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New ABA Report says Virginia’s Indigent Defense System Fails to Protect Rights of Poor Criminal Defendants

Innocent Defendants Are Wrongfully Convicted, Study Finds

RICHMOND, VA, Feb. 2, 2004–A new study commissioned by the _ Standing Committee on Legal Aid and Indigent Defendants concludes that Virginia’s indigent defense system fails to adequately protect the rights of poor persons accused of crimes, providing “little more than assembly-line justice.”

The nine-month study was done by The Spangenberg Group, and is perhaps the most comprehensive review produced to date of the commonwealth’s indigent defense system. The report has not been approved by the ABA’s policy-making House of Delegates, and its recommendations do not represent official policy of the association unless otherwise stated in the report.

Poor defendants in Virginia are denied fundamental fairness, and in extreme situations innocent people are wrongfully convicted of crimes, according to the report.

Inadequate resources and no oversight structure are the two primary factors behind a system that fails to provide lawyers with tools, time and incentives to adequately represent defendants. The shortcomings have persisted despite 30 years of studies and reports identifying the same problems and recommending the same solutions. Because no official state entity effectively advocates for indigent defense needs in Virginia, and elected officials have not responded to previous analyses, there has been no meaningful way to seek solutions, according to the report.

“The commonwealth has an opportunity now to reverse this history, and authorize creation of an indigent defense oversight commission as a first step in moving toward fulfilling the promise of the Constitution of the United States,” said ABA President Dennis W. Archer in releasing the report.

“Recognizing Virginia’s current fiscal realities, it may take some time to fully implement all of the necessary changes, but the creation of an oversight commission is a crucial component of bettering our indigent defense systems,” said ABA President-Elect Robert J. Grey Jr. of Richmond. “This report, with its detailed findings and recommendations, offers Virginia a great opportunity to move forward and effect real change within the commonwealth’s legal system, to assure that adequate representation is provided to those Virginians for whom the state provides counsel,” said Grey.

Among other findings were:

  • Currently no official Virginia entity effectively advocates for indigent defense.
  • Virginia ranked last in average cost per indigent defendant case among 11 states for which data were collected for FY 2002.
  • Substandard practice is the accepted norm in Virginia’s indigent defense.
  • The deep systemic flaws put lawyers representing indigent defendants at substantial risk of violating professional rules of conduct.
  • Court-appointed lawyers and public defenders make very limited use of services such as expert witnesses that often are essential to proper representation.
  • Virginia’s statutory cap on fees for court-appointed lawyers is the lowest in the country, and acts as a disincentive to assigned counsel doing work necessary to provide meaningful and effective representation.
  • The public defender system is greatly over-burdened and substantially under-resourced.
  • There is a great disparity between the resources afforded to public defenders and to prosecutors, and there is an unfair and illogical disparity in pay between court-appointed lawyers representing parents in abuse and neglect cases and the guardian ad litem lawyers representing the best interests of children in those cases.

The report recommends five major systemic changes:

  • The General Assembly should fund indigent criminal defense services in cases requiring appointed counsel at a level that assures defendants receive effective and meaningful representation.
  • The commonwealth should establish a professionally independent statewide indigent defense commission to organize, supervise and assume overall responsibility for the indigent defense system.
  • The commission should have broad power and responsibility for delivery of indigent criminal defense.
  • The commission should adopt performance and qualification standards for both private assigned counsel and public defenders, addressing workload limits, training requirements, professional independence and other issues, to ensure effective and meaningful representation
  • The commission should establish and implement a comprehensive data collection system to provide an accurate picture of services provided.

The commonwealth provides for indigent defense with a combination of 21 public defender offices serving 48 of 134 localities, and court-appointed counsel who represent clients in all localities.

The report labeled the appointed-counsel fee caps “shocking.” Maximum fees are $112 for misdemeanors or juvenile cases eligible for jail or prison sentences, $1,096 for felonies punishable by more than 20 years of confinement, or $395 for all other non-capital felony cases. No funds are available to pay investigators in appointed-counsel cases.

While 21 other states also cap fees for appointed counsel in non-capital cases, the other caps are waivable and range up to $25,000. The Virginia cap creates an incentive for appointed lawyers to steer their clients to plead guilty, and appointed lawyers spend as little time as possible on each case.

The report notes that the responsibilities of most statewide oversight commissions include advocating for resources for indigent defense. While Virginia does have a commission, the report says, “We were told that the Public Defender Commission in Virginia has been timid about advocating for adequate resource needs. Indeed, it seems the Commission has taken pride in the repeated battle cry that it can provide representation to indigent defendants cheaper than court-appointed counsel.”

The report is posted on the ABA’s Web site at www.indigentdefense.org. The study was supported by a grant from the Gideon Project of the Open Society Institute and contributions from the ABA Standing Committee on Legal Aid and Indigent Defendants, Covington & Burling and the National Association of Criminal Defense Lawyers.

The National Association of Criminal Defense Lawyers advances the mission of the nation’s criminal defense lawyers to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL’s members include private criminal defense lawyers, public defenders, active-duty military defense counsel, law professors and judges.

The _ is the largest voluntary professional membership association in the world. With more than 400,000 members, the ABA provides law school accreditation, continuing legal education, information about the law, programs to assist lawyers and judges in their work, and initiatives to improve the legal system for the public.

Editor’s note: For more information about issues of indigent defense, visit the ABA Web sitewww.indigentdefense.org.

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