Right to counsel

In Jenkins v. Director of Virginia Center for Behavioral Rehabilitation, 271 Va. 4 (2006), the Virginia Supreme Court found a federal and state constitutional right to counsel in cases involving post-incarceration civil detention pursuant to the Virginia Sexually Violent Predators Act. The court agreed with the non-binding plurality portion of Vitek v. Jones, 445 U.S. 480 (1980), which had said there should be appointed counsel in cases involving involuntary transfers of prisoners to mental health facilities owing to the strength of the liberty and stigma interests at stake. Jenkins quoted from Vitek, which had said:

A prisoner thought to be suffering from a mental disease or defect requiring involuntary treatment probably has a [great] need for legal assistance, for such a prisoner is more likely to be unable to understand or exercise his rights. In these circumstances, it is appropriate that counsel be provided to indigent prisoners whom the State seeks to treat as mentally ill.

The Jenkins court therefore concluded, “[i]n view of the substantial liberty interest at stake in an involuntary civil commitment based upon Virginia’s Sexually Violent Predators Act, the due process protections embodied in the federal and Virginia Constitutions mandate that the subject of the involuntary civil commitment process has the right to counsel at all significant stages of the judicial proceedings, including the appellate process.”  The court added that the right included effective assistance of counsel.