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Indigent Legal Counsel
What is Best for Arlington?

Background paper prepared for the Civic
Federation's Public Services Committee
by Kim Smith
November 2003


  • Should Arlington continue its court-appointed attorney system?
  • How relevant are the assessments of indigent defense throughout Virginia to actual experiences in Arlington?
  • Should Arlington request amendment to the State public defender enabling legislation to be able to establish its own Public Defender Office? Even if it means an additional outlay in local revenues of $1,000,000? Even if it means paying for the public defender costs for indigent defendants who are not residents of Arlington?

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence [sic], promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The foundation of America is based on the rule of law and the principle of justice. In addition to the right to a speedy and public trial by an impartial jury�the right to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him and to have compulsory process for obtaining witnesses in his favor, Sixth Amendment to the Constitution also insures that an accused American has the right "to have the assistance of counsel for his defence [sic]". The Constitution, without the Bill of Rights, became effective when the ninth state ratified it June 21, 1788, and the Bill of Rights, comprising the first ten amendments to the Constitution, became a part of the Constitution when Virginia ratified ten of the twelve proposed amendments on December 15, 1791.

The Evolution of an Indigent Defendant's Constitutional Right to Counsel

The right to counsel was established, but what about the rights of those who could not afford counsel? State-funded rights to legal counsel for the poor evolved gradually and much later in the life of our country. (Unless otherwise indicated, all information comes from A Practical Companion to the Constitution: How the Supreme Court Has Ruled�,1999). In 1932, in the Scottsboro Boys Case, the Supreme Court ruled that a state violated due process when it failed to supply lawyers in a capital case where the defendants lacked "both the skill and knowledge adequately to prepare" their defense. Despite the ruling, the construction was narrow:"[I]n a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law". (Powell v. Alabama, 287 U.S. 45 (1932) 7-2).

In 1938, the Supreme Court extended this rule to any federal felony prosecutions but refused to extend it to state prosecutions. A 1954 ruling, Chandler V. Fretag, 348 U.S. 3 (9-0) focused on insuring that the state could not rush a trial, denying an attorney adequate time to prepare. Overall, though, little happened on indigent rights for the next twenty years, during which time the Court used a "special circumstances" rule, giving free legal counsel only when particular circumstances warranted it: youth and immaturity, the technical nature of the crime, potential prejudice in the case. In 1963, in Gideon v. Wainwright, the Court held "that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him." Gideon applied only to felony prosecutions. Douglas v. California, 372 U.S. 353 (1963) provided the right to state-paid counsel for the first appeal. In re Gault, 387 U.S. I (1967) extended the right to indigent juveniles. In Argersinger v. Hamlin, 407 U.S. 25 (1972) (9-0), the rule was extended to misdemeanors, at least if the defendant is sentenced to jail (Scott v. Illinois, 440 U.S. 367 (1979) (5-4)).

Other cases defined other rights: to counsel at an arraignment, preliminary hearing, probable cause hearing to determine whether a case should to a grand jury, custodial interrogation, lineup, and sentencing. However, in 1974, the Court ruled that a State "need not" provide a lawyer for a discretionary appeal beyond the first one or for a collateral attack on a conviction, even for an inmate on death row. The effectiveness of counsel is not specifically mentioned in the Sixth Amendment, but it has been held to be implied (McMann v. Richardson, 397 U.S. 759 (1970) (6-3). Similarly, the Court has ruled that ineffective assistance of counsel is a constitutional denial of the Sixth Amendment right. The definition of effectiveness, however, is not errors per se. Rather, it is "an inability to perform as an independent lawyer devoted to the defendant", and that "only very serious errors, likely to produce an entirely different outcome at trial, will require a new trial" (Strickland v. Washington, 466 U.S. 668 (1984)). In Strickland, the Supreme Court set guidelines for effective assistance of counsel. To establish ineffectiveness, "the defendant must show that the lawyer's specific mistakes, not just a lack of experience in general, denied him or her a fair trial". (The Bill of Rights: A User's Guide, 1991) Illustrative of the problem of effectiveness versus outcome is Lockhart v. Fretwell, 506 U.S. 364 (1993) where the Court ruled against a death-row inmate's claim that he had received ineffective counsel "because at the sentencing hearing, his lawyer failed to raise an objection that would probably have led to a sentence of life imprisonment rather than death".

