By: Julianna Meely, Staff Editor
“[A]s long as the state provides a warm body with a law degree and a bar admission, little else matters.”[1]Unfortunately, Georgetown Law professor and prominent author, David Cole’s, sentiment seems to be an accurate reflection of the public’s view of public defense attorneys and indigent defense commissions. As an aspiring criminal attorney, it’s frustrating to think that criminal attorneys on either side of the courtroom get a “bad rap” for circumstances simply out of their control. Many states, in particular, Virginia, place extremely limiting statutory caps on the pay court-appointed counsel receive.[2]
There have been previous reform pushes to the statutory limitations placed on court-appointed attorneys in Virginia.[3] But to no avail.[4] The Virginia State Bar published a study in 1971 showing that court-appointed attorneys are “‘overworked, underpaid, inadequately trained, without adequate, if any, investigational resources and thus often unable to provide a full and aggressive defense.’”[5] The effects of studies like this one were minimal – a small increase of the caps placed on court-appointed counsel fees.[6] In 1997, the proposal to increase statutory caps was revisited.[7] And, once again this movement was met with only a slight increase in statutory caps.[8] Over the following years, more studies documented the “deleterious effects of Virginia’s fee cap system on the quality of representation.”[9] The Virginia Indigent Defense Commission was then created and given authority over the court-appointed counsel and public defender offices.[10] While this was a step in the right direction of improving indigent defense and representation, there was no additional funding provided at this point.[11]
Although Virginia has made steps toward remedying the indigent defense crisis by creating the Indigent Defense Commission, providing training programs for indigent defense lawyers, and slightly increasing the funding for public defenders and court-appointed counsel programs, Virginia still has a long way to go.[12]
Here’s what Virginia Code §§ 19.2-123, the section providing Virginia statutory caps on court-appointed counsel, looks like today:
| Court | Charge | Statutory Cap |
| District | Misdemeanor | $120 |
| Juvenile and Domestic Relations District | Delinquency – Equivalent to Misdemeanor or Felony, Class III to VI | $120 |
| Juvenile and Domestic Relations District | Delinquency – Equivalent to Felony, Class II, or Probation Violation for Felony, Class II | $120 |
| District | Felony, Class III to IV resolved in District Court | $445 |
| District | Felony, Class II, resolved in District Court | $1,235 |
| Circuit | Misdemeanor | $158 |
| Circuit | Delinquency | $158 |
| Circuit | Felony, Class III to VI | $445 |
| Circuit | Felony, Class II | $1235 |
See Supreme Court of Virginia, Chart of Allowances at
http://www.courts.state.va.us/courtadmin/aoc/fiscal/chart.pdf
As the table shows, Virginia’s statutory caps, despite prior reform movements, are still very stringent and completely dependent on the court the case is handled in and the type of charge brought.[13] It is important to note that the court does permit fee waivers in some circumstances, which provide extra funds beyond the statutory fee caps; however, the fee waivers can only be approved in the court the case is resolved in and are also subject to caps set by the Supreme Court of Virginia.[14]
So, what do these statutory caps mean? A court-appointed attorney in a felony, class III case handled in District Court can be paid a maximum of $445. Thus, the appointed attorney on the case could work 1 hour, 10 hours, or 200 hours and would still receive only $445 compensation. If the attorney works 200 hours on a case, the attorney is being paid approximately $2.23/hour. In comparison, private defense attorneys are typically paid $150/hour or more.[15]
Attorneys affected by these statutory limitations are fighting an uphill battle.[16] Inadequate pay and funding play a major role in the “indigent defense crisis.”[17] How can attorneys who are underpaid provide high-quality, efficient, effective, and ethical public defense?[18] Lack of funding bleeds into all parts of representation: attorney numbers (state or county ability to hire or train new attorneys), adequate compensation for attorneys, supervision of attorneys to enforce ethical compliance, hiring of investigators and experts, etc..[19] Under these conditions, “even the most well-intentioned indigent defense lawyer is hard-pressed to provide effective assistance.”[20]
So how can we change this? Unfortunately, even though providing high-quality representation for any individual in the criminal justice system should be a priority, legislatures have been slow to act.[21][22] It is “hard to pinpoint the start of a reform movement.”[23] Awareness of the statutory pay caps that greatly affect court-appointed counsel is key; however, people aren’t usually aware of the problem until it affects them directly.[24] The more people are aware of the issue, the more motivation and the bigger push to effect change.[25] And, while a lot more needs to be done than just getting rid of or increasing statutory caps placed on court-appointed counsel, perhaps public awareness of hurdles such as the statutory caps court-appointed counsels face in Virginia is a good place to start.
[1] Davide Cole, No Equal Justice: Race and Class in the American Criminal Justice System, New Press, 64 (1999).
[2] Indigent Defense, Justice Forward Virginia, https://justiceforwardva.com/indigent-defense.
[3] Malia Brink, Indigent Defense Reform in Virginia: A Long Road Well-Traveled, 31 Champion 10, 11 (2007).
[4] Id. at 11.
[5] Id. at 11.
[6] Id. at 11.
[7] Id. at 11.
[8] Id. at 11.
[9] Id. at 14.
[10] Id. at 15.
[11] Id. at 15.
[12] Id. at 19.
[13] Supreme Court of Virginia, Chart of Allowances, Office of the Executive Secretary, Dept. of Fiscal Services, 17 (Jan. 1, 2020), http://www.courts.state.va.us/courtadmin/aoc/fiscal/chart.pdf.
[14] Id. at 17.
[15] Richard Stim, Getting an Attorney to Handle your Criminal Case, Criminal Defense Lawyer, https://www.criminaldefenselawyer.com/resources/getting-an-attorney-criminal-charge.htm.
[16] See Cara H. Drinan, The Third Generation of Indigent Defense Litigation, 33 N.Y.U. rev. L. & Soc. Change 427 (2009).
[17] Cara H. Drinan, The Third Generation of Indigent Defense Litigation, 33 N.Y.U. rev. L. & Soc. Change 427, 429 (2009).
[18] Id. at 430.
[19] Id. at 430.
[20] Id. at 430.
[21] Id. at 430.
[22] Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale L.J. 1835, 1883 (1994).
[23] Malia Brink, Indigent Defense Reform in Virginia: A Long Road Well-Traveled, 31 Champion 10, 11 (2007).
[24] Id. at 11.
[25] Id. at 11.