Lawyers in Richmond’s public defender’s office, in the midst of a campaign to increase their salaries, say they’re paid so much less than the prosecutors they face in court that it raises questions about whether low-income defendants are getting a fair shake at justice.
“If you’re going to fund one side of the courtroom, then you have to fund the other,” says Lauren Whitley, Richmond’s deputy public defender. “And to not do that automatically results in inequity.”
The state-funded law office represents criminal defendants who can’t afford attorneys, and while they say no one gets into the line of work expecting to get rich, their office has seen 60 percent of their staff leave over the past three years, almost always for higher paying jobs, including in the city prosecutor’s office.
Whitley says all that turnover means defendants are often represented by lawyers with much less experience than the prosecutors on the other side of the courtroom. They calculated that almost half their office has less than three years of experience, compared to 12 percent, or five out of 40 lawyers, in the city prosecutor’s office.
That’s because public defenders, with salaries starting at $53,000, make almost 40 percent less on average than their counterparts in the prosecutor’s office, according to the defender’s office, which used Freedom of Information Act requests to obtain and compare salary data. Among their findings: 27 of their 29 attorneys make less than the highest paid administrative assistant in the prosecutor’s office.
While both offices are funded by the state at roughly comparable levels, the discrepancy comes down to local budgetary contributions. Most cities and counties chip in extra cash to boost salaries in their prosecutors’ offices. But very few make similar contributions to their local public defender offices.
Richmond, for instance, contributes $7 million every year to help supplement salaries and other budgetary needs in the prosecutor’s office. It contributes no money to the public defender’s office.
Low compensation for public defenders and court-appointed lawyers has been an ongoing issue in Virginia. A major reform in 2007 lifted the state’s lowest-in-the-nation compensation rates for court-appointed lawyers, who represent poor defendants in localities without public defender offices. However, the pool of extra money used to augment those low fees has been exhausted before the end of the fiscal year four times – most recently in April 2018, meaning court-appointed lawyers worked for a reduced rate until the new fiscal year began more than two months later on July 1.
In 2008, the General Assembly began allowing local governments to supplement the pay of staff in their public defender offices. (It’s up to the General Assembly to decide where and when to establish public defender offices – an approach many criminal justice advocates see as more cost effective and better for defendants than the court appointed system. At a forum Friday, prosecutors in both Chesterfield and Henrico said they supported establishing public defender offices in their respective localities, noting that the counties are among the largest in the state to operate without a public defender office.)
Local funds have been slow to flow to the offices. Currently at least four of 25 local public defender offices in the state receive local funding in addition to state funding: Alexandria, Arlington, Charlottesville and Fairfax.
The deputy public defender in Fairfax, Andy Elders, said the local salary supplement the county provides there isn’t enough to guarantee public defenders make as much as prosecutors with similar levels of experience, but that it was enough to stem high-turnover with which his office had been contending.
“I don’t think we’ve had anyone leave for money since,” he said, and that’s meant less time spent on training and on-the-job learning and more time meeting with clients and family members.
“It’s supposed to be an equal system and the scales are supposed to be balanced, but one side is literally getting millions and millions of dollars to fund or better fund their operations, and the other side doesn’t have that.”
In Richmond, the public defender’s office has calculated they need about $1 million in funding to achieve pay parity with the city prosecutors office. To make their case to the city, Whitley and Senior Assistant Public Defender Ashley Shapiro are highlighting their work to reduce recidivism and on specialty-dockets focused on drugs and mental health.
“I think sometimes those things are missed in the overall discussion about the role the public defenders play in the communities they work for,” Whitley said. “It’s like, sometimes, we hear, we pay prosecutors more because they help keep our community safer. I think we do, too.”
So far, it doesn’t sound like they’re facing much resistance. Interim Richmond Commonwealth’s Attorney Colette McEachin said she supports their request. “I know the city has limited resources, but the public defender’s job is just as important to maintain a balance in the criminal justice system as a prosecutor’s job,” she said.
Mayor Levar Stoney’s office sounded open to the proposal. “The budget team will give this request serious consideration,” his press secretary, Jim Nolan, said in an email. “As a supporter of criminal justice reform, the mayor believes public defenders should be compensated more competitively.”
Correction: An earlier version of this story incorrectly listed Loudoun as a locality that provides local funding to its public defenders office.