Richmond Times-Dispatch

BILLS ALLOW MORE PAY FOR PUBLIC DEFENDERS

Supporters say legislation is step toward better Va. justice system

February 27, 2007
By Jim Nolan
Times-Dispatch Staff Writer

Lost in the Virginia legislature's debate about a slavery apology and roads funding was the unanimous approval of a bill that will fundamentally change how most people charged with crimes are defended in state courts.

Twin bills approved by the House and the Senate last week will allow judges to lift the cap on the fees the state pays court-appointed defense attorneys. Gov. Timothy M. Kaine is expected to sign the legislation.

Indigent-defense advocates say Virginia is believed to be the only state that does not give judges the discretion to waive the caps on the fees attorneys receive for representing indigent defendants.

Legal experts say the capped fees are so low that they compromise the ability of court-appointed lawyers to provide adequate defense for poor clients charged with serious crimes.

For example, a lawyer appointed to defend someone charged with a felony punishable by a life prison sentence is paid $1,235 to handle an entire case. At the state's hourly rate of $90 for legal work, that amounts to fewer than 14 hours of compensated time for an attorney to spend on a first-degree murder or similar case.

With about 85 percent of the state's criminal defendants unable to pay for legal representation, sup- porters say the waiver, which was backed by Kaine's administration and Attorney General Bob McDonnell, is an important first step in improving the quality of justice administered in Virginia's courtrooms.

"It's essential to a justice system that you've got competent, well-compensated attorneys on both sides in a criminal case," McDonnell said. He said he pushed for similar reforms when he served in the assembly.

"Poor people are entitled to a lawyer in a criminal case, but if you don't provide money to pay for those lawyers, then that provision doesn't mean that much, and that was the case in Virginia," said lawyer John Hall, a partner in the Washington law firm of Covington and Burling, which worked pro bono to help spearhead the legal effort to get indigent-defense reform passed.

"This is a long-overdue acknowledgment of the seriousness of the problem and valuable progress toward reform," Hall said.

Lawyers appointed to defend people charged with crimes carrying prison sentences of up to 20 years are paid $445 per case. There is no cap on fees for court-appointed attorneys in capital cases.

The legislation allows trial judges to authorize an additional $850 for the most serious felony cases and $155 for lesser felony offenses. Misdemeanor cases, capped at $120 per charge, could have the cap waived to authorize an additional $120.

The measure also allows attorneys to seek a waiver on the second capped fee amount, which can only be granted by the trial judge, subject to the approval of the chief judge of the circuit court under guidelines set by the Virginia Supreme Court.

As part of the budget bill, the General Assembly on Saturday approved $8.2 million to fund the cap waiver. No one is sure how much it will actually cost to fund the waivers allowed under the legislation, though some experts say the cost could be three or four times the money allotted.

The legislation has an accounting provision that will require all court-appointed attorneys to document the amount of time they spend on a case to qualify for payment and a waiver. Officials say that system will, for the first time, provide an accurate basis for determining how much the new cap structure will cost the state.

The state budget for court-appointed work, including the additional money provided in the budget amendment, is about $58 million. Under the provision this year, if the $8.2 million runs out, the state will not be authorized to continue paying fees above the caps.

The state court system expects to handle about 240,000 criminal charges this year, said Karl Hade, executive secretary of the Virginia Supreme Court.

Supporters and experts on indigent defense say there is still much work to be done on the issue.

Even with the new legislation, court-appointed attorneys who defend juveniles on felony charges in juvenile court will not be paid the same fee as attorneys who represent adults on felonies in circuit court.

Still, the passage of the legislation, and the funding provision, was a victory for indigent-defense advocates.

"Credit goes to the legislature, the attorney general, the governor -- everybody pulled together," said Richmond attorney Steven Benjamin, a board member of the National Association of Criminal Defense Lawyers who has advocated for reform since the late 1990s.

"No attorney is going to get rich from this -- this was never about that," he added. "This was about ensuring that people who couldn't afford an attorney had a shot at a fair day in court."