RD331 - Report on the Development of Recommendations to Reduce the Number of Misdemeanor Cases in Which the Commonwealth Will Seek Incarceration


Executive Summary:
During the 2010 session of the Virginia General Assembly, two legislative proposals were introduced to reduce expenditures from the Criminal Fund for court-appointed counsel in misdemeanor cases where the Commonwealth’s Attorney would not seek punishment of incarceration. See, e.g., House Bills 1393 and 1394. These bills did not pass; however, the following language was included in the 2010-2012 biennial budget:

"The Committee on District Courts, in consultation with the Virginia Association of Commonwealth's Attorneys and the Virginia Indigent Defense Commission, shall develop policies and procedures to reduce the number of misdemeanor charges for which the Commonwealth will seek incarceration, thereby reducing expenditures through the Criminal Fund for court-appointed counsel or for public defenders. The Executive Secretary of the Supreme Court shall provide a report by October 30, 2010, to the Governor and to the Chairmen of the Senate and House Courts of Justice Committees, and the Chairmen of the Senate Finance and House Appropriations Committees on the implementation of these policies and procedures."

See 2010 Budget, Item 42(D)(2). Pursuant to this directive, representatives of the Committee on District Courts, the Virginia Association of Commonwealth's Attorneys and the Virginia Indigent Defense Commission met on July 20, 2010. Those present included the Honorable Henry L. Marsh, III, Member of the Virginia Senate and Chair of the Senate Courts of Justice Committee; the Honorable Jackson H. Miller, Member of the Virginia House of Delegates and designee of the Honorable David B. Albo, Chair of the House Courts of Justice Committee; The Honorable Wenda K. Travers, Judge of the Prince William General District Court; the Honorable Philip Trompeter, Judge of the Roanoke Juvenile and Domestic Relations District Court; the Honorable David J. Johnson, Executive Director of the Indigent Defense Commission; the Honorable Neil S. Vener, Commonwealth’s Attorney for Campbell County and President of the Virginia Association of Commonwealth’s Attorneys; Karl R. Hade, Executive Secretary of the Supreme Court of Virginia and members of his staff, including Steven L. Dalle Mura, Jody D. Hess and Edward M. Macon (collectively referred to as the “Work Group”).

The meeting began with a discussion of the legal authority and parameters regarding the right of an indigent criminal defendant to court-appointed counsel in misdemeanor cases at public expense. The Work Group also discussed current practices around the Commonwealth with regard to Commonwealth’s Attorneys not seeking jail time in misdemeanor cases, including a letter circulated by Roanoke Commonwealth’s Attorney, Donald S. Caldwell. Finally, the Work Group discussed concerns and possible legal issues related to not appointing counsel in criminal misdemeanor cases, as well as mechanical concerns with regard to timing, communication, and potential ramifications if a Commonwealth’s Attorney initially indicates he/she will not seek jail time and later changes his/her mind.