These difficulties have led to the governor proposing the adding of money garnered from Virginia lawyers' dues to the general tax fund. Some also credit it as the cause of the attempt to redraw the lines for judicial circuits in Virginia. I don't know if the latter is true and rather hope that it is not because there are several circuits which could be improved if a common sense plan was put in place.
Personally, I think there is another option which the General Assembly might look into if it were seriously trying to cut funds in the trial courts: shifting non-violent felonies to the general district court. This could be done two ways. The first would be to pass a statute reducing certain felonies to aggravated misdemeanors. An example might be something like this:
19.2-5000 Aggravated MisdemeanorThe second possibility would be to simply try non-violent felonies in the lower courts, without converting them into any form of misdemeanor, and allowing them the same right of "de novo" appeal as misdemeanors enjoy. This is more constitutionally chancy. Colten v. Kentucky seems to give misdemeanors tried this way the federal supreme court's imprimatur. I've never heard of felonies dealt with in this manner. However, the de novo trial availability allows the defendant access to a court of record and jury. I can't think of a reason (other than "OMG, you can't do that with a felony") why it would be logically different.
(a) Prior to the commencement of a preliminary hearing in general district court or juvenile and domestic court, the prosecutor shall determine the sentencing range to be applied if the defendant is found guilty. This shall be announced to the court prior to the commencement of the hearing. If the mid-point of the potential sentence is less than 2 years the judge shall amend the case to an aggravated misdemeanor.
(b) An aggravated misdemeanor shall be tried in the same manner as a class 1 misdemeanor. Should the defendant be convicted the court shall sentence the defendant to 2 years in jail and suspend such time as will require the defendant to be initially incarcerated for a period within the range of the sentencing guidelines. If the sentencing guidelines recommend the defendant receive probation the judge is not required to suspend the entirety of the sentence, but shall not require the defendant to serve more than 3 months in jail.
(c) A defendant convicted of an aggravated misdemeanor has the same right of de novo appeal to the circuit court as a defendant convicted of a class 1 misdemeanor. In the circuit court sentencing guidelines (i) shall not be seen by the jury at any time, or (ii) the judge prior to rendering judgment and their use by the judge shall be entirely discretionary.
(d) Aggravated misdemeanors shall be scored as though a felony conviction on future sentencing guidelines reports.
(e) It shall be the duty of the Commonwealth Attorney in a jurisdiction to prosecute all felonies and aggravated misdemeanors.
The reason the General Assembly might want to do this so that it can have fewer circuit court judges. The general district court and juvenile and domestic court judges earned $16,000 less per year in 2008 (latest available figures).
If circuit courts are only handling violent felonies, a few non-violent felonies, civil cases, and appeals from the lower courts their caseloads should drop significantly. I'd hope for at least a 50% drop.2 On the other hand, when the cases in the lower courts increase in number it should still be less work than there was in circuit court. There'd be no preliminary hearing. There'd be no wasted time with all the niceties of circuit court. Perhaps there would be a need for a third more gdc judges. I don't really see that jdr courts would need more judges. The number of circuit court judges would drop to about 80 (decrease of about 75), saving the Commonwealth about $11,850,000. The number of general district court judges would increase to about 170 (increase of about 45), costing the Commonwealth about an extra $6,390,000. The total savings would be about $5,460,000.
I don't know what Virginia's annual budget is, but a $5 million saving is nothing to sneeze at in my book. In fact, I see this as a win all around. The General Assembly saves money. The lower court judges gain prestige from handling more significant cases. The circuit court gains prestige from being the place where only the truly serious cases are handled. LEO's and prosecutors are happy because they can take care of the minor thefts, frauds, vandalisms, etc. which are felonies more quickly than they can currently be dealt with. Some defendants also benefit by having most of their cases handled more quickly (mostly those who would get probation or weekend jail or home incarceration or work release - nobody who is going to spend 6 months in jail is going to want to hurry his case). Even defense attorneys should benefit from this. If they have one of those defendants who hasn't got a shot, the defense attorney can put on the big show in general district court where the punishment is limited in order to satisfy Unreasonable Defendant without exposing him to the greater dangers of either jury sentencing or a judge not bound by the guidelines.
1 Admission of potential bias: I practice in the 30th.