Richmond Times-Dispatch

NEW INDIGENT BILL IS JUSTICE LONG OVERDUE

February 28, 2007
Michael Paul Williams
Times-Dispatch Columnist

Q.What do you call paying court-appointed lawyers for the actual time they put in defending indigent clients?

A. A good start.

The General Assembly passed legislation last week that will allow judges to lift the cap on the minuscule fees the state pays court-appointed lawyers, whose indigent clients make up 85 percent of criminal defendants.

For defense attorneys, the cap on such fees is a bad joke that tilts Virginia's criminal-justice scales heavily against indigent defendants. A lawyer tasked with keeping you from spending the rest of your life in prison is paid $1,235 for a charge such as first-degree murder.

With measures finally providing a waiver for such caps, Virginia took yet another tentative step out of the Stone Age -- as in the age where folks were stoned to death without benefit of a trial.

Richmond defense attorney Steven Benjamin called the $8.2 million to fund the cap "seed money. Everyone knows that's not nearly enough for all the waivers that should be granted."

But Benjamin and others say the legislation provides a chance to assess the time and cost involved in defending indigent clients.

The existing system is a moral outrage that puts attorneys in the conflicted position of paying to defend their clients.

"Call it what it is: a financial penalty," Benjamin said. "For every hour worked above the caps, not surprisingly, lawyers [reach plea deals], do minimal work, do whatever they can to avoid this financial penalty.

"The person who suffers most immediately is the client. Who suffers more broadly is the rest of us. Without the system functioning property . . . this truth-seeking system is compromised."

We hardly need a reminder that the system is flawed. Too many innocent people have been convicted, including Earl Washington Jr., who was rescued from the electric chair days before his execution date.

Virginia has been content to vie with Mississippi as the state most likely to stick it to poor people accused of committing crimes.

"Our fees have always been low, and we've always capped them," said Betsy Wells Edwards, director of the Virginia Fair Trial Project. "For the first time, we'll be able to get more than the statutory cap."

That's nice. What took so long?

"There's no vocal constituency here," said Edwards, explaining that indigent defendants and their families lack political clout. "C'mon, let's face it: We're talking about poor people here. . . . . Do you care enough about the poor to say they deserve a decent lawyer?"

The issue was left to the defense lawyers, who finally got the attention of lawmakers.

"The buzz got loud. It became obvious the proponents won't go away," Edwards said.

Malia Brink, indigent defense counsel for the National Association of Criminal Defense Lawyers, said the waiver legislation, which Gov. Timothy M. Kaine is expected to sign, "helps tremendously . . . assuming they provide the money for it."

Virginia's criminal-defense system's playing field remains far from level, Brink said. "I'm very worried about the juveniles who were left out of the waiver provisions."

"It's a good beginning," Benjamin said, "but whether it does the job will be completely up to the governor and the General Assembly in our next budget session. They will have the choice of either finally fixing the system or not."

And making "Virginia criminal justice" something other than the punch line to a bad joke.