Virginia Lawyers Weekly//December 21, 2020
Virginia Lawyers Weekly//December 21, 2020//
About 10 years ago, the NFL’s New Orleans Saints were accused of having a system by which a player would earn a bonus for injuring an opposing player.
The NFL brass investigated, said it found irrefutable proof and fined the team and suspended coaches. Head coach Sean Payton was sidelined for a year.
You might be surprised to learn about a scheme that was in place, until recently, for determining how commonwealth’s attorneys’ offices were funded: the more convictions a prosecutor’s office obtained, the more money it got from the state compensation board for staff and expenses.
Sounds a lot like a bounty system.
Criminal defense lawyers had long suspected something like that was in play. But the funding mechanisms were quite complicated and difficult to figure out.
As part of a package of criminal justice reform bills this past winter, two bills (Senate Bill 803 and House Bill 1035) would have put an end to any such practice. The measures explicitly prohibited the compensation board from funding prosecutors’ offices based on the number of charges brought or convictions obtained.
The response from leaders in the commonwealth’s attorneys’ group: No one really has been trying to overcharge defendants to get more money or staff.
To get the reformers in the General Assembly to hold their powder, though, the prosecutors agreed to eliminate any incentives. They asked for time to study the issue, and the two bills were continued until 2021. (See “Unlinked: Prosecutors renounce funding incentives to pile on charges,” VLW, 11/30/20).
Now comes the difficult part: What is the best way to determine funding levels for the offices?
A group from the Virginia Association of Commonwealth’s Attorneys, led by Colin Stolle of Virginia Beach and Shannon Taylor of Henrico County, has been meeting with the compensation board trying to hammer out a proposal.
A short-term fix is in place. Funding is pegged to the number of local arrests, the number of Virginia State Police arrests and general population of the locality. No bounties in there.
The prosecutors appropriately have asked that local diversion programs be taken into account. If someone messes up, gets into a diversion program and succeeds, he or she won’t be counted in any of the statistics that have been used. Any formula needs to take those socially desirable goals in mind.
COVID-19’s impact has not spared prosecutors’ offices. Their operations are about as routine as those in any other law office, meaning they are not normal.
And VACA leaders have acknowledged that the coronavirus has slowed down the effort to overhaul the system for funding the commonwealth’s attorneys’ offices.
They have asked the Assembly for patience – which they are getting, along with credit for their diligence. We all can salute their good intentions and efforts.
It’s clear that the prosecutors know that they can’t go back to a system that just looks and sounds bad: You get more money from the state if you bring more charges and get more convictions.
And if that can’t be improved upon, then the reformers who sponsored the two bills filed this year should dust them off and put them back in the hopper for 2021.