Fixing a System That Denies Justice to the Poor
Sunday, July 18, 2004; Page B08
In recent years, Virginia has discovered that eight people, who together had been sentenced to one death sentence, five life sentences and a total of 387 years in the penitentiary, were innocent. These numbers should frighten all Virginians. When innocent people go to jail, guilty people go free.
The serial botching of appeals by attorneys for those defendants who could not afford to hire counsel, as described in a series of editorials [July 4-7], is a symptom of a system in crisis. Years of under-funding and the turning of a blind eye by members of the bench, the bar and the legislature are coming home to roost. As a result, Virginia's criminal justice system makes mistakes that ruin innocent lives and leave dangerous criminals on the street.
Despite the depth of the problem, the situation isn't hopeless. This year the General Assembly created the Virginia Indigent Defense Commission, which will set standards and develop training for all Virginia attorneys representing those criminal defendants who cannot afford to hire counsel. For the first time a Virginia agency will be committed to ensuring that every person accused of a crime receives quality representation from a lawyer who has the time, training and resources to do the job.
The editorials highlighted one area that is in desperate need of change: The process by which poor defendants appeal their convictions. In overwhelmed public defender offices -- where lawyers are focused on trial issues -- appeals can be given short shrift, which leads to errors.
Policymakers need look no further than the commonwealth's prosecutors to find a model on which to base reform. Local commonwealth's attorneys, who, like public defenders, are primarily involved in trials, have little responsibility for appeals. Rather, because the appeals process is a specialization that frequently requires a significant investment of time and resources, the state passes the bulk of the appeal work to a specific unit within the attorney general's office.
To establish a balance in the appeals process, state policymakers need to create and fund an appellate defender office that can serve on equal footing with the attorney general's office. In addition, when courts appoint members of the private bar on appeal, the attorneys should not be subject to an arbitrary fee cap that limits the hours for which they will be paid.
Virginia's failure to ensure a fair and balanced criminal justice system reaches far beyond the appeals process. The Constitution guarantees all Americans access to legal representation when facing prison time for criminal charges. If someone cannot afford to hire an attorney, the court is required to appoint one. When fully realized, this basic right protects the innocent, convicts the guilty and keeps communities safe.
However, in Virginia the promise of protection implicit in the right to counsel is often a hollow one. Virginia's public defenders carry caseloads far in excess of national standards. During fiscal year 2002, for example, attorneys in Leesburg's public defender offices, an office cited by The Post for missing appeal deadlines, handled an average of 586 misdemeanor and felony cases. This number is more than 45 percent higher than caseload standards in other states for attornies who handle only misdemeanors. Such an overload almost guarantees errors.
Private, court-appointed counsel face analogous difficulties. Virginia's lowest-in-the-nation fee caps make it nearly impossible for attorneys to be paid for all of the work necessary to provide the individual attention that each client deserves. It is no wonder that Virginia received an "F" for the imbalance of resources between prosecution and defense in a 2003 report card based on the American Bar Association's 10 Principles of a Public Defense Delivery System.
The recently enacted legislative reforms in Virginia are critical, but a long road stretches ahead. Policymakers who wish to ensure that the Virginia legal system can protect communities from crime need to support both strong prosecutor offices and strong defense attorneys with the time, the training and the resources to represent all those accused of crime. Only then can they be confident that in Virginia the quality of justice does not depend on an ability to pay for it.
-Richard C. Goemann
is the executive director
of the Virginia
Indigent Defense Commission.
© 2004 The Washington Post Company