The Subcommittee's conclusions are based on a combination of qualitative judgments about representation in federal capital cases obtained from interviews, pleadings, and training materials, and quantitative data concerning the number, characteristics, and cost of representation in federal death penalty cases.

QUALITATIVE AND BACKGROUND SOURCES

Standard of Practice in Death Penalty Cases. In order to fully understand the unique standards of practice applicable to death penalty cases in general, and to federal death penalty cases in particular, the Subcommittee reviewed works by judges, scholars, and lawyers concerning the duties of counsel in a capital case. Sources included works focusing on federal habeas corpus for state prisoners under sentence of death such as the Report of the Judicial Conference Ad Hoc Committee on Federal Habeas Corpus in Capital Cases (Powell Committee report) (1989), the Report on Death Penalty Representation of the Committee on Defender Services Subcommittee on Death Penalty Representation (1995), and Ira P. Robbins, Towards a More Just and Effective System of Review in State Death Penalty Cases, 40 Am. U. L. Rev. 1 (1990), as well as materials related to the funding and quality of representation provided in state death penalty cases, such as: Louis D. Bilionis and Richard D. Rosen, Lawyers, Arbitrariness and the Eighth Amendment, 75 Tex. L. Rev. 1301 (1997); Michael D. Moore, Analysis of State Indigent Defense Systems and their Application to Death-Eligible Defendants, 37 Wm. & Mary L. Rev. 1617 (1996); Norman Lefstein, Reform of Defense Representation in Capital Cases: the Indiana Experience and its Implications for the Nation, 29 Ind. L. Rev. 495 (1996); Douglas W. Vick, Poorhouse Justice: Underfunded Indigent Defense Services and Arbitrary Death Sentences, 43 Buff. L. Rev. 329 (1995); Ruth E. Friedman & Bryan A. Stevenson, Solving Alabama's Capital Defense Problems: It's a Dollars and Sense Thing, 44 Ala. L. Rev. 1 (1992); Anthony Paduano & Clive Stafford-Smith, The Unconscionability of Sub-Minimum Wages Paid Appointed Counsel in Capital Cases, 43 Rutgers L. Rev. 281 (1991); Albert L. Vreeland, II, The Breath of the Unfee'd Lawyer: Statutory Fee Limitations and Ineffective Assistance of Counsel in Capital Litigation, 90 Mich. L. Rev. 626 (1991).

Appointment of Counsel Standards. The Subcommittee also examined standards for the appointment and compensation of counsel in death penalty cases, including the American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (1989).

Nature of Federal Death Penalty Cases. To better grasp the characteristics of federal death penalty practice, the Subcommittee reviewed training materials for defense lawyers prepared by the Federal Death Penalty Resource Counsel Project and materials collected and distributed by the Federal Judicial Center (FJC) to assist judges assigned to preside over federal death penalty cases. The Subcommittee met with the three lawyers hired as Resource Counsel, and with the FJC staff assigned to develop a handbook on federal death penalty cases. The Subcommittee also reviewed an FJC newsletter entitled "Chambers to Chambers," several issues of which were devoted to the management of federal death penalty cases.

Analyses of Costs of Representation. In order to focus the Subcommittee's inquiry and to refine the collection of empirical data, the Subcommittee surveyed a number of sources dealing with the costs of representation in general and the costs of representation in death penalty cases in particular. General analyses of defense costs included the Report of the Judicial Conference of the United States on the Federal Defender Program (1993) and the Economy Subcommittee of the Budget Committee of the Judicial Conference, Panel Attorney Total Hours Profiles (1996), and General Accounting Office, Cost of Providing Court-Appointed Attorneys is Rising, but Costs are Unclear (1995). The Subcommittee also reviewed sources dealing directly with death penalty cases, including: General Accounting Office, Limited Data Available on Costs of Death Sentences (1989); Philip J. Cook & Donna B. Slawson, The Costs of Processing Murder Cases in North Carolina (1993); and The Spangenberg Group, A Study of Representation in Capital Cases in Texas (1993). In addition, the Subcommittee reviewed the Report on Costs and Recommendations for the Control of Costs of the Defender Services Program prepared by Coopers & Lybrand Consulting for submission to Congress in February 1998.

Economic Factors Related to Availability of Counsel. In order to assess the market forces at work, the Subcommittee obtained information concerning the rates paid to lawyers for work of a complexity similar to federal death penalty cases, including General Accounting Office, Information on the Federal Government's Use of Private Attorneys (1992) and Altman, Weil, Pensa, The 1997 Survey of Law Firm Economics. For a theoretical perspective on the market for legal services, the Subcommittee examined works such as: Pauline Holden & Steven Balkin, Quality and Cost Comparisons of Private Bar Indigent Defense Systems: Contract Versus Ordered Assigned Counsel, 76 J. L. & Criminology 176 (1985) and Herbert M. Kritzer, et al, The Impact of Fee Arrangements on Lawyers' Effort, 19 L. & Soc. Rev. 251 (1985).

Interviews. The Subcommittee's primary sources of qualitative information consisted of lengthy, in-depth interviews with lawyers and judges who had participated in federal death penalty cases. The interviews were conducted by Subcommittee staff, who prepared detailed summaries promptly after completion of the interviews. The identity of the individuals interviewed was not revealed even to the judges of the Subcommittee.

