No need for lawyers on misdemeanor charges?

RICHMOND

No jail time. No attorneys. No need for the state to spend its scarce dollars.

At least, that was the thinking of some Virginia prosecutors who proposed a novel way to save money: They won't seek jail time for misdemeanor charges and the judge won't have to appoint a state-paid attorney to represent indigent defendants.

Supporters of HB1394 suggest that it will save Virginia several million dollars, although how much is unclear.

"I haven't seen anything like this," said Virginia Beach Commonwealth's Attorney Harvey Bryant, a supporter of the measure. "The funding situation is so serious that we'll look for cases where we'll say, 'We're not seeking jail time.' "

Commonwealth's attorneys floated this idea as a way to prevent deeper cuts into their budgets and staff. Instead of laying off prosecutors, the state would pay less for court-appointed attorneys.

Del. Robert Bell, R-Charlottesville, said the legislation is too broad and takes jail time off the table for misdemeanors such as domestic violence, drug possession and first-offense drunken driving.

"It's just going to be like a traffic ticket," Bell said. "Serious offenses will slip by."

The misdemeanors that qualify for jail time - in some cases up to a year, under current law - range from driving without a license, shoplifting and making threatening phone calls to stalking, sexual battery and prostitution.

A supporter of the bill, Springfield Republican Del. David Albo, said that in many cases, people convicted of misdemeanors, such as first-offense marijuana possession or simple assault, aren't sentenced to jail anyway. Prosecutors already have the authority to waive jail - this bill makes sure they do so when possible, he said.

Some area defense attorneys said the legislation, which also is backed by Gov. Bob McDonnell, could have harmful unintended consequences for defendants.

If defendants who can't afford an attorney want to fight a charge, they could be left on their own, said Michael Kmetz, a Norfolk attorney. Most people don't know the rules of evidence or when to raise procedural questions that could help their case, he said.

"I can count on one hand where I've seen an individual go in without a lawyer and win a case," Kmetz said.

He also worries that prosecutors and judges may use fines instead of incarceration as a way to make more money for the state. How are defendants who can't afford a lawyer going to be able to pay, he wondered.

Some defendants may have received a suspended sentence for a prior offense and pleading guilty to another offense could put them behind bars, noted defense attorney Moody E. "Sonny" Stallings Jr.

"Just because they're taking away a jail sentence doesn't mean that the seriousness of that event doesn't warrant an attorney," Stallings said.

Bryant said his office will have to review the cases to determine whether it's worth seeking jail for an offense. For domestic violence cases, he said he expects he will continue to request jail time.

Senators still have to consider the legislation.

The public likely will see reductions to many services because of the state's fiscal situation, said Dick Hickman, a deputy staff director for the Senate Finance Committee.

"There's lots of things in this budget for everybody to hate," he said.

Deirdre Fernandes, (757) 222-5121, deirdre.fernandes@pilotonline.com