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JLARC Reviews State’s System of Indigent Defense and Criminal Prosecution

The Joint Legislative Audit and Review Commission (JLARC) received a report at its November 13 meeting on the results of a study of the state’s system of indigent criminal defense and prosecution of criminal cases.

JLARC staff found that the state’s public defenders provide effective representation, but that workloads in public defenders’ offices have risen due to more challenging and complex cases requiring more time to prepare and defend.  Although recent efforts by the General Assembly to improve staffing and salaries for attorneys have helped to fill vacant positions, even if all vacant positions were filled, the public defender system would have enough attorneys to handle only 87 percent of its workload; staff suggested that the creation of new offices might be considered in the future after filling all currently allocated positions and assessing the impact on offices’ workload.  In the near term, JLARC staff highlighted insufficient support staff positions as another area of pressure on public defenders’ offices, and recommended increasing funding for mitigation specialists and paralegal positions as a cost-effective way to reduce attorneys’ workload.

JLARC staff also found that vacancies in Commonwealth’s Attorneys’ offices have increased in recent years, with offices experiencing more turnover in attorney positions and longer times needed to fill vacant positions.  Similar to public defenders’ offices, even if all positions currently allocated by the Compensation Board were filled, state-funded staffing would not be adequate to meet the statewide workload.  The new staffing standards adopted by the Compensation Board this summer after a study by the National Center for State Courts would provide a 15 percent increase in staffing (at a cost of $9.2 million annually to the state).  These standards reflect workload calculations for prosecuting felonies only; an additional 391 positions would be required for Commonwealth’s Attorneys’ offices to prosecute all misdemeanors.  JLARC’s report also documents the significant local commitment to supporting Commonwealth’s Attorneys’ offices, pointing out that localities reported providing $22.7 million to supplement salaries for state-funded positions in FY 2023 (a 28 percent increase over the state salaries), in addition to funding 292 additional attorney positions at purely local expense (at an estimated cost of $30 million).

The report discusses recent state efforts to increase salaries for public defenders and Commonwealth’s Attorneys’ staff, as well as local supplements to these offices.  While most Commonwealth’s Attorneys’ offices receive local salary supplements, about half of public defender offices (which are composed of state employees) receive a local salary supplement, and these supplements are generally lower than those provided to prosecutors; public defender offices with a smaller difference between their salaries and the compensation of prosecutors in their locality generally have fewer vacancies and less turnover.  However, the report notes that there is no state policy requiring parity in these supplements.

JLARC staff also reviewed the state’s system of representation by court-appointed attorneys, pointing out that low caps on compensation have discouraged attorneys from serving in this role.  The overall number of court-appointed attorneys has declined since FY 2013, with the numbers dropping more rapidly in the last few years and the decrease affecting some areas of the state more significantly.  Although Virginia’s hourly rate for court-appointed attorneys is largely in line with rates in other states, Virginia’s caps on overall compensation per case, which have not changed in more than 20 years, are lower than neighboring states.

Staff provided a series of recommendations and policy options in the report, including:

  • Increasing pay caps for court-appointed attorneys representing indigent clients. Staff recommended that if the General Assembly increases pay caps, it may wish to consider restructuring the categories of offenses for court-appointed attorney payments.
  • Including funding for additional support staff to assist with the workload of attorneys in public defender offices.
  • Increasing state funds for career prosecutor pay stipends and limiting these stipends to attorneys in offices where the locality does not provide salary supplements to Commonwealth’s Attorneys’ staff. (This proposal is intended to address a situation noted in the report in which offices with greater local salary supplements also have more career prosecutors.)
  • Expanding the number of existing positions in public defender offices designated as senior trial attorney positions in order to provide career advancement for public defenders. Establishing pay bands for public defender attorney positions to allow effective attorneys to receive higher salaries without being promoted to a new job title.

VACo Contacts:  Katie Boyle, Jeremy R. Bennett, and Phyllis Errico, Esq., CAE

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