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Introduction

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This report responds to judicial and congressional concerns about the cost of providing representation in federal death penalty cases. Congress revived the death penalty for federal crimes in 1988, authorizing capital punishment for "drug kingpin" murders.(1) In 1994, Congress expanded to fifty the number of federal crimes punishable by death.(2) The portion of the Defender Services appropriation allocated to federal death penalty cases has increased over the past decade, especially since fiscal year (FY) 1995. Federal death penalty cases consumed almost six percent of the Defender Services obligations for payments to panel attorneys for fiscal year 1997, although they comprised approximately 0.3 percent of the caseload.(3)

In order to understand better the reasons for the high cost of representation in federal death penalty cases in comparison to non-capital cases, Judge Emmett Ripley Cox, the Chair of the Judicial Conference Committee on Defender Services, in May 1997 appointed a Subcommittee on Federal Death Penalty Cases to study the judiciary's current approach to the appointment and compensation of counsel in these cases, its success in recruiting qualified attorneys, and the quality and cost of services provided. Judge Cox named three members of the Committee on Defender Services to the Subcommittee: Judge James R. Spencer, of the Eastern District of Virginia, Chair of the Subcommittee; Judge Robin J. Cauthron, of the Western District of Oklahoma; and Judge Nancy G. Edmunds, of the Eastern District of Michigan. Norman Lefstein, Dean of the Indiana University School of Law at Indianapolis, was selected to serve as the Subcommittee's chief consultant.

The Subcommittee gathered both qualitative and quantitative information about federal death penalty cases. Dean Lefstein and his staff (4) conducted extensive interviews with lawyers and judges representing a wide range of perspectives, and covering more than half of the judicial districts in which a federal death penalty prosecution has been authorized. The Subcommittee's staff also reviewed articles and reports concerning representation in death penalty cases, including the recent Report on Costs and Recommendations for the Control of Costs of the Defender Services Program prepared by Coopers & Lybrand Consulting. Additionally, staff compiled a database containing cost information regarding federal death penalty cases from 1990, the year the first post-Furman federal death penalty case was authorized, to the end of fiscal year 1997. The Subcommittee's staff analyzed these data by correlating cost information with descriptive information (case demographics), and by comparing costs in federal death penalty cases with costs in non-capital homicide cases. The Subcommittee also obtained information concerning the time spent by attorneys in federal defender organizations (FDOs) on representation in federal death penalty cases and the costs incurred by local United States Attorney's Offices in prosecuting them. Because of the small number of federal death penalty cases that have been reviewed on direct appeal or in post-conviction proceedings, the quantitative analyses in this report focus on representation at the trial stage, and therefore do not reflect the overall cost of representation in a case in which a death sentence is imposed.(5)

The Subcommittee's findings are set out in Part I of this Report. The Subcommittee has proposed eleven recommendations to enhance the judicial administration of federal death penalty cases. These recommendations, supported by commentary, are set out in Part II. The recommendations alone are reproduced in Appendix A. The Subcommittee's methodology and the sources consulted are described in Appendix B. Additional statistical and other supporting data are contained in Appendix C.