(The Center Square) — Everyone is entitled to a defense, but those willing to serve as court-appointed lawyers in Virginia are growing scarce, and public defenders need more staff to serve their clients properly.
Virginia’s Joint Legislative Audit and Review Commission presented a report to members of the General Assembly showing that state caps on court-appointed attorney fees are “embarrassingly low,” according to one judge, and there are neither enough public defenders to meet demand nor enough support staff.
The commonwealth supplies either a public defender or a court-appointed attorney for those who can’t afford representation. Virginia currently has 430 public defender positions, and it relies on about 2,000 private attorneys at any given time who can serve as court-appointed attorneys when a public defender is unavailable.
JLARC’s study found that court-appointed attorneys “defended 54% of the charges for which the state provided representation” and that there was no real difference in the outcome for clients between court-appointed attorneys and public defenders. Both have a majority of “good” and “excellent” lawyers, according to judges.
But there has been a decline since 2013, accelerating since 2020, in lawyers willing to serve as court-appointed attorneys, and most attribute the low interest to low pay. While Virginia pays a sufficient or nearly sufficient hourly rate of $90, there are statutory pay caps that correlate to the type of crime. Virginia’s have not been raised in more than 20 years.
To defend a client charged with a misdemeanor, the pay cap is $120, enough to pay for about 1.3 hours of the lawyer’s time.
A public defender typically devotes about 6.5 hours to a case in which the client has been charged with a misdemeanor DWI, according to the National Center for State Courts. In such a case, Virginia’s pay cap would cover about 20% of the total cost for defense. For a juvenile charge, the pay cap is the same ($120), but the pay disparity is even greater, as public defenders typically spend about 10 hours on those cases.
The commonwealth had close to 4,000 active court-appointed attorneys in 2013. Ten years later, in 2023, it has about 1,900, and most of that decline happened since 2020. Between 2013-19, Virginia lost about 200 court-appointed attorneys; from 2020-23, it lost over 1,600.
The commission recommended that the General Assembly devise updated pay caps for court-appointed attorneys, increasing the pay and better aligning the caps with the offense category and the time it takes to provide a defense.
The commission also found that the General Assembly may have to devote additional funding to creating more public defender positions and increasing their staff.
Despite recent recruiting efforts, there remains an 8% vacancy among public defender positions in the commonwealth. And even if all 430 positions were filled, that would still be about 13% less than what’s needed to handle the current workload.
Public defenders also reported being short-staffed.
“Most offices have a single position for each type of support staff, because of limited funding,” the report said.
The statewide average for attorney-to-paralegal ratio is 13 to 1 (some offices are much worse), while the National Association for Public Defense recommends a four-to-one ratio.