RD339 - Report on the Development of Recommendations to Reduce the Number of Misdemeanor Cases in Which the Commonwealth Will Seek Incarceration - October 30, 2013


Executive Summary:
Item 43 (D)(2) of the 2013 Appropriations Act contains a provision intended to decrease Criminal Fund expenditures through the reduced use of court-appointed attorneys to represent certain accused misdemeanants. Specifically, the budget language provides as follows:

"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, 2013, 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 and their impact on Criminal Fund expenditures."

2013 Budget, Item 43 (D)(2). This language is identical to language included in the 2010-2012 biennial budget, with one exception. This year's provision adds the requirement that the report also include information regarding an impact on Criminal Fund expenditures.

During the 2010 Session of the General Assembly, two bills were introduced to reduce expenditures from the Criminal Fund for court-appointed counsel in misdemeanor cases where the Commonwealth's Attorney would not be seeking punishment of incarceration. The two bills, House Bills 1393 and 1394, failed to pass. However, language was included in the 2010-2012 biennial budget requiring the Committee on District Courts to consult with the Virginia Association of Commonwealth's Attorneys and the Virginia Indigent Defense Commission to develop policies and procedures to reduce Criminal Fund expenditures for court-appointed counsel in misdemeanor cases. As with the current budget language, the 2010 language required a report on the implementation of the policies and procedures to be sent to the Governor and the Chairmen of the Senate Finance, House Appropriation, and the Senate and House Courts of Justice Committees.

A work group of representatives from the Committee on District Courts, the Virginia Association of Commonwealth's Attorneys and the Virginia Indigent Defense Commission met in 2010. The 2010 work group determined that it would not be appropriate or workable for Commonwealth's Attorneys to decide in advance not to seek incarceration in criminal and delinquency matters in juvenile and domestic relations district court cases. In addition, the 2010 work group members indicated that it was not realistic to expect all Commonwealth's Attorneys across Virginia to agree on a list of offenses for which jail time would not be sought. What could be viewed as a serious misdemeanor offense in one jurisdiction may not be seen as serious at all in another. Accordingly, the 2010 work group concluded that the Commonwealth's Attorney's decision not to seek incarceration would have to be made at the local level and, in many instances, on a case-by-case basis. Recognizing these limitations, and that effective procedures were already in place to allow for the non-appointment of counsel in certain misdemeanor cases where, if convicted, jail time would not be imposed on a defendant, the 2010 work group submitted a report that included recommendations in lieu of specific policies and procedures.

The recommendations from 2010 focused on the promotion of an increased awareness of procedures that allow the court to forego the appointment of counsel for an indigent defendant in any case where the court has indicated in writing prior to trial that it will not impose jail time, either on request of the Commonwealth or on its own motion in the absence of the Commonwealth. See Va. Code § 19.2-160. A copy of the 2010 Report on the Development of Recommendations to Reduce the Number of Misdemeanor Cases in Which the Commonwealth Will Seek Incarceration and the 2010 Recommendations to Reduce Expenditures Through the Criminal Fund for Court-Appointed Counsel in Misdemeanor Cases are attached as Appendix A.