Three Basic Systems for Delivering Counsel to Indigent Defendants

Three basic models have emerged for indigent defense: assigned counsel systems, contract service systems and public defender systems. Assigned counsel involves the assignment of individual criminal cases to private attorneys on a systematic or ad hoc basis. Contract services involves a contract with an attorney, group of attorneys, bar association or some other entity to provide representation in a certain number or all cases within a jurisdiction. Public defender programs have full or part-time staff attorneys and support personnel who provide defense services to indigent criminal defendants. Most states use a combination of these models.

More than half the states have some type of indigent defense system, either under the executive or judicial branch, usually with a public defender component. Typically, public defenders serve metropolitan areas and are supplemented by private bar and/or contract programs to serve the less populous regions, the less serious cases, and the conflict or case overload matters. Sixteen states have a state public defender program in which the public defender office as full authority for the provision of defense services statewide (Alaska, Colorado, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, Minnesota, Missouri, New Hampshire, New Jersey, New Mexico, Rhode Island, Vermont, Wisconsin and Wyoming). Other states have public defender programs organized, operated and funded on a county, regional or local level (Alabama, Arizona, California, Idaho, Maine, Michigan, Mississippi, Montana, New York, North Carolina, South Dakota, Texas, Utah, and Washington). Larger localities are more likely to have locally-operated public defender offices, such as New York City, San Francisco, Philadelphia and San Diego.

Other variations also exist within the PD system. Florida has 20 independent elected public defender offices, one for each judicial district but no state oversight. Illinois has a public defender office for every county with a population over 35,000. Pennsylvania has mandated local public defender offices for each county. In Virginia, the legislature decides where the public defender offices are located, and the Public Defender Commission provides oversight. West Virginia has thirteen non-profit public defender corporations that are funded by the state.

Virginia uses a combination of assigned counsel systems and public defender systems. (Primary Source: Public Defender Programs, Arnold R. Rosenfeld, Wasserstein-in-Residence, Harvard Law School.)

The Growth of the Public Defender System in Virginia

"Loss of liberty in a free society should never be taken lightly, nor should criminal defense lawyers, regardless of their client's economic station in life, ever forget the precious nature of freedom. Public Defenders are constantly called upon to insure that equality of justice is a reality in our criminal justice system, and they should never be content with minimum standards required of court-appointed counsel. Instead, Public Defenders should provide the highest level of skill available to persons charged with crimes."
Philip M. Sadler, Chair
Public Defender Commission
June 1990

The Public Defender Commission and system was first established by the General Assembly following a study and report in 1971 from the Criminal Law Section of the Virginia State Bar. The report recommended the establishment of "pilot" public defender offices as an alternative method for providing counsel for indigent persons charged with felonies or juvenile offenses. The General Assembly passed legislation authorizing three offices in 1972: Augusta County, the Cities of Staunton and Waynesboro, opened fall of 1972; Virginia Beach, opened 1973; City of Roanoke, opened 1976.

Favorable reports led to amending the enabling legislation to authorize five public defender offices. The City of Petersburg became the fourth in 1979, but lack of funding delayed opening of a fifth office.

In 1985, Joint Subcommittees of the House and Senate were created to study alternatives to indigent defense, and both recommended establishing a Public Defender Office to serve Portsmouth. Funding was proved for both Portsmouth and Richmond in 1986.

Local bar associations and others continued to urge the expansion of the public defender system in Virginia. Legislation in 1987 and 1988 and throughout the 1990s led to the opening of a number of offices. During the late 1980s, offices were opened to serve the City of Alexandria and the City and County of Fairfax; another to serve the City of Winchester and the Counties of Clarke and Frederick; the Leesburg office (serving Loundoun, Fauquier, and Rappahannock); the Pulaski Office (serving Pulaski, Wythe, Bland and the City of Radford); offices to serve the City and County of Bedford, the City of Franklin and the counties of Southampton and Isle of Wight; and the City of Suffolk.

In March of 1990, offices were opened serving Danville; in July of 1990, two offices were opened, one to serve the City of Fredericksburg and the Counties of Spotsylvania and Stafford, and another to serve the Counties of Halifax, Lunenburg, and Mecklenburg. The Lynchburg Office opened in 1991. One serving Henry County and the City of Martinsville opened in 1992. After a number of vetoes by then-Governor George Allen, the City of Charlottesville and the County of Albemarle finally got their Public Defender Office under Governor Gilmore in 1998.

