Fairfax County public defenders seek equal pay with prosecutors

While Fairfax County regularly makes headlines for its diversion initiatives and other criminal justice reform efforts, an imbalance in funding for prosecutors and defense attorneys remains unaddressed, the local public defender’s office says.

Dawn Butorac, the county’s chief public defender, said her office’s 25 attorney positions are around half the number of lawyers that Commonwealth’s Attorney Steve Descano’s office has, and that gap is only going to worsen if a proposed county budget is adopted without changes this May.

“There are significant disparities between the salaries of an attorney at the same levels in each of our offices,” she said during a budget hearing last Thursday (April 14) before the Board of Supervisors. “It creates an unequal and unfair criminal legal system.”

Butorac said Descano makes over $50,000 more per year than she does.

“We’re asking the board for help so that we can continue to provide the level of service and representation that every person in Fairfax County deserves, regardless of their income,” Andy Elders, deputy public defender, said during another budget hearing, noting that his office is down two attorneys.

Butorac said they take every appointed case and never reject anything. The office represents clients who otherwise would be unable to afford an attorney.

According to budget materials for the upcoming fiscal year 2023, which starts July 1, the Office of the Commonwealth’s Attorney will have nearly $9 million in expeditures, though actual county spending would be around $6.7 million since the office gets about $2.2 million in supplements from the state.

The advertised budget provides six new positions, including three attorneys, for a total of 84 full-time staffers, 54 of them prosecutors.

Butorac told FFXnow by email that her budget request is for approximately $825,000 in total and that her office currently gets about $525,000 from the county.

State funding also contributes to compensation. Virginia Indigent Defense Commission Executive Director David Johnson said the Fairfax County Public Defenders’ Office received $3.9 million in state funding during the past budget year.

“We can’t take shortcuts to justice, and to do that you have to invest,” Descano said in a statement when asked about the pay between offices. “I am grateful to the Board of Supervisors for its commitment to that investment in the Commonwealth’s Attorney Office as well as the Public Defender’s Office. I look forward to working further with the Board of Supervisors and county leaders to continue supporting the entire criminal justice system in Fairfax County.”

Descano’s office acknowledged the disparity in funding but also said the Board of Supervisors chairman’s office is in a better position to comment, since the board determines the budget.

Board of Supervisors Chairman Jeff McKay argued in a statement to FFXnow that Virginia needs to take more responsibility for funding court-related agencies, including the public defender’s office, whose staff are technically state employees.

Fairfax County provides nearly $96 million in personnel and salary supplements for staff in the court system, including attorneys, clerks, district court employees, and probation office employees, according to McKay, who said that level of funding is “unsustainable.”

“My colleagues and I on the Board have been in constant communication with the Public Defender, as well as the General Assembly, and we’ll continue to work alongside both moving forward to ensure funding for that office and the others mentioned above,” McKay said by email. “At a time like this, when the state has a gigantic, unprecedented budget surplus, it is way past time for it to pay its own bills.”

However, Elders suggested Fairfax County’s supplements for the public defender’s office have fallen behind other jurisdictions in Virginia. Experienced Fairfax County staff have left for Arlington and Prince William counties and Richmond, according to Elders.

“Our clients need all the help they can get,” he said. “We work nights. We work weekends. And we can’t keep up.”