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Va Indigent Defense Aba Report, 2005

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Primary Indigent Defense Delivery System: Public Defender/Assigned Counsel*
Population in 2002: 7,293,542**
Percentage of State Plus County Expenditures in FY 2002 Attributable to State vs. Counties:
100% from State**
*Source: “Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice,” by the ABA Standing Committee on Legal Aid and
Indigent Defendants, at page 5 (December 2004), available at
**Source: “State and County Expenditures for Indigent Defense Services in Fiscal Year 2002,” by The Spangenberg Group (on behalf of
the ABA Standing Committee on Legal Aid and Indigent Defendants), at 4 and Table (September 2003), available at

During the 40th anniversary year of the U.S. Supreme Court’s decision in Gideon v. Wainwright, the
American Bar Association’s Standing Committee on Legal Aid and Indigent Defendants (ABA SCLAID)
in 2003 held a series of public hearings to examine the implementation of the right to counsel in
state court proceedings for poor persons accused of crimes. In January 2005, ABA SCLAID
published its final report based on the testimony provided at the hearings, entitled “Gideon’s Broken
Promise: America’s Continuing Quest for Equal Justice.” This information sheet contains a short
summary of the “Problems in Indigent Defense” that were reported by one of the hearing witnesses,
as well as “Recent Reform Efforts” in Virginia. For the complete information regarding each of the
statements listed below (including references to hearing transcripts, reports, and other supporting
materials), please see “Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice,”
available at

Problems in Indigent Defense
The following problems were reported by the hearing witness:

National standards recommend that indigent defense attorneys receive reasonable
compensation for reasons of fairness and to encourage vigorous representation; specifically,
the standards maintain that assigned counsel should be paid a reasonable hourly fee in
addition to actual overhead and expenses. Yet, as one witness remarked, “Virginia’s current
maximum rate of compensation for court-appointed counsel is $90 an hour. It sounds pretty
good. However, it is subject to the lowest unwaiveable fee cap in the country. For example,
in a complicated case involving three or more appearances, a felony delinquency case in
juvenile court, private assigned counsel can only receive a total of $112, or 1.25 hours of
pay, for representing the client.”


In Virginia and many states, unlike prosecutors, neither public defenders nor assigned
counsel have access to expert assistance, except by demonstration of need. However, in
Virginia judges usually require such demonstration in open court, unfairly forcing defense
counsel to disclose defense strategies to the prosecution.


National standards recognize the duty of defense counsel to maintain regular contact with
the client, seek to establish a relationship of confidence and trust with the client, and adhere
to ethical confidentiality rules. Yet in Virginia, some lawyers meet their clients at the last
Copyright © 2005 American Bar Association

minute in court, and since many courthouses have no private place for these meetings, the
last-minute contact is not a confidential conversation between attorney and client.

High caseloads in Virginia discourage both assigned counsel and public defenders from
spending sufficient time investigating and preparing cases and meeting with their clients.

In addition, the hearing witness reported that:

problems resulting from funding and resource inadequacies were exacerbated during 2003
due to the state’s enormous budget deficit;
compensation and support for public defenders in Virginia lag far behind their prosecution
indigent defense representation frequently is provided by attorneys who are inexperienced in
the practice of criminal law or straight out of law school; and
traditionally, there has been a lack of statewide oversight and structure for indigent defense
services, resulting in a hodgepodge of local systems that are unsupervised and vary greatly in
their effectiveness.

Recent Reform Efforts

In the summer of 2004, Virginia enacted legislation establishing a new Virginia Indigent
Defense Commission, which will oversee both assigned counsel and public defender
programs throughout the state beginning in July 2005. Prior to this legislation, although
public defender offices served 48 of 134 judicial districts and assigned counsel provided
representation throughout the state, Virginia maintained a regulatory agency that supervised
and supported only public defenders. Among its other duties, the Virginia Indigent Defense
Commission is charged with setting caseload limits and establishing and enforcing
qualification and performance standards for indigent defense representation. Virginia’s
2004 legislation is by no means a panacea for all that ails that state’s indigent defense
system, but it is an important step on the road to real improvements. Among its deficiencies,
the legislation provides no additional funding for indigent defense services, although the
inadequacy of state funding has been well documented. For example, Virginia has the
distinction of having the lowest, non-waiveable statutory fee caps in the nation on the
amount that can be paid to assigned counsel.


Bills to establish the Virginia Indigent Defense Commission resulted from recommendations
made by the Virginia State Crime Commission following a two-year study.


The legislation also closely adhered to one of the main recommendations of an ABA report
released in February 2004, which documented severe deficiencies in Virginia’s indigent
defense system. The comprehensive study was conducted on behalf of ABA SCLAID by The
Spangenberg Group and supported by contributions from the Open Society Institute, the
National Association of Criminal Defense Lawyers, and the law firm of Covington & Burling.
The report concluded that “Virginia’s indigent defense system fails to adequately protect the
rights of poor persons who are accused of committing crimes” and recommended the
creation of a statewide commission with oversight of both assigned counsel and public
defenders. The release of this report garnered significant national and local media attention,
which in all likelihood aided in passing the reform legislation.

Copyright © 2005 American Bar Association


Following the release of the ABA report, the Bar Council of the Virginia State Bar adopted the
ABA Ten Principles of a Public Defense Delivery System and established a task force to
recommend further indigent defense improvements for consideration by the newly-created
Virginia Indigent Defense Commission and the General Assembly.


In August 2004, the Virginia Bar Association weighed in on the issue with a series of articles
in its official publication, including an article by the bar association’s president critiquing the
current system and calling upon all Virginia lawyers to join in the fight for reform.


During the past several years, the Virginia Indigent Defense Coalition (VIDC) also has played
an important role in achieving indigent defense reform in Virginia. Aided by the National
Association of Criminal Defense Lawyers and a grant from ABA SCLAID’s Gideon Initiative, the
VIDC was formed in 2001 by a group of Virginia defense lawyers who realized that the
success of any reform effort would depend upon support from the entire community. Thus,
citizen groups and community organizations were recruited to form a broad-based coalition
in order to raise public awareness of Virginia’s indigent defense crisis. VIDC public and
media education projects have included a report card grading Virginia’s indigent defense
system based on the ABA Ten Principles of a Public Defense Delivery System. Since its
inception, the VIDC also has met with state policymakers and judges, submitted a report to
the Virginia Crime Commission, and drafted and secured passage of a legislative joint
resolution establishing a study committee to examine whether Virginia should have a
statewide indigent defense commission.

Copyright © 2005 American Bar Association