How Conservatives Learned to Love Free Lawyers for the Poor
by Shawn Stout
Lately it seems that We the People don’t agree on anything. Every issue breaks us into blue vs. red, North vs. South, urban vs. rural, coastal vs. middle, label vs. label. However, as a recent article in Politico points out, there is at least one political issue you might be able to safely discuss at Thanksgiving this year:
If you are charged with a crime in the United States, the Constitution guarantees your right to an attorney.
To some, “criminal justice reform” sounds like the cause of bleeding heart liberals. But the “right to counsel?” Undisputed and uncontroversial—It’s one of those constitutional principles about which liberals, conservatives, libertarians, and well, pretty much all Americans agree. it seems like some firm and common ground on which we can build as Americans.
Since we are in such accord, this must be one thing We the People are doing well, right?
Wrong. Here in Virginia, for example, attorneys for the indigent receive grossly inadequate compensation. The hourly rate for a court appointed indigent defender is currently $90, but Virginia has the lowest fee caps in the country. For example, in cases before the General District Court or the Juvenile & Domestic Relations Court, the fee awarded to a court-appointed attorney generally won’t exceed $120. Felony cases before the Circuit Court may not exceed a fee of more than $445, or sometimes $1235, if that felony is punishable by 40 years or life in prison. The court, in its sole discretion and not subject to any sort of appeal, may issue fee waivers in the amounts of an additional $155 or an additional $850 respectively when circumstances, such as time and effort expended, novelty or difficulty of the issues, or other circumstances might warrant such a waiver. Attorneys may request additional fee waivers up to $90 per every hour of work performed, but policies regarding the approval of these waivers vary greatly from jurisdiction to jurisdiction and even from judge to judge. Further, the General Assembly does not always fully fund the waiver system, so even granted fee waivers may not ever be paid.
This means that attorneys cannot financially sustain their practices by representing indigent defendants. In order to survive, they must maintain heavy caseloads and minimize time spent per client or case. The attorney’s incentives are to deal with each case quickly and move on to the next. That tends to conflict with the interests of the client, which creates an impossible situation for the attorney.
So just give them a raise, right?
Wrong again. Any effort toward increasing funding for indigent defense, like any other justice reform effort, tends to die a quick, quiet death in Richmond. While the Virginia Senate has in recent years managed to pass justice reform bills with bipartisan and almost unanimous support, Republicans in the Virginia House of Delegates have killed those same bills.
But in other places, justice reform is gaining ground with the help of conservatives, not despite them. The Politico article discusses how staunch Republicans in some of the reddest states have moved justice reform forward by framing it as a pushback against tyranny. A great example of such issue-framing: If you are convicted of a felony, you lose your right to have a gun, even if your overworked and underpaid court-appointed attorney completely bungled your case or talked you into to an unfavorable plea deal under immense government pressure. By focusing on the Constitutional protection against the evils of big government, conservatives in these states have had justice reform successes where traditionally liberal states have failed.
That’s not to say that everything is just peachy in the states where there has been progress. Nor will the same arguments tend to sway people in more liberal or politically diverse states. But it shows that justice reform can and does have support from a wide swath of the American public. If we focus on where we agree rather than the alternative, we can make meaningful progress on issues of justice. Even in Virginia, opinions can shift and politics can sway, and change can ultimately be achieved.
We must work together to uphold the right to counsel. That’s something on which we can all agree.