Report to the General Assembly (Published)

Document Title

Alternative Indigent Defense Systems

Author

Joint Subcommittee

Enabling Authority

HJR 33 (1990)

Executive Summary

In 1985, the General Assembly created two joint subcommittees to study the related issues of (i) alternative methods of providing criminal defense services to indigent persons and (ii) the feasibility and desirability of expanding the public defender system beyond the then-authorized four pilot programs. These subcommittees met jointly and issued a report published as House Document No. 15 and Senate Document No. 11, 1986. The subcommittees recommended a fifteen percent increase in maximum fees allowed to court-appointed counsel and creation of a fifth public defender office in Portsmouth. Both recommendations wee approved by the 1986 Session of the General Assembly. Also in 1986, the General Assembly approved creation of a sixth public defender office, later established in Richmond.

Finally, the joint subcommittees recommended and the General Assembly approved continuation of the study of indigent defense systems. The stated purpose of the continued study was to evaluate the effects of implementation of the fee increase and expansion of the public defender system into a core city on the costs, availability and quality of legal representation for indigent criminal defendants. House Joint Resolution No. 51 (1986) also allowed the subcommittee to study and formulate recommendations on (i) the particular problems for counsel in capital cases, (ii) the need to establish uniform statewide eligibility standards for court-appointed counsel, (iii) the methods of selecting court-appointed counsel and (iv) the administrative procedures of the Public Defender Commissioner.

The issues under study are complex. The unavailability in 1986 of credible data needed to evaluate the effects of its 1985 recommendations hampered the subcommittee. Further, the constitutional sufficiency of the system used to provide counsel to indigent criminal defendants seeding post-conviction relief in capital cases was being challenged in a class action suit in the U.S. District Court for the Eastern District of Virginia. These factors resulted in House Joint Resolution No. 189(1987), which continued the study for another year.

During 1987, the Virginia Bar Association Special Committee on Indigent Defendants conducted a comprehensive statewide survey of lawyers and judges to ascertain their perceptions of the indigent defense system and identify ways to improve it. The Spangenburg Group, Inc., a consulting firm from Newton, Massachusetts, under a grant from the Virginia Law Foundation, began gathering statistical and financial data on methods currently in use for indigent defendants in post-conviction proceedings might prejudice the Commonwealth's position in the case. Again, the subcommittee, through House Joint Resolution No. 141 (1988), found it necessary to request continuation of the study to await the results of the Bar Association project and the Spangenburg analysis, as well as the decision of the U.S. Court of Appeals in the Giarratano case.

In 1989, the subcommittee filed a report (House Document No. 40) with the Governor and the General Assembly. The subcommittee recommended and the General Assembly approved another fifteen percent increase in the maximum fees allowed to court-appointed counsel. Additionally, the public defender system was expanded. Page County was added tot he existing office serving Clarke, Frederick, Shenandoah and Warren and the City of Winchester. Four new offices were authorized for Suffolk, Danville, Bedford (county and city) and for the City of Franklin and Counties of Isle of Wight and Southampton. These offices were expanded or added in response to local initiatives and not recommendations of the subcommittee.

Upon recommendation of the subcommittee, the 1989 General Assembly also authorized the Department of Planning and Budget to conduct a multi-agency study of the cost and policy implications of further expansion of the public defender system and modifications in the court-appointed counsel and public defender systems(House Joint Resolution No. 279, 1989). The department was asked to make recommendations for a cohesive, cost-effective method of providing a constitutionally sufficient system of representation for indigent criminal defendants. Again the subcommittee was continued to further analyze the need and methods for obtaining future fee increases for court-appointed counsel and expansion of the public defender system. The subcommittee wanted to work in conduction with the Department of Planning and Budget study and the Virginia Bar Association, particularly with regard to creation of some system of assistance for appellants in capital cases. Following the decision in the Giarratano case, the subcommittee felt that further review was needed of the desirability of creating an appellate defenders office and/or a resource center to assist in the preparation of capital murder cases.

Reports were not filed in either 1987 or 1988 as no substantive recommendations were made. The Department of Planning and Budget filed its report in 1989(House Document. 44, 1990). because the Department's report was requested by the subcommittee, a separate subcommittee report was not filed.

The joint subcommittee held three meetings in Richmond during 1989 and two during 1990.