The most recent addition to the Public Defender ranks was the authorization in 2002 of a public defender office in Norfolk and the creation of four regional capital defender offices. (Primary Source: Virginia Public Defender Commission. www.publicdefender.state.va.us/historicalinformation.htm

The Role of the Public Defender Commission

The Commission supervises and supports the public defender and capital defender offices. It also is charged with establishing standards for the qualification of counsel appointed in capital cases and maintaining lists of counsel for use by the circuit courts (a responsibility carried out in conjunction with the Virginia Supreme Court and the Virginia Bar Association). The standards were initially effective on July 1, 1992 and have been updated twice, most recently in January 2002.

In November 1996, because of increasing demands for Public Defenders and their staffs, the Commission established an appellate defender unit. The Appellate Defender and two appellate staff attorneys assist the public defender offices with petitions, briefs and arguments in appeals, both in the Virginia Court of Appeals and the Supreme Court of Virginia.

The Public Defender Commission assists with assisting attorneys meet the continuing legal education requirements: 12 hours annually of approved CLE, including two hours of legal ethics or professionalism training. Once a year, the Commission convenes a Public Defender Conference that provides 6 hours of training (1 of legal ethics) and focuses on specific issues faced by public defenders.

To insure that the non-professional staff has adequate knowledge, the Commission also sponsors training for its investigators and sentencing advocates. It also provides funding each year for attorneys to attend training sponsored by agencies or organizations outside the Public Defender Commission, "so long as the training is relevant and cost-effective".

For attorneys outside the Public Defender arena, the Commission helps with the University of Richmond's T.C. Williams School of Law's annual Juvenile Law and Education Conference; the Capital Defense Workshop (sponsored by the Criminal Law Section of the Virginia Bar Association), and in 2002 co-sponsored (with the Virginia College of Criminal Defense Attorneys) forensic training for those defense attorneys who wish to be approved for appointment to capital cases pursuant to Virginia Code section 19.2-163.8 defenders. (Primary Source: Public Defender Commission, www.publicdefender.state.va.us/historicalinformation.htm

Funding for Indigent Defenses

There are two primary sources of funding for indigent defense in Virginia: the Criminal Fund administered by the Supreme Court of Virginia for court-appointed attorneys and the Public Defender Commission for Public Defender Offices.

In 2002, Virginia paid nearly $76.2 million for indigent defense. Total Criminal Fund expenditures increased from $59.2 million in FY 01 to $75.8 million in FY 02, an increase of 28%. Payments to court-appointed attorneys rose from $43.7 million to $57.8 million, an increase of 32.1%. Court appointed attorney costs constituted 76% of Criminal Fund expenditures. (Other expenditures from this fund include Habeas Corpus, court reporters/felony cases, extradition allowance, interpreters for deaf - criminal and civil cases, interpreters for non-English speaking in criminal cases, medical fees, psychiatric exams, blood withdrawal/analysis (drug and alcohol), paternity tests, DNA analysis, jurors per diem, expert witnesses, and witnesses for the commonwealth).

During this same period, the number of indigent defendants rose from 193,352 to 227,058, an increase of 17.4%, and the average fee paid to attorneys representing indigent clients rose from $158 to $176. (Source: Virginia's Courts in Motion: Indigent Defense Services Review. October 15, 2003, Issue 4)

An earlier financial analysis indicates the following for Virginia:

                Total State Indigent 		1999 total State
                Defense expenditures        indigent criminal
1999             1982       1999            defense operating
resident        (in 1999    criminal        expenditures per
population       dollars)   defense         1,000 population

6,872,912      15,147,913  67,480,333             9.82

         Compared to West Virginia

1,806,928       5,094,557   22,454,009            12.43

This same analysis compared state-funded indigent criminal
defense services by type of program in 1999.

                  Type of Program

Public Defender   Assigned Counsel   Contract Attorney	

15,887,218          38,586,442           0

(Source: Bureau of Justice Statistics Special Report. National Survey of Indigent Defense Systems, 1999. September 2001, NCJ 188464)

It is interesting to note that the Judicial Department for FY 03 and 04, in a year of incredible budget pressure and decreases for most functions, recommended "Increase funds for criminal indigent defense: ' The Criminal Fund is a descriptive title for the various statutes that require the payment of court costs and allowances. The major expenditure in this fund is for the services of court appointed attorneys for indigent defendants in criminal cases. For each year, $2.0 million [increases for FY 03 and FY 04, respectively]. (Source: Judicial Department: Amendments to the 2002-2004 Biennial Budget)

