannot afford it and who have been charged with crimes." David J. Johnson, executive director of the Virginia Indigent Defense Commission, said the whole system needs help. Legislators have been reluctant to aggressively push for reforms because the problems aren't on the top of constituents' wish lists. "We don't have a constituency in the public defender system. It is our clients, who don't have much of a voice," he said. There are 25 public defenders offices in the state serving 52 jurisdictions. Those 25 offices represented more than 80,000 people in 2004-2005. In areas not served with public defenders offices, the indigent cases are handed to court-appointed attorneys-they represented more than 30,000 people in 2004-2005-and sometimes jurisdictions use a mix. The state Supreme Court's Commission on Virginia Courts in the 21st Century concluded that public defenders are paid an average of 24 percent less than commonwealth's attorneys. Public defenders also are handling caseloads 70 percent above the VSB-maximum dictated. Johnson said half the attorneys in the public defender system have only two years of experience and there is more than a 20 percent turnover rate. The General Assembly mandates standards of practice for court-appointed work, something Johnson said is unique in the nation, raising the bar for indigent defense. The commission made several recommendations for the General Assembly to consider, including reforming the compensation to court-appointed attorneys; funding public defenders comparatively to commonwealth's attorneys; developing maximum caseload standards and closely monitoring compliance to ensure attorneys meet their ethical obligations of providing competent, effective representation; adequately staffing public defenders offices; and expanding the public defender system statewide in every jurisdiction, except those where it is not economically feasible. Alex Levay, a Leesburg defense attorney who serves on the Virginia Indigent Defense Commission, said more improvements have been made for the public defenders offices than for court-appointed attorneys. "We are working on it," he said. "We are still pushing. We have, I believe, a governor who will listen and a Supreme Court chief justice, [Leroy Rountree] Hassell, who has also made it a priority on his agenda." Levay said the indigent defense commission is creating an expert witness and investigative services directory for court-appointed attorneys and public defenders, to assist them in getting qualified, approved experts. "Too often indigents have no investigators or expert witnesses and attorneys are trying to do everything themselves and it's been a big, glaring gap with how people are represented in Virginia," Levay said. Johnson said the chief justices have convened a work group to investigate solutions to the court-appointed fees. Gov. Timothy Kaine (D) has created a similar group, and both will provide packages of suggestions to the General Assembly in the coming years. "There's a lot of things coming together that may indicate that this is the time," Johnson said.
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