RD706 - Report Pursuant to Item 39, Paragraph R, 2021 Appropriation Act – Appointment of Counsel at First Appearance

Executive Summary:

This report was prepared in response to language in the 2021 Appropriation Act that requires the Office of the Executive Secretary of the Supreme Court of Virginia (OES) to review, in consultation with stakeholders, the requirements of House Bill 2286 of the 2021 Session of the General Assembly. Item 39 (R) of the 2021 Appropriation Act (House Bill 1800, Chapter 552) (hereinafter, “Budget language") reads as follows:

R. The Executive Secretary of the Supreme Court shall review, in consultation with representatives of the Indigent Defense Commission, Virginia Community Criminal Justice Association, and other stakeholders identified by the Executive Secretary, the requirements of House Bill 2286 of the 2021 Session of the General Assembly, as introduced, and produce (i) a plan for the implementation of the provisions of the bill, (ii) an estimate of the costs of implementing the provisions of the bill, and (iii) an estimate of potential off-setting savings resulting from implementation of the plan. The Executive Secretary shall provide a report detailing the plan for implementation, and associated costs and savings, to the Chairs of the House Appropriations and Senate Finance and Appropriations Committees no later than December 1, 2021.

House Bill 2286 would have made various changes to bail hearings conducted pursuant to Va. Code § 19.2-158, including: i) requiring the appointment of counsel for the defendant regardless of indigency status; ii) providing that representation by counsel may be limited solely to the bond hearing; iii) requiring that counsel for the defendant be provided with adequate time to confer with the defendant prior to any bail hearing; and iv) requiring that the bail hearing be held on the same day as the detained defendant’s first appearance in court.(*1) The provisions of the introduced version of House Bill 2286 are provided in Appendix A.

OES filed a fiscal impact statement for House Bill 2286 detailing the possible impact on the Criminal Fund, which is the fund from which court-appointed private attorneys are paid for representing indigent defendants. The possible fiscal impact on the Criminal Fund arose from provisions in the bill requiring appointment of counsel for all defendants not free on bail who had not retained their own counsel. Additionally, the bill could be interpreted in a manner that would allow court-appointed private attorneys to be paid for representing the defendant during the bond hearing in addition to the fee for representing the defendant for the remainder of the case. After discussion, the Transportation & Public Safety Subcommittee of the House Committee on Appropriations voted to lay the bill on the table, and the Budget language requesting review of the bill was included within the 2021 Appropriations Act.

Separately, the Virginia State Crime Commission sent a letter to the Chief Justice of the Supreme Court of Virginia requesting “that the Committee on District Courts study and make recommendations on procedures and practices for appointing an attorney and conducting a bond hearing when any detained defendant first appears before the court." The letter requested that the Committee on District Courts conduct and complete the study and provide a report with recommendations to the Crime Commission by November 1, 2021. Staff at the Crime Commission subsequently agreed to a December 1, 2021 deadline that coincides with the Budget language.
(*1) For the purposes of this report, the term “first appearance" references the hearing held pursuant to Virginia Code § 19.2-158 for a person charged with an offense who is not free on bail, where the judge currently informs the defendant of the amount of bail and the right to counsel.