Fees for Court-Appointed Counsel

The Spangenberg Group, which has performed a number of analyses of criminal defense for indigents, reported that Virginia has an hourly rate for out-of-court work of $90 and in in-court rate of $90. The per case maximum is $1,235 to defend charges punishable for more than 20 years and $445 to defend other felony charges. However, the Virginia Legislature has not appropriated funds sufficient to pay court appointed counsel at this level. Therefore, the Virginia Courts have scaled down the per case maximum proportional to the funding appropriated. For practical purposes, the per case maximums are $1,096 for felonies punishable by more than 20 years and $395 for cases punishable by less than 20 years. The per case maximum is not waivable in Virginia. (In General District Court and juvenile cases, attorneys receive up to a maximum fee of $112 per charge. Source: VIDC: A System in Crisis. www.vidcoalition.org/crisis.html)

This compares to Vermont: $25,000 for felonies involving life in prison; $5,000 for major felonies and $2,000 for minor felonies with a waivable maximum. To Mississippi with $1,000 plus overhead - presumed to be $25 per hour. To Maine with Class A: $2,500; Class B/C against a person, $1875; Class B/C against property, $1,250 and a waivable maximum. (Primary Source: The Spangenberg Group: Rates of Compensation for Court-Appointed Counsel in Non-Capital Felonies at Trial, July 2002).

Salaries for Public Defenders

The Spangenberg Group also did a limited comparison (at the behest of Kentucky) on public defender salaries.
  For Virginia:

          Agency            Entry-Level Salary

Public Defender Commission
(Northern Virginia)            $39,839

Public Defender Commission
(except Northern Virginia)     $36,032

          Senior Non-Supervisory Level

Agency               Experience  Salary     Midpoint

Public Defender 	
(Northern VA)        4 or more   $43,059-   $55,143
                     years       $67,227

Public Defender
(Except Northern VA) 4 or more   $47,072-   $60,507
                      years      $73,941

              Supervisory Level

Agency            Job Description   Salary    Midpoint
Public Defender
(Northern VA)     Senior Assistant  $47,072-  $60,282
Public Defender
(Except Northern  Senior Assistant  $51,459-   $65,899
VA)                                 $80,339

               Public Defender

Agency            Job Description    Salary   Midpoint
Public Defender 
Com (Northern VA) Public Defender    $73,491-  $92,818

Public Defender   Public Defender    $80,339-  $96,242
Com (Except                          $112,145
Northern VA)

(Source: Finding #6: The Advocate. Volume 21, No. 4, July 1999, http://dpa.state.ky.us/library/advocate/july99/find6.html

How Does Virginia Rate in the Quality of Its Indigent Defense?

Few sources give Virginia high marks on a state-wide basis. The Virginia Indigent Defense Coalition, which seeks to improve the quality of defense services for indigent defendants in the juvenile and criminal justice systems in Virginia, offered the following "report card", based on the American Bar Association's Ten Principles of a Public Defense Delivery System:

Principle 1: The public defense function including the selection, funding and payment of defense counsel is independent.

Grade: D

Comment: The appointment system (court-appointed counsel) compromises independence and gives the appearance that a lawyer's zealous advocacy on behalf of a client could result in a private lawyer's removal from the court appointed list, etc.

Principle 2: Where the caseload is sufficiently high, the public defense delivery system consists of both a defender office and the active participation of the private bar.

Grade: D

Comment: This principle requires the establishment of a statewide system for ensuring uniform quality. Virginia has no such system.

Principle 3: Clients are screened for eligibility, and defense counsel is assigned and notified of appointment, as soon as feasible after client's arrest, detention, or request for counsel.

Grade: B

Comment: While the court appoints a lawyer during the defendant's initial court appearance after arrest, the client may not be able to meet with his lawyer until after the hearing.

Principle 4: Defense counsel is provided sufficient time and a confidential space within which to meet with the client.

Grade: D

Comment: Virginia's high caseloads and fee caps may discourage court appointed lawyers from spending sufficient time with clients to prepare their cases, etc.

Principle 5: Defense counsel's workload is controlled to permit the rendering of quality representation.

Grade: D

Comment: In 1990, the Virginia Department of Planning and Budget approved statewide caseload standards for Public Defenders offices. This was never funded to ensure adequate staff. Similarly, the caseloads for many court-appointed lawyers are high, hampering their ability to provide quality representation.

Principle 6: Defense counsel's ability, training and experience match the complexity of the case.

