Virginia Beach public defenders earn far less than prosecutors. Both sides want that to change.

Virginia Beach — Public defenders work long hours, manage heavy caseloads and earn far less than the prosecutors.

The pay disparity between the two is so stark it leads to high turnover rates and inexperienced attorneys representing poor criminal defendants, said Virginia Beach’s Public Defender Cal Bain.

In the wake of discussions about criminal justice reform this year, Bain decided to ask the city council to consider providing up to $850,000 in its next budget to make the offices equal.

Public defenders, who represent the majority of criminal defendants in Virginia Beach, earn a starting salary of $53,000, Bain said, which is about $20,000 less than the lowest paid attorney in the Commonwealth’s Attorney’s Office.

The disparity grows even more as attorneys advance up the ranks. Top city prosecutors make at least $50,000 more than their public defender counterparts, Bain said.

“It is a mind-blowing difference,” Bain said. “There’s a basic belief that out of a fair fight comes the truth. If one side is better equipped than the other, it is not quite the fair fight it should be.”

The state is responsible for funding both offices and provided almost $2.9 million to the Commonwealth’s Attorney’s Office and $2.1 million to the Virginia Beach Public Defender’s Office during the current fiscal year, according to both offices.

For more than 30 years, the city has provided extra financial support to the Commonwealth’s Attorney’s Office to ensure that Virginia Beach is a safe community, said Macie Allen, a spokesperson for the commonwealth’s attorney. In 2020, the prosecutor’s office received $6.4 million. Bain’s office has never received any from the city.

Allen said comparing the budgets isn’t apples to apples because 50% of the work of the commonwealth’s attorney is done before a defendant is charged, and the office has other duties that the Public Defender’s Office doesn’t — such as community outreach and providing legal training and advice to local officials, law enforcement, and other public safety agencies. On top of that, the office handles public records responses, expungements, extraditions, mental health appeals and asset forfeiture.

Even so, Commonwealth’s Attorney Colin Stolle urged the council during a Dec. 8 meeting to approve the public defender’s request. Stolle said he decided to speak out because he has an equal ethical obligation to a victim and a defendant to seek justice. Stolle said having well-trained and experienced public defenders would make his job easier, too. He said the state should be funding both his office and the Public Defender’s Office at a higher rate, but it won’t.

“This is a very serious need,” Stolle told the council. “These are your constituents that the public defenders represent.”

The lowest-ranking public defenders are often recent law school graduates who need training for the first couple of years. Bain said he sees staff leave after they have been trained because they can earn much more working in private practice or as prosecutors. Three of the last four attorneys who departed went to go work for commonwealth’s attorney’s offices, he said.

“This salary disparity makes it difficult for us to retain employees,” he said.

Bassel Khalaf and Taite Westendorf worked at the Public Defender’s Office until 2017. Both decided they needed to earn more money to support a family so they started a criminal defense private practice together.

“My counterparts in the Commonwealth’s Attorney’s Office made more than 80% of the salary that I made,” Westendorf said, who worked for the Public Defender’s Office for 11 years. “As much as I respect the mission of the public defender’s office, as important as I believe that work is, it is very difficult to continue down that financial path.”

Today's Top Stories

Daily

Start your morning in-the-know with the day's top stories.

Khalaf agreed, and said $120,000 in student loan debt factored into his decision to leave. Now, he says he makes more money and works less.

In the wake of George Floyd’s death last May in Minneapolis, Khalaf said delivering pay parity is one of the easiest things the city can do to show residents it believes in providing equal representation and a fair criminal justice system.

“Nobody can deny that the city values the prosecutor’s office more than the Public Defender’s Office when you look at the sheer figures,” he said. “There’s an idea that the cards aren’t stacked, but that’s exactly what is happening.”

Though they no longer work for the Public Defender’s Office, the two attorneys have been advocating for pay raises for their former colleagues.

Councilman Michael Berlucchi said Khalaf and Westendorf brought the issue to him and he supports it because equal representation is a Constitutional responsibility. He said he thinks there’s a strong likelihood some funding for the public defender’s office will be included in the next city budget.

“The scales of justice are out of balance,” Berlucchi said. “I am not sure we will achieve full parity in one year, but we can start working on building parity.”

Alissa Skelton, 757-995-9043, alissa.skelton@pilotonline.com.