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Executive Summary

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This report addresses the cost, availability and quality of defense representation in federal death penalty cases and recommends steps which should be taken in order to keep expenditures in these cases within reasonable limits. It has been prepared by the Subcommittee on Federal Death Penalty Cases of the Judicial Conference Committee on Defender Services. The report was prompted by judicial and congressional concerns about the costs involved in providing defense services in federal death penalty cases and is the product of extensive study and data collection.

Federal death penalty prosecutions are large-scale cases that are costly to defend. They require more lawyers, working more hours, at a higher hourly rate than other federal criminal matters. The number of federal death penalty prosecutions has grown dramatically in the last several years, and their impact on the defender services appropriation cannot responsibly be ignored. The judiciary has a duty to ensure that its funds are spent wisely, and to identify the best ways to provide cost-effective representation in these challenging cases.

To this end, the Subcommittee has thoroughly examined the nature of defense representation in federal death penalty cases. Part I of this report sets forth the Subcommittee's analysis and findings, which are based upon qualitative and quantitative information gathered from many sources. This part of the report describes the number of federal death penalty cases and the cost of defending them, and discusses the characteristics of federal death penalty cases and the special duties they impose on defense counsel. This information is essential to a full understanding of the recommendations set forth in Part II of the report. Also contained in Part I are data on the expense of prosecuting federal death penalty cases, which have been provided by the Department of Justice.

In general, the Subcommittee on Federal Death Penalty Cases has concluded that judges assigned to federal death penalty cases have been appropriately conscious of the need to monitor defense costs and that, for the most part, their efforts to control expenses have been successful. In the vast majority of cases, moreover, judges have been able to appoint well-qualified lawyers with sufficient experience in death penalty litigation to make cost-effective decisions about the resources required to present a defense. Overall, the average cost of representation in each major category of federal death penalty cases is reasonable in relation to the obligations imposed on defense counsel and the costs of prosecuting such cases. Nevertheless, the Subcommittee believes the additional cost-containment measures proposed in its recommendations should be implemented.

Among the most important findings presented in Part I of the report are the following:

1. The number of federal prosecutions in which an offense punishable by death is charged, and to which special statutory requirements for the appointment and compensation of counsel apply, increased sharply after the 1994 Federal Death Penalty Act increased the number of federal crimes punishable by death.

  • Number of defendants charged with offenses punishable by death (by year of indictment):
    1991 -- 12
    1992 -- 45
    1993 -- 28
    1994 -- 45
    1995 -- 118
    1996 -- 159
    1997 -- 153

2. The cost of defending cases in which the Attorney General decides to seek the death penalty for commission of an offense potentially punishable by death (authorized cases) is much higher than the cost of defending cases in which the Attorney General declines to authorize the death penalty for an offense punishable by death. The number of authorized cases has increased since 1994.

  • Number of cases where the Attorney General has authorized seeking the death penalty, by year in which the authorization decision was made (figures provided by the Department of Justice):
    1990 -- 2
    1991 -- 6
    1992 -- 16
    1993 -- 5
    1994 -- 7
    1995 -- 17
    1996 -- 20
    1997 -- 31
  • Average total cost per representation of a sample of cases in which the defendant was charged with an offense punishable by death and the Attorney General did not authorize seeking the death penalty (1990-1997): $55,772
  • Average total cost per representation of a sample of cases in which the defendant was charged with an offense punishable by death and the Attorney General authorized seeking the death penalty (includes cases resolved by guilty plea as well as cases resolved by trial) (1990-1997): $218,112

3. The cost of defending a federal death penalty case that is resolved by means of a trial is higher than the cost of defending a case that is resolved through a guilty plea, even though many guilty pleas are entered after most of the preparation for trial has been completed. The number of federal death penalty trials, and the number of individual defendants tried on capital charges, has increased since the federal death penalty was revived by Congress in 1988.

  • Number of federal death penalty trials/defendants, by calendar year:
    1988 -- 0
    1989 -- 0
    1990 -- 1 trial, 1 defendant
    1991 -- 4 trials, 5 defendants
    1992 -- 1 trial, 1 defendant
    1993 -- 3 trials, 7 defendants
    1994 -- 1 trial, 3 defendants
    1995 -- 4 trials, 7 defendants
    1996 -- 5 trials, 7 defendants
    1997 -- 8 trials, 11 defendants
  • Average total cost per representation of a sample of authorized federal death penalty cases resolved through a guilty plea (1990-1997): $192,333
  • Average total cost per representation of a sample of authorized federal death penalty cases resolved through a trial (1990-1997): $269,139

4. The costs of defending federal death penalty cases appear to be reasonable in relation to the costs of prosecuting such cases. The Department of Justice collected data regarding its prosecution costs in a sample of authorized cases, including some that went to trial and some that ended in guilty pleas. These cost data did not include non-attorney investigative costs or the value of services provided to the prosecution by law enforcement agencies.