Grade: C

Comment: For public defenders, high caseloads results in times when attorneys lack sufficient training and experience for particular cases. For court-appointed attorneys, trial judges are responsible for ensuring they assign lawyers who are qualified to handle the charges. However, often there is no attempt to match a case with a qualified lawyer.

Principle 7: The same attorney continuously represents the client until completion of the case.

Grade: A

Comment: Virginia's Supreme Court requires all court appointed lawyers and public defenders to represent a defendant through completion of the case.

Principle 8: There is parity between defense counsel and the prosecution with respect to resources and defense counsel is included as an equal partner in the justice system.

Grade: F

Comment: There is no parity in Virginia which has the lowest unwaivable salary cap in the country. There is no access to expert assistance, except by demonstration of need (made in open court). For public defenders, unlike Commonwealth Attorneys, there is no flexibility as to hiring level, no local salary supplements, no Career Defender Program, and no law school loan forgiveness.

Principle 9: Defense counsel is provided with and required to attend continuing legal education.

Grade: C

Comment: Court appointed lawyers must pay for their CLE and are required only to complete state-mandated general training. There is no requirement for court-appointed attorneys to undergo criminal defense training.

Principle 10: Defense counsel is supervised and systematically reviewed for quality and efficiency according to nationally and locally adopted standards.

Grade: D

Comment: Public Defenders receive annual performance evaluations based on Public Defender Commission standards. Court-appointed attorneys are not required to meet any statewide qualifications or standards nor is their performance evaluated. Those wishing to represent defendants in capital cases must meet minimum standards set by the Public Defender Commission, the Virginia State Bar, and the Supreme Court of Virginia.

(Source: VIDC, Progress Report: Virginia's Public Defense System, March 2003)

How Many Receive Indigent Defense Representation?

Cases Received by State-Funded Public Defense Programs, 1999

                 Number of Cases Received

Total     Criminal    Juvenile   Civil     Other
51,375    41,019      10,356       0         0

Private Attorney Appointments and Cases Received by Assigned
Counsel Programs in State-Funded Systems, 1999

Number of 
Attorney              Number of Cases Received
Appointments   Total    Criminal  Juvenile  Civil  Other

2,492          264,945  154,618   39,888     0     70,439*

(*Includes special proceedings, contempt, guardian ad litem, termination of parental rights and child abuse and neglect.) (Source: Bureau of Justice Statistics, State-Funded Indigent Defense Services, 1999)

What Others Say: Juvenile Defendants

In 1979, the Virginia State Crime Commission issued a report, "Children and Youth in Trouble in Virginia, Phase II". This covered the whole range of juvenile defense, not merely for indigent defendants. It said,

    Juvenile justice system personnel through the state voiced concern about legal representation of juveniles. Some court service unit staff and judges said on many occasions attorneys, particularly those appointed by the court [italics added], see clients only minutes before the hearing, do not take time to subpoena witnesses, and are not aware of community resources or dispositional alternatives which may be appropriate for their clients.

In September of 2002, The American Bar Association, Juvenile Justice Center and the Mid-Atlantic Juvenile Defender Center, issued "An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings", and they observed, in reference to the 1979 report: "The similarities between the findings in that report - almost 23 years old - and those of this assessment are most telling."

Briefly summarizing the findings of the Juvenile Justice Center:

  • Timing of Appointment of Counsel:

      - Children who are detained at their initial hearings are far less likely than their counterparts to have favorable outcomes at adjudication or disposition. Detention is a pathway to subsequent incarceration'

      -Defenders cannot participate early in the process - not at arrest, to protect the rights of their clients; at intake, to prevent inappropriate entry into the system; at initial detention hearings to present evidence in support of release; at arraignments, where youth are informed of the charges against them.

      -Defenders do not have access to most information collected by the Commonwealth's Attorney prior to trial.

  • Waiver of Counsel

      - Outcome of absence of counsel: high incidence of children waiving their right to counsel without prior consultation with a lawyer or trained advocate (reasons: desire to go home, faulty advice, confusion, ignorance, pressure of family or adverse parties).

      -Guesstimate that 50% of children charged with misdemeanors waived counsel.

      -While most jurisdiction's judges did not allow children to waive their right to counsel for felony charges, a guesstimate in one jurisdiction is that 50% of children waived their rights regardless of the seriousness of the charge.

