Ron Cooper, C-VILLE’s legal columnist, contributed to the reporting of this story.
Consider a courtroom scenario in Albemarle County.
A man is charged with a crime but can’t afford a lawyer, and the top assistant attorney from the local public defender’s office represents him. Prosecuting the case is the top assistant Commonwealth’s attorney for the county.
The prosecutor is paid an annual salary of $97,404, according to projections for the upcoming fiscal year. The lawyer for the accused gets $66,327.
Charlottesville and Albemarle are poised to take a big step toward closing that gap. For the first time, the city and county’s draft budgets direct a small amount of local tax revenue—in total, about $120,000—toward supplementing the state pay of the attorneys in the Charlottesville-Albemarle Public Defender Office. That will make it only the second out of 25 offices in Virginia to receive local support.
The budgets represent a victory for James Hingeley, who heads the local office and has pushed for pay equity for his attorneys for years. But it’s about more than a pay raise for him and others in his office, he said.
“People have come to see that the work the public defenders do makes a vital contribution to society,” Hingeley said. “They’ve come to accept that fair trials for indigent defendants are important to the whole community, not just to the defendants themselves.”
It’s been 51 years since Gideon v. Wainwright, the Supreme Court decision that guaranteed legal representation for all people accused of crimes, regardless of their ability to pay. But when it comes to funding the promise of that landmark case, Virginia still falls short.
A 2004 study by the American Bar Association pointed out that in a sampling of 11 states, Virginia ranked dead last in average indigent defendant cost per case, and the lack of resources had led to substandard practice in those cases becoming “the norm.” One specific finding the report said was partly to blame: a sizeable gap in the resources available to public defenders, the state-salaried attorneys who work full-time on behalf of clients who can’t pay for a lawyer, and Commonwealth’s attorneys, their prosecutorial counterparts.
Hingeley has been working to change that locally for years, and he almost did in 2005. Local elected officials agreed to a public defender supplement that year, but then ran up against the Dillon Rule, which forbids localities from exercising powers not specifically granted by the state. Virginia didn’t have a law on the books that allowed cities and counties to pay their public defenders, Hingeley explained, so they couldn’t do so without running afoul of the law.
He helped change that in 2008, when he and others successfully advocated for a change in the state code that allowed for public defender supplements. But then the economy tanked, and local funding for new initiatives evaporated. He and other advocates, including Sheriff Chip Harding and former City Councilor Meredith Richards, tried and failed to get city and county to include supplements last year. This year, both did.
The proposal they put forward was based around equity, Hingeley said. They averaged the salaries of comparable positions in the Charlottesville and Albemarle Commonwealth’s attorney offices, and asked the localities to fund the difference between that average and the salary of similar positions in the public defender office. Charlottesville balked at that, Hingeley said; it steers significantly less money to its prosecutors than Albemarle, and elected officials felt the average differential gave the city the short end of the stick.
But the proposed budgets—still awaiting final approval next month—each include some public defender money. Albemarle would pay a total of $74,049. Charlottesville’s supplement amounts to $45,544. To compare: The county and city steered $354,384 and $258,911 toward their prosecutors’ offices last year, respectively.
Hingeley said the pay jump will make it easier for his office to recruit and retain talented lawyers, something pay disparity has made increasingly difficult.
“We’re losing people,” he said simply.
Valerie L’Herrou was one of those people. She interned in Hingeley’s office during her first year at Richmond University’s School of Law, and it inspired her to go into public sector work.
“I loved their passion and dedication to what they did,” she said.
She landed in the same office full-time after she got her JD. “I felt really lucky when the position opened up,” L’Herrou said. “It didn’t occur to me that I would essentially be stuck at the same pay scale for the rest of my career.”
She left a year ago, after seven years of watching her functional income go down thanks to no raises and increasing student loan payments. Now she works in career development at the University of Richmond’s law school, but she added her voice to the calls for pay equity during the local budget process with a letter to the Albemarle County Board of Supervisors last month.
At the heart of localities’ sluggishness to fund indigent defense is a sense that “we shouldn’t be putting money toward supporting criminals,” said L’Herrou. But she pointed out that many of the people she represented had landed in court for relatively minor violations of the law made more complicated simply because they were poor: A license suspended due to inability to pay fines, or a trespass charge for returning to a public housing development after an eviction. And of course, she said, some people charged with crimes are innocent.
Albemarle Commonwealth’s Attorney Denise Lunsford and her Charlottesville counterpart Dave Chapman—whose average estimated 2015 salary of $154,424 is 21 percent higher than Hingeley’s—have in the past been mostly mum on the issue. Lunsford declined to comment for this story. But Chapman said the defender-prosecutor salary disparity isn’t the only one worth drawing attention to.
“There are a whole host of people in the justice system who are grossly underpaid for the enormously valuable work that they do,” he said, and public defenders are in that category. His attorneys get far less than prosecutors in Albemarle, despite the fact that they do the same job. The results in his office are the same ones Hingeley described: “It’s getting harder and harder to recruit people, and it’s harder to keep them here,” said Chapman.
But Hingeley said the critical comparison is between public defenders and the publicly funded prosecutors they face in court.
“I think there’s been a growing awareness that everyone has a stake in a fair criminal justice system, and part of having a fair criminal justice system is having public defenders and prosecutors be equal partners,” he said.