Roanoke Times

In defense of the poor

A defendant's right to a lawyer should be a meaningful guarantee in Virginia.

March 2, 2007

Whatever else good or bad comes out of their actions in the recently adjourned General Assembly, Virginia lawmakers truly struck one blow for justice. They voted to allow judges to lift the unconscionably low caps Virginia has put on fees the state pays court-appointed defense attorneys for representing poor people charged with crimes.

By unconscionably low, we mean the lowest in the nation. For example, the cap is $1,235 to defend against the most serious felony charges -- other than capital murder, for which there is no cap. The $1,235 defense would apply, though, to someone charged with, say, first-degree murder, a crime that could draw a life sentence.

No problem, if the person who has to do the time actually did the crime. But if a defendant is both innocent and poor? Big problem. No one can say how many of the state's criminal defendants are innocent, but about 85 percent of them are poor enough to qualify for state-appointed counsel.

Virginia's miserly fee for defending someone accused of first-degree murder, divided by the state's hourly rate of $90, would amount to a little more than 13½ hours of legal work on the case from start to finish.

Lawyers can work longer without compensation, or limit their efforts to less than two eight-hour workdays.

In a complex case, that little amount of time makes a mockery of a person's constitutional right to an attorney.

Faced with the threat of a federal lawsuit, legislators this year finally took some cautious steps to address this appalling indifference to American standards of justice.

The lawmakers didn't increase the base rate, as they should have. But they voted to let trial judges authorize additional fees -- up to $850 in the most serious felony cases short of capital crimes, for example -- if court-appointed lawyers give a detailed accounting of their time. Lawyers could ask for a waiver on the second cap, as well, under more restrictive conditions.

Gov. Tim Kaine is expected to sign the measure. Indigent-defense advocates will win an important, if partial, victory. And the justice system will be stronger for it.