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Update on the Cost and Quality of Defense Representation

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Federal Death Penalty Cases

Update on the Cost and Quality of Defense Representation in Federal Death Penalty Cases

(September 2010)

This report updates the 1998 Spencer Report. It includes revised commentary, endorsed by the Judicial Conference Committee on Defender Services, to the 1998 recommendations approved by the Judicial Conference.



Title Page
Executive Summary
I. Introduction
II. Decisions by the Department of Justice to Seek the Death Penalty: Their Implications for Defense Costs
A. Defendants Subject to Capital Prosecution: Potential Death Penalty Cases, 1989-2009
B. The Attorney General’s Decision-Making and How It Has Changed
C. Resolution of Authorized Cases
D. Geographic Distribution of Authorized Cases
III. Costs of Defending Federal Capital Cases
A. Cases Examined
B. Data Examined
IV. Findings
A. Total Case Costs
B. Comparison to the Spencer Report
C. Attorney Costs
D. Expert Costs
E. Transcript Costs
V. Explanations for and Predictors of Case Costs
A. Hypotheses
B. Use of Experts
C. Case Characteristics
D. The Attorney General Making the Authorization Decision
E. Exceptional Cases
1. High Cost Trials
2. Lowest Cost Trials
a. “Bad Facts”
b. Defense Experience
c. Geography
VI. Qualitative Data from Judges and Counsel
A. Interviewees
B. Overview of Interviews
1. Judges
2. Defense Counsel
C. Federal Death Penalty Resource Counsel
D. The Role of Federal Defender Organizations
E. Quality of Representation: Trial Counsel
F. Case Budgeting
G. Expert Services
1. Guilt Phase Experts
2. Mental Health Experts
3. Mitigation Specialists
4. Jury Consultants
5. Victim Liaisons
6. Future Dangerousness and Prison Conditions Experts
7. Requests for Expert Services
8. $7,500 Threshold for Circuit Approval of Expert Payments
H. Case Management
1. Severance
2. Discovery
3. Jury Selection
I. The Capital Authorization Process
J. Appellate and Post-Conviction Representation
1. Quality and Availability of Appellate Counsel
2. Quality and Availability of Post-Conviction Counsel
VII. Conclusion
VIII. Recommendations & Commentary
1. Qualifications for Appointment
a. Quality of Counsel
b. Qualifications of Counsel
c. Special Considerations in the Appointment of Counsel on Appeal
d. Special Considerations in the Appointment of Counsel in Post-Conviction Proceedings
e. Hourly Rate of Compensation for Counsel
2. Consultation with Federal Defender Organizations or the Administrative Office
a. Notification of Statutory Obligation to Consult
b. Consultation by Courts in Selecting Counsel
c. Consultation by Federal Defender Organizations and the Administrative Office in Recommending Counsel
3. Appointment of More than Two Lawyers
4. Appointment of the Federal Defender Organization
a. FDO as Lead Counsel
b. FDO as Second Counsel
5. The Death Penalty Authorization Process
a. Streamlining the Authorization Process
b. Court Monitoring of the Authorization Process
6. Federal Death Penalty Resource Counsel
a. Information from Resource Counsel
b. Technology and Information Sharing
7. Experts
a. Salaried Positions for Penalty Phase Investigators
b. Negotiating Reduced Rates
c. Directory of Experts
8. Training
9. Case Budgeting
a. Consultation with Prosecution
b. Prior to Death Penalty Authorization
c. After Death Penalty Authorization
d. Advice from Administrative Office and Resource Counsel
e. Confidentiality of Case Budgets
f. Modification of Approved Budget
g. Payment of Interim Vouchers
h. Budgets in Excess of $250,000
i. Death Penalty Not Authorized
j. Judicial Conference Guidelines
k. Judicial Training for Death Penalty Cases
10. Case Management
a. Non-lawyer Staff
b. Multi-defendant Cases
i. Early Decision Regarding Severance
ii. Regularly Scheduled Status Hearings
iii. “Coordinating Counsel”
iv. Shared Resources
v. Voucher Review
11. Availability of Cost Data
Appendix A: Data Examined
Appendix B: Supplemental Data
Appendix C: Authorized versus Non-authorized Case Costs
Appendix D: Cost Estimates in 2010 Dollars

Figures and Tables

Figure 1: "Death Eligible" Federal Capital Defendants, 1989-2009, by Calendar Year of Indictment
Figure 2: U.S. Department of Justice Capital Authorizations, 1989-2009, by Year of Authorization
Figure 3: Number of Federal Capital Defendants Tried, 1989-2009, by Calendar Year
Figure 4: Number of Federal Death Sentences, 1989-2009, by Calendar Year
Table 1: Federal Death Penalty Prosecutions, 1989-2009
Figure 5: Number of Authorized Federal Capital Defendants, 1989-1997 and 1998-2009, by Circuit
Figure 6: Number of Federal Defendants Authorized for Capital Prosecution, by State, 1989-1997
Figure 7: Number of Federal Defendants Authorized for Capital Prosecution, by State, 1998-2009
Figure 8: Federal Death-Eligible Cases Studied, 1998-2004
Table 2: Total Cost for Defense Representation in Federal Capital Cases, 1998-2004
Figure 9: Cost Variance in Authorized Capital Cases, Trials vs. Pleas, 1998-2004
Table 3: Total Case Cost, Spencer Report Compared to Update
Table 4: Attorney Cost, 1998-2004
Table 5: Attorney Hours, Spencer Report Compared to Update
Table 6: Attorney In-Court Hours, Spencer Report Compared to Update
Table 7: Attorney Out-of-Court Hours, Spencer Report Compared to Update
Table 8: Expert Costs, Spencer Report Compared to Update
Table 9: Transcript Cost Per Defendant, 1998-2004
Figure 10: Division of Expert Costs for Trial Cases
Figure 11: Division of Expert Costs for Plea Cases
Table 10: Factors that Predict Increased Case Cost, Bivariate Relationships
Table 11: Effect of Attorney General's Decision-Making on Capital Case Length and on Plea vs. Trial
Table 12: Cost Drivers in High Cost Capital Trials
Table 13: Relationship Between Defense Cost and Death Sentence
Table 14: Attorneys in Low-Cost and Other Cases
Table 15: Regional Variation in Capital Trials by State, 1998-2004
Table 16: Outcomes of Federal Death Penalty Trials by Cost, 1998-2004
Figure B.1: Number of Federal Capital Defendants Going to Trial/Trials Commencing, by Calendar Year
Table B.1: Number of Federal Capital Defendants Going to Trial/Trials Commencing, by Calendar Year
Figure B.2: Current Population of Federal Death Row by State and Circuit
Figure B.3: Federal Death Sentences in the Modern Era by State and Circuit
Figure C.1: Median Costs for Defense Representation in Federal Capital Cases, 1998-2004
Figure D.1: Estimated Median Costs in 2010