Indigent Defense

Despite reform efforts in the past two decades, Virginia’s indigent defense system remains deeply flawed and fails to provide indigent defendants the guarantees of effective assistance of counsel required by federal and state law. Public defenders carry the majority of the load in representing Virginia's indigent accused, and they typically earn considerably less than prosecutors in the same jurisdictions. Further, Virginia's rates of reimbursement for private court-appointed counsel are low, and fees are "capped." For example, if a private court-appointed attorney is appointed to represent an indigent client in a burglary case -- punishable by 20 years in prison -- that attorney is entitled to a maximum of $445.00, whether the representation required 2 hours or 200 hours. Although the legislature has made funds available for "waivers" of the fee caps, those waivers are themselves subject to caps set by the Supreme Court of Virginia; caps that are firm and cannot be exceeded, regardless of the work entailed by a given case. And frequently, the waiver funds are expended prior to the end of the fiscal year, and by statute are not replenished, meaning that at some point, waiver funds simply aren't available at all.

As a matter of practice, Virginia court appointed attorneys know when they're appointed to serious felony matters, their work is very likely to go uncompensated. As one might expect, low public defender salaries and arbitrarily capped fees take their toll on the cohort willing to represent indigent defendants. Although indigent defense attracts some of the very best lawyers in Virginia, it also attracts some of the very worst, and the results is inadequate representation, and a failure to safeguard the constitutional rights of many poor defendants.

In 2020, Justice Forward supported legislation that would have guaranteed pay parity for public defenders, so that they are paid fairly, and comparably to the prosecutors where they practice. That bill did not pass, but will be revisited in 2021, if not during the 2020 emergency session. Justice Forward also supported legislation that would have provided funding for an additional 59 public defenders statewide in existing offices, and another bill creating a public defender’s office in Prince William County. Both of these initiatives were successful, although it remains to be determined whether the additional positions will receive funding in the forthcoming budget.