  • Public Defender Offices

      -Represent less than half the population, and the lack of a statewide public defender system "is by far one of the largest barriers to access to counsel and quality of representation for children"

      -Judges and Commonwealth's Attorneys in court-appointed-only jurisdictions expressed the strong need to create public defender offices to improve the quality of representation

      -Investigators found that public defender offices "represented children more effectively [than court-appointed attorneys] and did so without compromising public safety.

      -Appointed counsel in jurisdictions without public defender offices face inadequate remuneration, high volume practice, lack of available training, and few ancillary resources.

  • Untrained and Inexperienced

      -Lack of required juvenile specific training for both PD and court appointed attorneys.

      -Numerous deficiencies in basic defense practices (from open-ended cross examinations to belated motions)

  • Inadequate Ancillary Resources

      -Lack of assistance of support staff, investigators, paralegals and social workers, experts and training

      -Inequitable access to resources vis a vis Commonwealth's Attorneys, judges and court service units.

      -Court appointed attorneys reported they did not receive enough money through fees to pay for experts or other resources.

  • Inappropriate Referrals

      - Juvenile justice system is overloaded with inappropriate referrals, particularly mental health and school-related cases;

      -Unanimous agreement that children with disabilities are over-represented in the justice system and that the juvenile court is the mental health service provider for poor children.

      -Juvenile defenders are not effectively advocating for diversion and dismissal because they are not trained in state and federal laws governing suspension, expulsion and special education services that protect youth from inappropriate school action.

  • Over-Reliance on Court Service Units

      -Juvenile defense counsel expressed frustration with the court's total reliance on court service units to make recommendations and their almost absolute deference to those recommendations.

  • Prosecutorial Discretion

      -Almost all youth transferred to adult court and who are sentenced as juveniles waited for "extraordinarily" long periods of time before receiving circuit court orders that began the clock on their sentences-during which time they did not receive either rehabilitative services or credit for time served.

  • Overrepresentation and Disparate Treatment

      -Skin color matters.

      -There was agreement in all jurisdictions that children and youth of color were over-represented in the juvenile justice system.

      -There was overwhelming agreement that there was disparate treatment (possible reasons: "biased police patrol, lack of parental empowerment, access to resources").

      -Populations of African-Americans predominate detention facilities.

      -The Virginia Department of Justice projects that the number of African-American youth at risk for being detained will increase by 11% between 2000 and 2010.

  • Attorney Compensation

      -The $112 maximum places a premium on high volume and rapid dispensing of cases (typically through hurried plea process)

      -Appointed counsel receive little training in juvenile defense.

      -Attorneys are expected to pay for ancillary services out of their fee.

      -"Investigators found the quality of defense drastically affected by the low court fees, especially in those counties where there is no public defender system" [emphasis added]

      -Judges, Commonwealth's Attorneys, and juvenile court personnel believed the fee scale dissuades attorneys from "doing a good job", including filing motions, preparing for trial, investigating dispositional alternatives, appealing cases to circuit court and continuing to practice in juvenile court once experienced.

    (Source: American Bar Association, Juvenile Justice Center etal, "An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings", September 2002)

The State of Virginia's Indigent Defense System From the Commonwealth's Perspective

The 2002 General Assembly (SJR 43) requested that the Virginia State Crime Commission study the "potential use of an indigent defense commission in the Commonwealth to improve the quality and efficiency of the state's indigent defense services." An interim report was issued in January 2003 that provided an overview of the situation. A final report with recommendations is expected in 2004.

In the course of determining if an Indigent Defense Commission is to be established, the Crime Commission will also consider what responsibilities might be endowed it: to determine the appropriate mechanism for delivering services; to set training and other quality control standards; to fund and provide specialized training for indigent defense counsel; to set standards for attorneys to be appointed to represent indigent criminal defendants; to set caseload standards; to oversee the Commonwealth's expenditure of funds paid to private indigent defense counsel and to expert witnesses.

Some of the initial problems reported:

  • Wide disparities between judicial circuits as to the minimum levels of experienced needed before an attorney can be appointed by the courts;

  • Attorneys failing to maintain minimal standards of quality in representation;

  • No requirement in the Code of Virginia that judges appoint attorneys from the list of those deemed qualified (by the Supreme Court and Public Defender Commission - list of lists --�19.2-163.7 - which requires for capital cases: experience in felony practice at trial and appeal; experience in death penalty litigation; current training in death penalty litigation; demonstrated proficiency and commitment to quality representation) to be appointed to capital cases;

  • A conflict with �19.2-163.7 in �19.2-163.8( C ) that allows a judge in Circuit Court "to appoint counsel who is not included on the list or lists".

