Toward Justice in Virginia

THE QUALITY of counsel provided to poor defendants in Virginia is a disgrace. Court-appointed defense lawyers are among the lowest-paid in the country; public defenders' offices are grossly underfunded. And the consequence of the state's unwillingness to provide what the Constitution requires -- a meaningful right to counsel -- is that innocent people go to prison. The Virginia General Assembly, which convenes tomorrow, could do something about this scandal if it acts on two key recommendations adopted yesterday by the state's new Indigent Defense Commission.

The first recommendation would address the epidemic of botched appeals in Virginia that was documented in a series of Post editorials last year. Because of poor lawyering and irrationally harsh procedural rules, large numbers of inmates lose their ability to appeal their convictions when their lawyers miss filing deadlines. The commission has recommended a simple legislative remedy that ought to be uncontroversial. When an appeal has been dismissed because of a procedural error that is not the defendant's fault, the appeal could be restored by a simple petition to the trial court. While such a bill would not solve the problem of blown appeals, it would make them far less damaging in most cases.

The second recommendation would scrap the state's caps on fees for private lawyers representing the poor. Under current law, defending a single charge that can land a defendant in prison for life can net a lawyer no more than $1,096 -- no matter how many hours of legal work the case demands. Representation in a felony case that can yield a 20-year sentence can pay no more than $395. Such obscenely low figures are incompatible with even minimally competent legal services. The caps create a powerful financial incentive for lawyers to plead cases out quickly, rather than actively investigating and advocating. The commission recommended making the caps generally waivable by trial judges, which is the right answer to the problem but is also expensive. The General Assembly has treated the problem of indigent defense as purely a fiscal issue. This year it should recognize it for what it is: a matter of constitutional rights.