The Spangenberg Group

The Spangenberg Group Releases Comprehensive Study of the Indigent Defense System in Virginia, Legislature Responds with Initial Reforms

In February 2004, the American Bar Association released a comprehensive study prepared by The Spangenberg Group examining the state of Virginia's indigent defense system. The study was conducted on behalf of the American Bar Association Standing Committee on Legal Aid and Indigent Defendants (SCLAID), and was funded by a grant from the Open Society Institute. The report was jointly sponsored by SCLAID, the Washington D.C. law firm of Covington & Burling, and the National Association of Criminal Defense Lawyers. The report was a result of nine months of in-depth review of the Virginia system, including four months of site work between June and September 2003, review of reports and data on Virginia's indigent defense system, analysis of data provided by the Supreme Court of Virginia Administrative Office of Courts and the Virginia Public Defender Commission, and collection and analysis of comparison data from other states' indigent defense systems.

Virginia's all-state funded indigent defense system consists of public defender offices that handled roughly 37 percent of the indigent criminal caseload in FY 2002, and private, court-appointed lawyers who handle the balance of cases.

The main conclusion of the study was, "that Virginia's indigent defense system is deeply flawed and fails to provide indigent defendants the guarantees of effective assistance of counsel required by federal and state law." This assertion was not unknown to Virginia legislators, as dozens of studies conducted over the past thirty years found similar problems and called for similar remedies, which the legislature largely ignored.

The study documents systemic problems affecting both the assigned counsel and the public defender systems in Virginia. For assigned counsel, low fee caps act as a disincentive to many lawyers from doing the work necessary to provide meaningful and effective representation to their indigent clients. Virginia's non-waivable statutory fee caps for work performed by court-appointed counsel are the lowest in the country. An attorney taking court-appointed cases will earn a maximum of $112 for misdemeanors and juvenile delinquency cases, $395 for felonies where the potential sentence is less than 20 years, or $1,096 for felonies that carry a potential sentence of 20 years or more.

Many qualified, experienced attorneys are unwilling or unable to continue to perform court-appointed work, and the low pay encourages those who continue to take court-appointments to minimize time and effort put into individual cases. Beyond problems stemming from low pay, Virginia lacks uniform standards and guidelines for court-appointed counsel, such as minimum qualifications, performance standards, or training requirements, except in guardian ad litem and capital cases. The study found that in many parts of Virginia, attorneys do not need to demonstrate experience or ability to competently handle criminal cases to be placed on a court-appointed list.

As for public defenders, the report found that they are "greatly over-burdened and substantially under-resourced." For instance, new assistant public defenders receive practically no initial training; supervisors carry full caseloads and thus do not have time to also provide training. Caseloads are "excessively high," ranging from between 115-180 open cases per attorney with an average annual caseload of 507 cases per attorney. There are not enough investigators and investigative equipment is either outdated or non-existent. There is a high attrition rate among public defenders, resulting in inexperienced attorneys starting out with the public defender and leaving within 4-5 years.

The report also documents that the resources afforded commonwealth's attorneys are substantially better than those afforded public defenders. In all positions across the board, commonwealth's attorneys earn a higher salary than public defenders in similar position levels. The attorney to support staff ratio is more favorable in commonwealth's attorney's offices. Basic office resources, such as internet access and operating computers, are lacking in many public defender offices. And unlike many commonwealth's attorney offices, public defender offices do not receive supplemental funding from local governments.

The report set forth several recommendations involving major systemic changes to the indigent defense system in Virginia. First, the report suggested that the state government increase funding to "assure that all indigent defendants receive effective and meaningful representation." In addition, the report made several recommendations based on the establishment of an independent statewide indigent defense commission. The report recommended that the commission assume overall responsibility of Virginia's indigent defense system, and adopt performance and qualification standards, workload limits and training requirements applicable to both private attorneys who take court appointments and to public defenders.

