RICHMOND, Va. -- Several pieces of legislation that aim to improve pay for attorneys for criminal defendants who cannot afford one are awaiting action from Gov. Glenn Youngkin. It is an issue that has led to fewer attorneys doing the work and was highlighted in a state report on the issue.
The legislation was among the discussion items at Tuesday's meeting for the Virginia Indigent Defense Commission (VIDC), which oversees those lawyers.
"We are overworked and underpaid as court-appointed attorneys," said attorney Stephen Mutnick, who serves as the commission member and works as a court-appointed attorney.
If someone cannot afford a lawyer in Virginia and are facing criminal charges that carry the possibility of prison time, they can either be appointed a public defender of a court-appointed attorney. Public defenders come from one of the offices set up covering 56 localities in the Commonwealth, like in Richmond and Chesterfield County.
In areas without a public defender office, like Henrico and Hanover Counties, judges assign court-appointed attorneys, who work out of private practices, to represent them.
But, while public defenders have seen pay increases in recent years (and can be supplemented by localities), advocates said court-appointed attorneys have not seen one in over two decades.
The lack of pay increase was one of several issues focused on in a report from the Joint Legislative Audit & Review Commission (JLARC), which found that low compensation was among the driving factors for the decrease in the number of lawyers willing to take on work as court-appointed attorneys.
JLARC said there were 4,000 attorneys who agreed to do court-appointed work in fiscal year 2013, but VIDC said in their most recent data from last fiscal year showed less than one thousand.
Court-appointed attorneys are paid an hourly rate of $90, which JLARC said was in line with most other states, but capped the amount that attorneys could charge, depending on the case they were working on.
"Court-appointed attorneys are often paid for only a small portion of the time they spend defending a client, primarily because of low pay caps set in statute. For example, the average estimated time needed to defend a misdemeanor DWI charge is about six-and-a-half hours (figure). An attorney spending that amount of time would be paid for only about 20 percent of that time because of the cap. In more than half of their cases, court-appointed attorneys are not fully compensated at the full hourly rate for all hours worked because of the pay cap," read the report.
"You're being paid, it works out to be on a misdemeanor case for an hour and 20 minutes of work. That's how much money -- that's how much you get paid for. The rest of it is free," said Mutnick, who added while the pay has stagnated the complexity of their work has not. "You've got body cam work now. You've got, you know, every major felony case comes with a hard drive full of electronic data that you have to review…Every case has a cell phone dump, which is usually hundreds of gigabytes of data."
Del. Jason Ballard, R - Giles, is also a member of the commission and does work as a court-appointed attorney. He appeared virtually as he was working cases in West Virginia and offered an example in the disparity in pay.
"In West Virginia, I can bill up to $3,000 on a simple misdemeanor case without anyone blinking an eye to pay that voucher. Just recently did a murder case about three months ago and submitted my bill for it was over $16,000 and it was paid without question," said Ballard. Under the current rules in Virginia, he could have only billed $1,200.
Legislation Passed with Bipartisan Support
Among the legislation approved by the General Assembly during this past session to address the above issues was a bill carried by Del. Atoosa Reaser, D - Loudoun, to raise the caps, depending on the type of charge.
"With the passage of this bill, Virginia will begin to more adequately compensate court-appointed lawyers for the time they need to prepare for complex matters. It's noteworthy, I believe, to add that Virginia is at or near the bottom of statutory caps across the nation and has which in Virginia have not been adjusted since the year 2000," Reaser said when presenting the bill before a subcommittee in January.
The bill was eventually approved nearly unanimously (only two abstentions in the House).
"This will move us up a little bit. But, it's improvement. The rates haven't been raised in 20 years. So, I think it'll be a very positive impact on court-appointed counsel," said Timothy Coyne, Deputy Executive Director of VIDC on Tuesday, who noted it only raises the cap by 75% of JLARC's recommendations.
"I'm tremendously proud that that got across the finish line. But, in my mind, there's still lots of work to be done. I think our court-appointed counsel are still woefully not compensated at the levels that they should be," added Ballard.
Another bill carried by Del. Rae Cousins, D - Richmond, would cap how much defendants would have to repay towards court fees at the current rates -- a concern that was raised during hearings on Reaser's bill, that the increased pay rates for attorneys would just be passed on to defendants who were already facing financial issues.
"Defendants would only be recent eligible for the cost that at this level right now," said Mutnick. "Defendants have to pay if they're found guilty. If they're found not guilty, the case is dismissed. They do not pay."
That bill passed 21-18 in the Senate and 50-46 in the House.
Finally, another bill, carried by Del. Ballard, seeks to clarify existing law to allow public defenders' offices to stop taking on additional cases if it will impact their ability to adequately represent those new clients. In those cases, a court-appointed attorney would be assigned. The JLARC report found that while staffing levels among public defenders has improved in recent years, their workload has increased an estimated 50% between fiscal years 2013 and 2022. It said not enough support staff was a contributing factor to workload challenges.
That bill was approved unanimously by both chambers.
Awaiting Action from Youngkin
Now, Gov. Youngkin has until April 8 to take action on these pieces of legislation. He can either sign them into law, amend them, veto them, or let them become law without his signature.
When asked what his stance is on these bills, a spokesperson for Youngkin said he is reviewing all legislation that has been sent to his desk.
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