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Public Defenders Say Pay Parity Critical to Justice System Reforms

Building with glass facade
The John Marshall Courts Building in Richmond. (Photo: Crixell Matthews/VPM News)

In Richmond, attorneys who represent people who can’t afford a lawyer are asking the city to help pay their salaries. Like many public defenders across the country, they say they struggle to keep lawyers on staff, which makes it difficult to provide equal justice for people accused of crimes.

After years of campaigning for more money, the office might finally get the funding it’s asked for as the city deliberates this year’s budget.

The state of Virginia pays the salaries of both the Commonwealth Attorney’s office and the public defender’s office. But the city supplements the salaries of its prosecutors.

“Right now, it certainly sends a very clear message that this city only cares about funding the prosecution and policing of people in this city and does not want to fund the defending of people and the defending of people’s constitutional rights in this city,” said Ashley Shapiro, the senior assistant public defender for the Richmond Public Defender’s office. “And that became all the more apparent this summer when we were defending all the protest cases that the police and prosecution kept bringing.”

But this year, despite an austere budget proposal from Mayor Levar Stoney, members of the city council are prioritizing new funding for the public defender’s office.

“I’m certainly hopeful,” Shapiro said., “It was really heartening that we had, not one, but three city council people propose different budget amendments for us.”

Shapiro’s office has asked the city for just over a million dollars, which will bring the office much closer to parity with the Commonwealth’s Attorney’s office. 

This money will largely improve retention, Shapiro said. Attorneys in her office often leave for higher-paying jobs when they want to start a family or buy a home, for instance. 

“People don’t have to make those decisions at the Commonwealth’s Attorney’s office because it’s a much higher salary,” she said. “They keep people much, much longer than we do.”

City Councilwoman Stephanie Lynch, who introduced one of the budget amendments, said it’s hard to justify padding the salaries of the prosecutor’s office so much so that they’re earning almost double the salary of public defenders in the city.

“We created that disparity, not because of their constitutionally-mandated duties,” Lynch said. “We created it because of the argument that we would have safer communities -- and I put that in air quotes -- by having more competitive salaries and higher paid prosecutors in the prosecutor's office.”

Many localities in Northern Virginia have already introduced pay parity among public defenders and prosecutors. The same has happened in Charlottesville and Albemarle County. This year, public defenders in Virginia Beach are also petitioning their city council for pay parity.

“Having an adequately funded public defender’s office is an equity issue,” Lynch said. “And that’s why other localities have chosen to pursue this.”

The U.S. Supreme Court ruled in 1963 that the right to counsel is a fundamental right essential to a fair trial. But some legal experts say states have fallen short in their responsibility to fund public defense systems.

The Brennan Center for Justice at New York University School of Law published a study in 2019 that found underfunding indigent defense services is partially to blame for driving mass incarceration.

Darryl Brown is a law professor at the University of Virginia and a former public defender. He said the public defenders have always struggled to find consistent public support throughout the country, not just in Virginia.

“There’s never been a good solution for how to sustain that public funding for an unpopular cause,” Brown said. “There are definitely places where the public defenders are just inexcusably overworked and overburdened and can’t possibly do a good job. On the other hand, there are pretty good studies comparing public defender representation to private attorney representation for poor people, and the public defender’s actually come out well.”

Now with an increased focus on criminal justice reform and mending racial disparities, public opinion may be shifting. Brown said there’s a “modest” trend toward more state involvement in overseeing and funding public defenders, rather than leaving it to localities.

“To me the best solution would be if states would commit themselves to these parity statues and require that they pay their public defenders and their prosecutors the same and also keep those offices staffed equivalently,” Brown said.

In 2016, the public defender’s office in New Orleans began refusing some clients due to underfunding. This resulted in a federal lawsuit by the American Civil Liberties Union. The city eventually approved historic levels of funding for the office.

In Richmond, the city council is in the midst of budget negotiations that will fluctuate between now and mid-May when the plan is finalized. 

Finding the money to supplement the public defender’s office is part of those negotiations. Some of the proposals  include trimming the mayor’s proposed budget increases and even siphoning money from the prosecutor’s office.

Commonwealth’s Attorney Colette McEachin said she supports equitable funding for public defenders, but said it’s not appropriate for that money to come from her office.

“I don’t think that is part of the equitable agenda that the city of Richmond is supporting and that our office supports,” she said. “We are the ones who make sure that search warrants are appropriate and validated. There’s a whole checklist of things that commonwealth’s attorneys do that Public defenders do not.”

Ashley Shapiro said her office doesn’t care where the money comes from. What’s most important is that the city prioritizes the public defense, in the same way it prioritizes prosecution.

“The optics of that make people feel like they’re not going to get a fair trial,” Shapiro said. “And it makes people feel like the deck is stacked against them. Because funding-wise it is.”