In the 1963 case of Gideon v. Wainwright, 372 U.S. 335 (1963), the United States Supreme Court changed the complexion of our criminal justice system. The Court ruled that every criminal defendant facing a deprivation of their liberty, i.e. a jail sentence, was entitled to competent representation by an attorney. This ruling made it incumbent on the state, local or federal government to provide an attorney if a criminal defendant could not afford one. This ruling, and its progeny, have led to the system of justice that many are familiar with today. This system is known as the public defender.
In most large localities, indigent criminal defendants are represented by attorneys in a government run public defender’s office. In the Commonwealth of Virginia, 53 of the 135 counties and cities have a public defender’s offices. Va. Code § 19.2-163.04. In the counties and cities that do not have a public defender’s office, private attorney’s volunteer their time at a reduced rate to defend those defendants that cannot afford an attorney. The rates of pay are established by the Supreme Court of Virginia and the Code of Virginia. Va. Code § 19.2-163. court appointed attorneys are compensated at a rate of $90 an hour, but are limited by code to a maximum of $120 on misdemeanor cases, $445 in certain felony cases, and $1,235 in felonies punishable by more than 20 years. The code allows for a waiver of the fee cap, but those are rare and there is a maximum amount earmarked for those each year, and when that fund is depleted, no more waivers are allowed. Public Defender Office attorneys are compensated through a salary structure.
Many states use private attorneys who volunteer their time, or contract with private law firms to provide public defense services. One such state is Washington, which has become the focus of a fight over the public defense system in the United States.
Earlier this year, a federal judge in Washington ruled that system used by two cities in Washington was systematically flawed and therefore criminal defendants were not receiving constitutionally adequate representation. In the case of Wilbur v. City of Mount Vernon, the Court found that “municipal policymakers have made deliberate choices regarding the funding, contracting, and monitoring of the public defense system that directly and systematically caused the deprivation.” Wilbur, Case 2:11-cv-01100-RSL, p. 2. The Court found that the attorneys were so overworked and underfunded that they could not provide even basic representation to criminal defendants, using what was described as a “meet and plead” system that allowed for no confidential conversations between the attorney and client, nor investigation of the case. Wilbur, p.3. The Court found that this was a result of “intentional choices made while negotiating the public defenders contracts and allocating funds at such a paltry level that even a brief meeting at the outset of the representation would likely make the venture unprofitable.” Wilbur, p. 15.
The “mere appointment of counsel to represent an indigent defendant is not enough to satisfy the Sixth Amendment’s promise of assistance of counsel.” Wilbur, p. 13.
The Court in Wilbur ultimately found that the City was liable for the systematic denial of effective assistance of counsel for indigent defendants. The Court set forth certain guidelines for the cities in this case to follow in order to improve their ability to provide representation in criminal matters, to include an increase in supervision, reevaluate the contracts, and procedures for allowing attorneys and clients to meet. To read the full opinion, go to http://aclu-wa.org/sites/default/files/attachments/2013-12-04–Dkt%20325–Memorandum%20of%20Decision.pdf
The case in Washington is indicative as to how the criminal justice system is suffering due to the budget problems the state and federal governments are facing. The criminal system is one of the sectors of the government that most citizens have contact with in their lives, be it as a witness, victim, or criminal defendant. The inability of that system to attract and keep talented individuals is waning everyday as more money is drained from the system.
The Court in Washington pointed out that without the proper assistance of counsel; the right to counsel is not a right at all. The ability of an attorney to defend his or her client, and create the adversarial environment is the cornerstone on which our system of justice is built on.
Court appointed attorneys accept that role, not because it pays well, but because of a belief that every person who goes through the system has a right to the best defense, but it should not only be the best defense money can buy.