  • Trial attorneys who represented capital defendants receiving death sentences were six times more likely to be the subject of bar disciplinary proceedings than other attorneys (Source: Report of the National Symposium on Indigent Defense, 1999)

  • In one in every ten trials resulting in a death sentence, an attorney for the defendant would later lose his law license (Source: Virginia State Crime Commission Report, Indigent Defense, House Document 32, 2002)

  • No limits in the Code as to the number of capital cases an attorney can be assigned to at one time;

  • No fixed policies at the Public Defender Commission as to the number of cases an Assistant Public Defender can be assigned at any given time.

Report of the Virginia State Crime Commission: Indigent Defense Commission, Senate Document No. 11, 2003 NEW

In 2002, the General Assembly requested that the Virginia State Crime Commission study the potential use of an indigent defense commission in the Commonwealth to improve the quality and efficiency of the state's indigent defense services.

In January of 2003, they issued an interim report on their analysis of other states' systems of dealing with indigent legal defense. No recommendations were made; this was an overview of possibilities (which leads one to believe they might be recommending such a commission).

Aside from organizational structure, the Commission was to provide recommendations as to whether an Indigent Defense Commission should have the following powers/duties:

  • To determine the appropriate mechanism for delivering indigent defense services within a given jurisdiction;

  • To set training and other quality control standards for indigent defense counsel;

  • To fund and provide specialized training for indigent defense counsel;

  • To set standards for attorneys to be appointed to represent indigent criminal defendants;

  • To set caseload standards for indigent defense counsel;

  • To oversee the Commonwealth's expenditure of funds paid to private indigent defense counsel and to expert witnesses.

While there were many interesting findings in the Interim Report, some of the more salient include:

  • There are wide disparities between judicial circuits as to the minimum levels of experience needed before an attorney would be assigned to court appointed cases;

  • There are problems with attorneys failing to maintain minimal standards for quality in their representation of indigent clients;

  • While there is a list of qualified attorneys for capital cases; there is NO requirement in the Code of Virginia that judges appoint attorneys from this list (and other studies and reports support the fact that the quality of defense is consequently affected);

  • There are no limits in the Code as to the number of capital cases a court-appointed attorney can be assigned;

  • There are no fixed policies as to the number of cases an Assistant Public Defendant can be expected to handle at one time.

  • There is no verification of eligibility/qualifications of attorneys - both the Supreme Court and the Public Defender rely on self-reporting;

  • Studies and court cases indicated that the quality of representation for capital defendants in Virginia has at times failed to meet minimum standards, and a recent report found that trial attorneys who represented capital defendants receiving a death sentence were six times more likely to be the subject of bar disciplinary proceedings than other attorneys - AND in one in every ten trials resulting in a death sentence, an attorney for the defendant would later lose his law license.

The Commission also included the results of a 2002 survey of what attorneys and the judiciary would like included in any statewide standardization:

  • CLE training prior to eligibility (78%)

  • Orientation to local court procedures (70%)

  • Prior courtroom experience (65%)

  • Maintaining a formal district list of credentialed attorneys (54%)

  • Formal review of credentials by judge (54%)

  • Formal written application by attorneys who wish to be considered for court appointments (43%)

  • Formal interview of applicant by Judge before becoming eligible (26%)

These are mentioned only because it appears these are not commonplace. Whether they exist in Arlington is unknown at this time.

The remainder of the report discusses the different standards, governance and compensation/reimbursement mechanisms of the various states.

Citizens Advisory Committee - the Charlottesville Experience - NEW

Charlottesville had to wait through two Allen vetoes before Gilmore approved a Public Defender Office. And Charlottesville is somewhat unique in that the community, in response to a newspaper article, "actually demanded a public defender office". Because of low rates of compensation/caps in Virginia, adequate defense was questionable, and defendants received three times the length of sentences (presumably for similar crimes) as those represented by private attorneys. The community "attacked a system with no accountability".

The composition of the Citizens' Advisory Committee: One representative appointed by the C'ville city council; one by the Albemarle County government; one from the Thomas Jefferson Area Community Criminal Justice Board (to insure expertise of a criminal justice planner); one appointed by the local legislative delegates; one appointed by the PD. Recently, a representative was added - from the NAACP. Lawyers are ineligible to serve on the committee.

