From inception, the nation’s criminal justice system has had an unhealthy set of roots in slavery and racism. A sample of that codex is found in the 13th Amendment, passed in 1865, which declared slavery unconstitutional but hedged with “except as punishment for crime whereof the party shall have been duly convicted.” National and local jurisprudence, or philosophy of law, has largely been in accord with that relationship, including courts and prosecutors, and, often, defense counsel.
Equity and fairness in the administration of criminal justice has been shown to be tainted by a number of factors, many of which tend to be implicitly biased and somewhat invisible to an individual’s common sense of justice.
Equity and fairness in the administration of criminal justice has been shown to be tainted by a number of factors, many of which tend to be implicitly biased and somewhat invisible to an individual’s common sense of justice. For example, prior to 1963, it was not a popular view that a criminal defendant, unable to afford an attorney, was entitled to one under that same US Constitution (Gideon v. Wainwright) that excepted slave labor as punishment for crime.
Toward the end of 2020, two circuit court judges in Virginia rendered judicial rulings that acknowledged yet other subtle biases that compromise the adjudication of accused individuals. One decision determined that the presence of an oil portrait of Robert E. Lee in the courtroom could be an influence in the first degree murder trial of a Black defendant. In the other, the ruling found the inability of defendants to post cash bail to be unconstitutional. The existence of such barely perceived barriers is neither harmless nor inconsequential when freedom and liberty are at stake.
Previously, VoxFairfax criticized the Commonwealth’s rather strict adherence to the infamous Dillon Rule, requiring localities to secure authority from the General Assembly for most local initiatives, concluding that democracy favored its moderation in favor of enhanced home rule autonomy for localities. As it turns out, the Dillon doctrine is not nearly as strict as generally understood. A somewhat peculiar twist in the function of the rule compromises equity and equality in the state’s criminal justice system.
Commonwealth’s Attorneys offices are funded in the main by the state as constitutional officers for both administrative and legal staff. There is no comparable constitutional office for public defenders, except those authorized by the General Assembly. A county seeking to create a public defender’s office must–under the Dillon Rule–petition the General Assembly for approval and funding. At the same time, local governments have the option to supplement the functions of Commonwealth’s Attorneys offices by providing additional salary benefits for attorneys and staff, which a number of localities have done.
The result of this Dillon doctrine twist is that public defender salaries in some instances are pegged at far less than that of Commonwealth’s Attorneys offices, creating an inequity in recruiting top legal talent. In some areas, the local contribution results in a salary differential of $20,000 per year. Equity and equality in jurisprudence demands that a better defense strengthens prosecutions to avoid reversals on appeal or unjust results that later cost the jurisdiction dearly for wrongful convictions.
The principle of Gideon has been firmly entrenched in our criminal justice system but has not been raised to a level conforming to the necessity of equity and equality. Encouraging Virginia localities to continue to tilt the scales of justice by supplementing prosecutorial pay rates is simply another subtle, unappreciated bias that compromises everyone. State public policy must be neutral, not subject to manipulation or favor to one standard over another.
The legislature has the obligation to ensure fair and equitable administration in the state’s criminal justice system. When it acknowledges the Dillon doctrine in the establishment of local public defenders, it must require funding parity with prosecutors’ offices.
Symbols of bias such as Confederate portraits in courtrooms and cash bail do not disappear on their own. In the same way, the legislature has the obligation to ensure fair and equitable administration in the state’s criminal justice system. When it acknowledges the Dillon doctrine in the establishment of local public defenders, it must at the same time require funding parity with prosecutors’ offices. The Richmond City Council recently voted in favor of this parity for its public defender program overruling the mayor who argued it was the state’s responsibility.. Avoiding or deflecting from this duty will, sooner or later, result in further damage to justice in Virginia.
It is not difficult to foresee that a class action or another adverse appellate ruling will ultimately force adoption the equities discussed here. Politically, adhering to the Dillon Rule dogma sometimes is no excuse for ignoring it at others.