Protecting Virginia’s Forgotten Constitutional Right

By Elwood Earl “Sandy” Sanders, Jr.

The Constitutional rights of Virginians are in danger every day. No, not the usual suspects like freedom of speech and the right to bear arms, but rather the Sixth Amendment Right to Counsel.

The Commonwealth has a crazy quilt of counties and cities. Many jurisdictions have a public defender office but many do not. In the Richmond metropolitan area, the cities of Richmond and Petersburg have public defenders, but Henrico, Hanover and Chesterfield counties do not. In Northern Virginia, every county and city surrounding Prince William County (and the cities and towns within) has a public defender office, but Prince William does not. Hampton and Newport News do, but York and Gloucester do not. This disparity verges on unequal justice under law.

Many court-appointed bars in the non-indigent-defense counties and cities do a yeoman’s job representing poor individuals accused and convicted of crimes. But public defenders enjoy immense institutional advantages. They have personnel such as sentencing specialists, appellate specialists, investigators and support staff. They mentor the newer lawyers. The training and accountability are more than adequate. The ordinary court-assigned attorney simply does not have these resources available.

These institutional advantages of public defenders over court-appointed attorneys raise serious questions of inequality.

The good news is that the Commonwealth already has the resources to establish a more equal system: The judiciary in 2012 brought in an astounding $280 million more than it spent in expenses and personnel. Now, that may be an indictment of the amount of court costs but the funds are there. The budget just passed this session includes this policy language:

Given the continued concern about providing adequate compensation levels for court-appointed attorneys providing criminal indigent defense in the Commonwealth, the Executive Secretary of the Supreme Court, in conjunction with the Governor, Attorney General, Indigent Defense Commission, representatives of the Indigent Defense Stakeholders Group and Chairmen of the House and Senate Courts of Justice Committees, shall continue to study and evaluate all available options to enhance Virginia’s Indigent Defense System.

Sen. Rosalyn Dance, D-Petersburg, introduced a bill to study a statewide indigent defense system in the 2016 General Assembly. The measure floundered in the Senate Rules Committee until that committee’s chair, Sen. Ryan McDougle, R-Mechanicsville, saved it with an amendment limiting the study to creating a statewide appellate defender’s office. The bill passed the Senate but died in the House. In 2017 session, the bill never made it out of the Senate Committee.

Other states have a statewide public defender system. Colorado is one example of a state with an integrated comprehensive system. There are issues with any delivery of legal services, mostly in attorney workloads, but the budget allocation for Colorado, a state of just over 5.3 million, is $86 million. Virginia’s indigent defense budget is about $46 million. Millions more are spent for court-appointed services, mostly in jurisdictions without a public defender office, and a fee waiver program.

Even if the statewide public defender system cost $120 million per year, the judicial branch could generate that sum without a tax increase. Funds could be drawn from split-recovery for punitive damages, or, to prevent the hint of a conflict, could be diverted from forfeiture to indigent defense services.

I am fully aware that excess funds raised by the judiciary in the Commonwealth are spent in the General Fund by the politicians in Richmond. However, resources to establish the statewide indigent defense system without directly invading the General Fund to do it.

We need to establish a constituency in favor of the Sixth Amendment Rights of every Virginian. I propose a umbrella coalition, primarily on social media and through resolutions of support, of organizations that will make indigent defense a priority. If you favor a right to reproductive freedom, or to own a gun, or to free speech, or to immigrant’s rights, if you are a Tea Partier who believes we should follow the WHOLE Constitution, than you need to join us.

Contact me at the email address below to start an umbrella organization to agitate for a more adequate indigent defense system in the Commonwealth.

Elwood Earl “Sandy” Sanders, Jr., is a licensed attorney in the Commonwealth of Virginia since 1985 and was the first Appellate Defender, conducting appeals for indigents in the Virginia Court of Appeals and Virginia Supreme Court.  He is also a blogger for Virginia Right (www.varight.com) and a political activist from Mechanicsville.  All Sandy’s views are Sandy’s views and no one else’s. You can contact him at ssanders[at]varight.com.