Some of the work efforts of the Citizens Advisory Committee:

  • To expand the size of the understaffed PD office;

  • Reviews the budget;

  • Organized a forum at UVA Law School to interest minority students in public defender careers;

  • Keep the public informed about issues that involve the PD clientele;

  • Organizing local forums to discuss issues within the realm of indigent clients: racial profiling, adequacy of court-appointed lawyers; restoration of voting rights for convicted felons;

  • Assisting ex-felons in the arduous process (currently) of getting restoration of voting rights;

  • Letting the public know that the Virginia State Crime Commission study found that "Public Defenders get their clients better sentences than Court Appointed Attorneys on average�and are less expensive on a per case and per charge basis than are Court Appointed Counsel".

******Note: Studies in Norfolk also found that a PD Office would actually be less expensive, but much depends upon the reimbursement on the state and whether the "less expensive" is overall or to the locality alone.

Civic Federation Involvement

On July 14, 2003, Herschel Kanter, Delegate from Williamsburg Civic Association and Chair of the Cultural Affairs Committee, submitted a resolution to the Civic Federation. While the Legislation Committee did not incorporate a request for enabling legislation into its 2003-4 Legislative Package, it did reserve the right to do so later in the fiscal year. The matter was also referred to the Public Services Committee.

    WHEREAS, a fair and impartial justice system is essential to our democracy;

    WHEREAS, the majority of criminal defendants, both juveniles and adults, cannot afford to pay for adequate legal representation;

    WHEREAS, language and mental health issues often complicate the representation of many of these defendants;

    WHEREAS, Arlington's current criminal justice system relies too heavily on court appointed attorneys;

    WHEREAS, the statutory fees for Virginia court appointed attorneys are among the lowest in the United States;

    WHEREAS, Arlington is one of the most populous jurisdictions in Virginia without a public defender office, and Arlington is the only county in Northern Virginia without a public defender office;

    WHEREAS, the need for public defender services in Arlington exists in both the juvenile and adult court systems; and

    WHEREAS, the creation of a public defender office would promote fairness, consistency and efficiency in Arlington's criminal justice system;

    WHEREAS, a public defender office could be structured to meet Arlington's particular needs; and

    WHEREAS, the Commonwealth's Attorney for Arlington supports the establishment of a public defender office in Arlington;

    NOW THEREFORE, be it resolved that the Arlington County Civic Federation supports the creation of a public defender office for Arlington and urges the Virginia General Assembly and Arlington County Board to support the authorization and funding of such an office for Arlington.

NEW -- Based on the research, I would suggest we add the following:

    BE IT FURTHER RESOLVED that, in the event a Public Defenders Office is authorized for Arlington and established prior to recommendations from the Indigent Defense Commission, the ACCF encourages the County Government, to the extent of its legal authority, to work for the establishment of minimum qualifications for the defense of various types of crimes; the establishment of maximum case loads for Public Defenders and their staff; the establishment of training programs in conjunction with area law schools including, but not limited to, CLE and juvenile defense; and the establishment of a Citizens Advisory Committee patterned after that which exists in Charlottesville, Virginia or similar jurisdictions if applicable.


Depending upon the position of the individual Committee members, we need to brainstorm a list of pros and cons to anticipate the arguments that this recommendation will engender.

Major cons are that it will

  • create a new bureaucracy;

  • cost Arlington residents approximately $1 million per year;

  • irritate current court-appointed attorneys (although many will still be needed because of caseload and conflict problems);

  • Include paying for non-Arlington resident defendants

My pros are:

  • It is really Constitutionally and ethically mandated that we provide equal opportunities for adequate defense;

  • It is cost-effective since public defenders are salaried employees;

  • Some of the money will be reimbursed/contributed by the State, but how much depends upon the overall health of the State budget;

  • It will enhance the qualifications of those representing defendants because they will build experience over time;

  • It will enhance local control over training opportunities/mandates;

  • It will foster partnerships with existing legal institutions;

  • It will provide opportunities to give direct experience, through internships, to young people interested in the law - and perhaps in a career in public defense;

  • Our resolution, if adopted, will include citizens who can monitor and strengthen a PD system;

  • It will reduce charges of - and chances of - discrimination in the quality of defense because of the socio-economic or racial status of a defendant;

  • It COULD be a vehicle for enhancing existing social service programs for offenders, particularly our juvenile defendants.

Please think of your own pros and cons so we can be ready to make some decisions.

Kim Smith

This page was last revised on: January 8, 2004.
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