  • Average total cost of prosecuting an authorized federal death penalty case (based on a sample of cases resolved by guilty plea and by trial selected by the Department of Justice; does not include any non-attorney investigative costs or the costs of expert and other assistance provided by law enforcement agencies; figures provided by the Department of Justice): $365,000

5. The overall cost of providing representation in federal death penalty cases is due to the growing number of such prosecutions (in particular the growing number of trials), the special duties of counsel in federal death penalty cases, and the higher hourly rate paid to counsel. The number of cases depends upon prosecutorial decisions, over which the judiciary has no control. The special obligations of counsel are due to a combination of those responsibilities inherent in any capital case and the unusual complexity of many federal death penalty prosecutions, particularly drug conspiracy cases. The higher maximum rate for counsel in federal death penalty cases is actually lower than the market rates charged by the lawyers appointed in federal death penalty cases, and is required in order to assure an adequate supply of qualified lawyers. Generally, courts have succeeded in appointing counsel with the experience and judgment needed to make prudent use of resources in defending federal death penalty cases. Federal defender organizations are not at this time ready to assume a major portion of the responsibility for representation in federal death penalty cases, so that courts must continue to appoint panel attorneys and must offer an adequate rate of compensation.

In Part II of this report, the Subcommittee recommends additional steps designed to contain and reduce the cost of capital defense representation. In the death penalty area in particular, cost-effectiveness is inseparable from high quality representation: assuring appropriate resources for the defense at the trial stage minimizes the risk of time-consuming and expensive post-conviction litigation later on. Therefore, in addition to recommendations designed to monitor and limit expenditures, the Subcommittee has proposed a number of measures intended to assure the appointment of well-qualified counsel and to make other improvements in the delivery of defense services. The most significant of the Subcommittee's recommendations can be summarized as follows:

  • Courts should assure the appointment of highly qualified counsel whenever the defendant is charged with an offense punishable by death. The hourly rate authorized for compensation of counsel in federal death penalty cases should remain high enough to attract a sufficient number of qualified attorneys. Recommendation 1.
  • Courts should consult with the local federal public defender, or, in districts not served by a federal public defender, with the Administrative Office of the U.S. Courts to identify counsel. In districts served by a community defender organization, courts should consult with the community defender organization. Recommendation 2.
  • Courts should not appoint more than two lawyers to represent a defendant in a federal death penalty case except in exceptional circumstances; however, courts should authorize appointed counsel to utilize the services of other lawyers to assist them on a more limited basis when this would contain costs or when additional staff might be required to meet time limits. Recommendation 3.
  • Courts should appoint federal defender organizations as lead or second counsel in federal death penalty cases only if the federal defender organization has staff with the appropriate qualifications and experience and other resources sufficient to undertake the representation without unduly disrupting the operation of the office. Recommendation 4.
  • The Department of Justice should streamline the review of federal death penalty cases so that cases in which a request for the death penalty is very unlikely will be reviewed more quickly. An earlier decision not to seek the death penalty will reduce the length of time the case must be treated as a federal death penalty case where the defendant is entitled to two lawyers who may be paid at a higher hourly rate. Expediting review of cases in which a request for the death penalty is unlikely, such as cases in which the local United States Attorney strongly recommends against seeking the death penalty, will significantly reduce defense costs without diminishing the usefulness of centralized review. Recommendation 5.
  • The Administrative Office of the U.S. Courts should continue to support the Federal Death Penalty Resource Counsel Project, which has become essential to the delivery of high quality, cost-effective defense representation, and it should consider expanding the availability of model pleadings and other information needed by counsel in federal death penalty cases through the use of technology. Recommendation 6.
  • Federal defender organizations should consider creating salaried positions for penalty phase investigators who would coordinate preparation for the penalty phase in federal death penalty cases at a lower cost than a mitigation specialist retained as an expert at an hourly rate. Lawyers should be encouraged to negotiate reduced rates with experts. Also, information about qualified experts in fields often involved in federal death penalty cases and about the rates they charge should be made available to counsel. Recommendation 7.
  • The Administrative Office of the U.S. Courts should continue to support training for counsel in federal death penalty cases. Recommendation 8.
  • Courts should require lawyers to develop case budgets to ensure the most effective and economical use of resources. Case budgeting should be done both before the prosecution makes a decision whether it will seek the death penalty and after, if the death penalty is authorized. Case budgets should be reviewed if circumstances change. The Judicial Conference should develop guidelines for case budgeting, and judges and lawyers should be trained in the budgeting process. Recommendation 9.
  • In multi-defendant federal death penalty cases, courts should consider making early decisions about whether to sever non-capital defendants from defendants facing capital charges. Courts should also consider using case management techniques to diminish the cost of document production and distribution and to reduce duplication of effort among defense counsel. Recommendation 10.
  • The Judiciary should improve its capacity to track costs in federal death penalty cases. Recommendation 11.