HD40 - Alternative Indigent Defense Systems
Executive Summary: In the spring of 1985, the Virginia Bar Association ("VBA") was asked by two General Assembly joint subcommittees (which later were merged into one Joint Subcommittee Studying Alternative Indigent Defense Systems) to participate in their ongoing study of the court-appointed counsel and public defender systems of providing legal representation to indigent defendants in the Commonwealth. The VBA responded by appointing this Special Committee on Indigent Defendants (the "Committee"). The Committee began its work by narrowing its focus in three significant ways. First, we focused on only two of the many issues involving legal representation of indigent defendants -- (1) whether that representation is best provided by a court-appointed counsel system, a public defender system, or a combination of the two, and (2) to the extent that a court-appointed system is retained, what the authorized counsel fees should be. Second, we focused on the representation to be provided at trial, not on appeal. Third, since the General Assembly intended to hold public hearings on these and other issues and to retain consultants to assist it in its work, we decided that we could be of greatest assistance to the Joint Subcommittee by conducting a survey of the bench and bar to determine their views on the above issues. That survey, in the form of a questionnaire that was sent to over 4300 of the 12,000 members of the Virginia State Bar, serves as a basis for many of the Committee's findings and recommendations. Of the 41 cities and 95 counties in the Commonwealth, 11 cities and 12 counties currently are served by public defender's offices. The remaining jurisdictions are served by court-appointed counsel systems. The maximum fees for court-appointed counsel have been increased only once (in 1986) during the past 15 years, and in fact were decreased by approximately four percent in 1983. The current maximum fees authorized for court-appointed counsel are, for a case in district court, $86 for a single charge, and for a case in circuit court, $115 for a misdemeanor punishable by confinement, $230 for a felony punishable by 20 years imprisonment or less, $460 for a felony punishable by more than 20 years imprisonment, and a "reasonable amount" for a capital case. The Committee's findings are as follows: • The quality of individual defense counsel representing indigent defendants is adequate; many such counsel are extremely well qualified. But there are problems with the system of providing legal representation to indigent defendants. • Retained counsel are viewed as being more effective and qualified than either court-appointed counsel of public defenders. • The fee schedules for court-appointed counsel in non-capital cases, and the fees actually awarded in capital cases, are much too low. • No detailed guidelines are available to assist judges in setting court-appointed counsel fees. • No detailed guidelines are available to assist judges in determining the reasonableness of expenses for court-appointed counsel, and court-appointed counsel often are not fully reimbursed for expenses incurred. • There is a disturbing trend in some jurisdictions for attorneys, including the more experienced attorneys, not to volunteer to be included on the court-appointed counsel list, or if they are on the list, to ask to be removed after a number of years of service. • Representation provided by some court-appointed counsel may be affected by the low fees. • Problems exist in the administration of the court-appointed counsel system with regard to how attorneys are determined to be sufficiently experienced and other wise qualified to be included on the court-appointed counsel list, for what reasons they are removed from the list, and what criteria are in fact used to assign counsel to a particular case. • The relative costs of the two systems are difficult to compare, especially in a jurisdiction such as Virginia where court-appointed counsel fees are low. • There is a fairly even split statewide in preferences among attorneys and judges for a particular system, with a preference for the public defender system in urban areas, and for the court-appointed counsel system in rural areas. There was no clear preference for either system in the suburban areas. Based on the above findings, its survey, its other research, and the experience of its members, the Committee recommends that: 1. The General Assembly should establish a public defender system in those major urban and heavily populated suburban areas of the Commonwealth where it can be demonstrated both that there is a preference for a public defender system and that such a system will be cost effective. 2. The General Assembly should establish a public defender system in rural areas where it can be demonstrated either that (a) there is a strong preference in a rural area for a public defender system and the establishment of such a system in that area clearly will be cost effective, or that (b) there is some other reason why a court-appointed system will not continue to provide adequate representation to indigent defendants in that area (e.g., where there is an insufficient number of local attorneys to provide the necessary assistance to indigent defendants under a court-appointed system). 3. The Virginia State Bar ("VSB"), VBA and the Judicial Conference should develop, and should recommend to the Judicial Council, criteria to assist judges in deciding whether a particular attorney is sufficiently experienced and otherwise qualified to be placed on the jurisdictions court-appointed counsel list, when an attorney should be removed from the list, and whom to appoint to a particular case. Such criteria could include, for example, certain training and experience requirements before an attorney could be appointed to a serious felony case. 4. Because the trend among attorneys, especially the more experienced attorneys, in some jurisdictions is not to volunteer to be included on the court-appointed counsel list for that jurisdiction, or if they are on the list, to ask to be removed from the list after a number of years of service, the VSB and the VBA should develop incentives to encourage attorneys, including the most experienced attorneys, to volunteer to be included on and remain on the court-appointed counsel list for their jurisdiction, and to take a fair and representative share of court-appointed cases, especially in those jurisdictions where there is an insufficient number of experienced attorneys to be assigned to such cases. Such incentives could include free tuition for a certain number of hours of continuing legal education courses; reimbursement, after a certain number of hours of court-appointed service, of a portion of a court-appointed counsel's legal malpractice insurance premium; or some form of case and docket management that more specifically determines when court-appointed counsel must be in court so they can avoid long waiting periods before their court-appointed case is called. 5. The Committee is deeply concerned that 17.5% of the respondents to its questionnaire indicated that they had foregone some activity that may have been beneficial to their client because of low fees. The Committee recognizes, however, that there may be some ambiguity in both the question and the responses. It could be that certain activities were not undertaken because they were not truly necessary. To the extent, however, that certain activities are not undertaken because of the current fee schedule or because of a concern that certain expenses would not be reimbursed, the Committee believes that such conduct is unacceptable. The Committee, therefore, recommends that the VSB and VBA jointly investigate whether necessary and potentially beneficial activities on behalf of indigent defendants are indeed not undertaken because of the current fee structure and expense reimbursement practice. 6. The General Assembly should adopt immediately a phased-in program to increase the current fee structure for court-appointed counsel to the national average by 1992. Specifically: a. During its 1989 Session, the General Assembly should amend 19.2-163 to increase the maximum fees payable to court-appointed counsel 15% -- to $100 for a single charge in a district court, $575 for a felony charge in circuit court where the offense is punishable by confinement for more than 20 years, $265 for any other felony charge in circuit court, and $132 for any misdemeanor charge in circuit court where the offense is punishable by confinement in jail. b. The General Assembly should continue to increase the maximum fees payable to court-appointed counsel each year in an amount sufficient to ensure that, by 1992 and thereafter, Virginia ranks in the upper half of the states with regard to such maximum fees. 7. The Office of the Executive Secretary of the Supreme Court of Virginia should continue to ensure that its hourly rates for court-appointed counsel are at least equal to the hourly rates authorized by the federal courts in the Fourth Circuit. 8. The VSB, the VBA and the Judicial Conference should develop, and recommend to the Judicial Council, criteria to assist judges in determining what fees and expenses, within the statutory maxima prescribed by the General Assembly, to pay or reimburse court-appointed counsel in a given case, including capital cases. |
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