In its 2004 session, the Virginia General Assembly acted on recommendations from The Spangenberg Group and created the new Virginia Indigent Defense Commission (VIDC). As of July 1, 2004, the VIDC is responsible for overseeing the provision of legal counsel to indigent defendants in Virginia. The organization is charged with overseeing the training and certification of both private court-appointed attorneys and public defenders. The newly established VIDC replaces the Virginia Public Defender Commission, which oversaw the public defender offices. There was previously no oversight system for private court-appointed counsel.

The new commission is comprised of 12 members, including two attorneys appointed by each the Virginia State Bar, the Governor, the Speaker of the House of Delegates, and the Senate Committee on Privileges and Elections. The remaining four members include the chairmen of the House and Senate Committees for Courts of Justice; the chairman of the Virginia State Crime Commission and the Executive Secretary of the Supreme Court or his designee. See Va. Code Ann. § 19.2-163.02 (2004). In addition, the office will receive six new staff members to direct the training and certification of court-appointed counsel.

Among its other responsibilities, the VIDC is responsible for: establishing official standards of practice for court-appointed counsel, guidelines for the removal of an attorney from the official list of attorneys qualified to receive court appointments, and appropriate caseload limits for public defender offices; maintaining, hiring and employing executive directors and public or capital defenders for each public defender and regional capital defender office established by the General Assembly; and ensuring that each public defender office collects and maintains caseload data. See Va. Code Ann. § 19.2-163.01 (2004).

The Commission is required to report to various legislative committees each year on status of indigent defense in the state, including Virginia's national ranking in pay for court-appointed counsel. Specific requirements regarding certification of court-appointed attorneys have also been created by statute and will become effective July 1, 2005. See Va. Code Ann. § 19.2-163.03 (2004).

While creation of the new commission is a welcome reform, the Virginia General Assembly failed to address the low fee caps for work performed by court-appointed lawyers.

The VIDC will consist of the following 12 members, including three state legislators:

Delegate David B. Albo, Fairfax, Chair Virginia State Crime Commission
Delegate Robert F. McDonnell, Virginia Beach, Chair, House Courts of Justice
Senator Kenneth W. Stolle, Virginia Beach, Chair, Senate Courts of Justice
Robert N. Baldwin, Executive Secretary, Supreme Court of Virginia
Steven D. Benjamin, Esq., attorney in private practice, President of the Virginia Association of Criminal Defense Lawyers, Board Member and Vice Chair of the Indigent Defense Committee for the National Association of Criminal Defense Lawyers, Steering Committee Member of the Virginia Indigent Defense Coalition (appointed by the Senate Rules Committee)
The Honorable Edward W. Hanson, Circuit Court Judge, Virginia Beach, former member of the Public Defender Commission (appointed by the Senate Rules Committee)
King Salim Khalfani, Executive Director, Virginia State Conference of the NAACP (appointed by the Governor)
Alexander N. Levay, Jr., Esq., attorney in private practice, member, Virginia State Bar Council, former President, Hispanic Bar Association of Virginia, former Public Defender for Counties of Fauquier, Loudoun and Rappahannock (appointed by the Virginia State Bar)
Robert E. Shepherd, Jr., Professor Emeritus, University of Richmond School of Law, and nationally recognized expert on juvenile delinquency and the rights of children (appointed by the Virginia State Bar)
David D. Walker, Esq., attorney in private practice, current member of the Public Defender Commission, former Roanoke City Public Defender (appointed by the Speaker of the House of Delegates)
Jo-Ann Wallace, Senior Vice President for Programs for the National Legal Aid & Defender Association, teacher, Harvard University, Trial Advocacy Workshop, and former Director of the District of Columbia Public Defender Service (appointed by the Governor)
Carmen B. Williams, private citizen, community activist, member, Board of Directors American Red Cross, Greater Richmond Chapter (winner of the 2004 Diversity Ambassador Award), and current member of the Public Defender Commission (appointed by the Speaker of the House of Delegates)

For more information contact tsg@spangenberggroup.com