by Rob Poggenklass, Tony Dunn Legal Fellow
We’ve heard it over and over on TV and at the movies. When someone is arrested, they are read their rights, including that if they cannot afford an attorney one will be provided to them. Unfortunately, in Virginia this is not always the case.
The Constitution guarantees everyone the right to an attorney in a criminal case where they face jail time. But, the U.S. Supreme Court left it up to each state to determine who is too poor to afford an attorney, and the Commonwealth has taken advantage of this wiggle room. Virginia defines indigent, or “too poor to hire a lawyer,” as income equal to 125% of the federal poverty guidelines, a measurement developed to determine whether a person’s basic life needs such as food and shelter are met. For comparison’s sake, someone who makes 185% over the federal poverty guidelines still qualifies for the Women, Infants & Children program; someone who makes 150% over the poverty guidelines qualifies for the Low Income Heating Assistance Program; someone who makes 130% over the guidelines qualifies for the Supplemental Nutritional Assistance Program or the School Lunch Program. Yet under Virginia’s definition of indigency, a person who makes $7.01 an hour – less than the minimum wage of $7.25 – does not qualify for a court-appointed attorney. As a result, poor Virginians are facing jail time without their fundamental right to an attorney.
By using a rigid 125% federal poverty guidelines threshold, Virginia’s current definition of indigency does not consider how much a private criminal defense attorney costs. Nor does it factor in an individual’s true ability to pay, such as the impact of child support payments, student loans, or other regular debts on their overall budget.
When courts determine if a person is too poor to hire a lawyer, they look only at the person’s income – not at what the person will have to pay. The federal poverty guidelines were designed to track a person’s ability to purchase basic necessities of life, such as food and shelter. They were not designed to track a person’s ability to hire a lawyer. And, the federal poverty guidelines do not adjust depending on whether you are in a more expensive place to hire a defense attorney, like the D.C. suburbs, or a less expensive place, like Southwest. For Virginia to truly accept its obligation under to ensure access to an attorney for anyone facing jail time, it must take into account the true cost of counsel as well as each individual’s true ability to pay.
Fortunately, there is a bill at the General Assembly to remedy Virginia’s failure to provide this basic right. HB 1944 makes the cost of private counsel and an individual’s financial circumstances a factor of eligibility for a court-appointed attorney. Call your legislators and urge them to support this bill – to protect the fundamental right to an attorney.
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