HD32 - Indigent Defense

Executive Summary:
The HJR 178 study, using the study resolution directives, addressed two overall issues: the respective levels of quality between Court Appointed Counsel and Public Defenders, and the cost effectiveness of Public Defender Offices versus the court appointed system. The Virginia State Crime Commission used both statistical and survey analyses to address these issues. First, Pre-Sentence Investigation (PSI) reports were used to conduct multivariate regression analyses to determine if there were any statistically significant differences in sentencing outcomes between those defendants who had been represented by a Court Appointed Attorney, and those who had been represented by a Public Defender. Second, to examine the cost effectiveness of Public Defenders versus Court Appointed Counsel, Virginia Supreme Court reimbursements data paid to Court Appointed Counsel for Fiscal Year (FY) 2000 and Public Defender Commission data was analyzed to compare the relative costs of indigent services by both groups of counsel. Finally, attitudinal survey results were examined to determine the perceived need for change in providing indigent defense services in Virginia.

Based on the study findings, the following recommendations were made to modify and improve the current indigent defense system in Virginia.

Recommendation 1:
Support the installation of Public Defenders offices in Chesterfield County, Hampton, Henrico County, Newport News, Norfolk, and Prince William County.

It was determined that, on average for the year examined, Public Defenders obtain lower sentences for their clients than do Court Appointed Counsel. This statistically significant difference remained, even when a large number of variables, such as type of trial, were taken into account. It was also determined that the Public Defender Offices typically are able to handle charges at a lower cost than Court Appointed Counsel. Based upon the latter findings, the Crime Commission identified the above six localities as areas in the state that might generate a cost savings to the Commonwealth were Public Defender offices to be established.

Recommendation 2:
Modify the Code of Virginia, § 16.1-267, to eliminate the current financial disincentive to appeal cases from Juvenile and Domestic Relations District Courts to Circuit Courts.

A review of the Code of Virginia revealed a discrepancy between the amounts paid to Court Appointed Counsel in juvenile cases. The Code in § 16.1-267 sets the per case amount for representing a juvenile in a Juvenile and Domestic Relations District Court at $112. However, the amount authorized for an appeal of that case to a Circuit Court is $100. It was the recommendation of the Crime Commission to eliminate this discrepancy from the Virginia Code.

Recommendation 3:
Modify the current disparity in pay for attorneys who represent juvenile defendants as compared to those attorneys who represent adults.

Currently, the amount of pay authorized for Court Appointed Attorneys who represent juveniles in Juvenile and Domestic Relations District Court is less than the pay authorized for attorneys who represent adults in Circuit Courts, even when the juvenile is the subject of a petition alleging a similarly serious crime. Along with Recommendation 2 above, the Crime Commission recommended that § 16.1-267 of the Code of Virginia be modified to eliminate this disparity.

Recommendation 4:
Allow trial courts to waive, in appropriate cases, the current caps on fees paid to Court Appointed Attorneys.

A review of the fees paid to Court Appointed Counsel revealed that the amounts authorized by § 19.2-163 of the Code of Virginia have not been fully funded. The actual amounts authorized for Court Appointed Counsel are lower, and are arguably among the lowest in all 50 states. Due to the varying systems of providing indigent defense services in other states, exact comparisons are difficult; however, Virginia is one of only two states which does not allow the maximum fees authorized in a case to be "waived," or exceeded, in special circumstances. Allowing a trial court to waive the statutory cap in individual cases would help to remedy the generally low fees that are paid to Court Appointed Counsel in Virginia.

Recommendation 5:
Include appellate and habeas work within a fee payment structure similar to that outlined in § 19.2-163 of the Code of Virginia.

The current fee structure for court appointed work is found in § 19.2-236 of the Code of Virginia. However, the manner in which payment is calculated for appellate and habeas work is arbitrary and does not require the submission of time sheets or vouchers. It was the recommendation of the Crime Commission that compensation for these types of cases be handled in a manner resembling that used in cases at the trial court level.

Recommendation 6:
Establish minimum training and qualifications for attorneys who are eligible for appointment as Court Appointed Counsel in criminal cases.

The survey responses received indicated wide disparities between judicial circuits as to the minimum levels of experience needed before an attorney would be assigned to court appointed cases. While some judges indicated that they would only assign cases to an attorney who they felt could handle the work, others indicated that they assigned cases to whomever asked, regardless of the level of difficulty of the case or the experience of the attorney. The Crime Commission recommended that certain minimum standards be implemented for those attorneys who wish to accept court appointed work. Those standards could be similar in nature to the standards required to accept Guardian Ad-Litem (GAL) work on behalf of children. The current GAL standards require certain specialized training classes, minimal previous experience, and an obligation to continue receiving additional training every few years.

Recommendation 7:
Create a special task force to examine the feasibility of implementing a system of quality review for those attorneys who do court appointed work in Virginia.

The literature review and survey analysis revealed problems with attorneys failing to maintain minimal standards of quality in their representation of indigent clients. The issue of whether a procedure for the review of Court Appointed Attorneys could be instituted in Virginia, and how such a system would operate, should be studied further and data should be gathered from the various entities in the criminal justice process. It is the recommendation of the Crime Commission that a task force be assembled to investigate this issue and its policy implications.

Recommendation 8:
Establish specialized capital defense units for the handling of capital cases within the Public Defender Commission.

While the Supreme Court of Virginia and the Public Defender Commission maintain a list of attorneys who are deemed qualified to be appointed to capital cases, there is no requirement in the Code of Virginia that judges appoint attorneys from this list in capital cases. Other studies and reports have indicated that this may have impacted negatively on the quality of defense provided in these cases. The Crime Commission recommends that specialized, semi-autonomous capital defender units be established within the Public Defender system in order to help provide quality representation to indigents throughout the state who have been charged with capital offenses.

Recommendation 9:
Create a task force to determine the feasibility of delineating caseload limits for attorneys who are appointed in capital cases, as well as for all attorneys who work in Public Defender offices.

Currently, there are no limits set forth in the Code of Virginia as to the number of capital cases an attorney can be assigned to at one time. Similarly, there are no fixed policies in place at the Public Defender Commission as to the number of cases that an Assistant Public Defender can be expected to handle at any given time. Handling too many cases undoubtedly affects the quality of representation. Thus, it was the recommendation of the Crime Commission to assemble a task force to examine this issue in more detail in order to determine if any absolute standards or caseload limits should be created.

Recommendation 10:
Improve criminal justice data collection in Virginia.

In the course of conducting research and examining various criminal justice data bases in Virginia, it was discovered that in several instances, the quality of data maintained was lacking in cohesiveness from data base to data base. Individual cases could not be tracked from one data base to another. In some instances, valuable information was collected, but not automated. The Crime Commission made several recommendations regarding data collection:

1) the Public Defender Commission offices automate all relevant case specific data;
2) the Department of Corrections revise the Pre-Sentence Investigation Reports to use Bar Numbers to specify counsel; and,
3) the Virginia Supreme Court automate all caseload data related to reimbursement of Court Appointed Counsel.