Judges. The Subcommittee conducted detailed interviews of a total of thirteen federal district judges. The Subcommittee also made use of information related to the management of federal death penalty cases provided at a "focus group" meeting on capital habeas corpus cases in March 1997. In order to encourage candor, the individuals interviewed were promised that their identities would remain confidential, and that remarks would not be attributed to them in the final report. Although follow-up questions varied, the Subcommittee used a standardized structured protocol to guide each interview. The Subcommittee took care to assure that the interviews captured a variety of judicial perspectives. The Subcommittee spoke to judges from all across the country, including one from each federal circuit. Those interviewed included judges who had presided over cases that ended with lengthy capital trials, cases that ended in negotiated guilty pleas, and cases in which the Department of Justice declined to seek the death penalty. The judges included recent appointees to the bench, as well as more experienced judges. Some of the judges came from districts in states with long histories of post-Furman death penalty litigation, while others came from districts in states without the death penalty.

Department of Justice. The Subcommittee contacted the Department of Justice to obtain permission to interview prosecutors in federal death penalty cases. Although the Department agreed to provide certain quantitative information, further described below, it declined to authorize the Subcommittee to interview prosecutors or to collect data from prosecutors by a questionnaire.

Defense Counsel. The Subcommittee interviewed a total of 21 defense lawyers. In all, these lawyers had participated in 45 federal death penalty cases. As with the judges, interviews were conducted using a standardized interview protocol, and those interviewed were promised that their names would not be directly or indirectly disclosed. The interview subjects included lawyers with extensive death penalty experience, who had participated in several federal death penalty cases, as well as lawyers who until their first federal death penalty appointment had had no prior death penalty experience. The Subcommittee interviewed panel attorneys as well as staff attorneys in federal defender organizations. The Subcommittee also met with a group of federal defenders during a national conference. The lawyers interviewed had participated in a wide range of types of federal death penalty cases. Some of the cases had proceeded through penalty phase trials, while others had been resolved by a plea of guilty. The cases included some in which the Department of Justice did not authorize seeking a death sentence and some in which authorization to seek the death penalty was granted and later withdrawn.

QUANTITATIVE DATA AND ANALYSIS.

The costs of providing representation in federal death penalty cases include direct payments to individual lawyers appointed by the court (panel attorneys) and to persons providing services other than counsel at the request of a panel attorney, and resources committed to representation in federal death penalty cases by federal public defender and community defender organizations. The Subcommittee attempted to obtain and analyze data from both sources.

CJA Payment Data. Payments to panel attorneys must be certified by counsel to be reasonable and necessary, and must be approved by the presiding judicial officer. Additionally, in cases filed after April 24, 1996, payments for services other than counsel exceeding $7500 must also be approved by the chief judge of the circuit court of appeals or the chief judge's designee. Payments are supported by vouchers submitted by the panel attorney (CJA 30) or the non-attorney service provider (CJA 31). Some, but not all of the information recorded on the voucher forms is entered into a computer by the district court clerk and then transmitted to the Administrative Office. The Administrative Office maintains computerized data concerning the nature of the service provided, the hours billed (for attorneys this is divided between in and out of court time), the hourly rate, and, for cases after FY 1994, the type of work the attorney performed, broken down into 8 subcategories.

In order to assess the relationship between the raw cost data and the characteristics of federal death penalty cases developed from the interviews and review of documents, the Subcommittee created tables of information concerning the histories of federal death penalty cases. This "case demographics" data came from information developed by the Federal Death Penalty Resource Counsel Project and from the Department of Justice. By relating case demographics to cost information, the Subcommittee hoped to produce a clearer understanding of how the nature of the representation influenced costs. For example, the Subcommittee compared costs in cases in which the Department of Justice authorized a request for the death penalty with cases in which authorization was denied. The Subcommittee also examined the costs of authorized cases terminating in guilty pleas and those resolved at trial.

In addition, for purposes of comparison, the Subcommittee obtained voucher information related to non-capital homicide cases. The Subcommittee compared average expenditures on various items in an effort to better understand how the requirements of representation in death penalty cases influenced costs.

The quantitative data sources utilized by the Subcommittee have certain limitations. As the Economy Subcommittee of the Budget Committee of the Judicial Conference noted in a caveat to its 1996 report on panel attorney hours, the CJA payment system was designed only to process vouchers for payment, and not to serve as a management information system. Thus, this database does not include basic information on the disposition of a case, as a result of which cases that went to trial cannot be distinguished from those resolved by a guilty plea, despite the obvious relevance such differences would have in identifying the "typical" costs of representation. Similarly, the CJA payment system does not reflect factors such as the number of offenses charged or the number of codefendants joined in a case, although both may make a case more complicated and more costly. Also, the CJA payment system does not have an adequate mechanism to regularize the entry of names and other identifying information. As a result, small variations in the spelling of a defendant's name, for example, will lead the computer to treat the vouchers as if they relate to different cases. Average costs per representation computed without correcting this problem will be inaccurate because the case count will be artificially inflated. This creates a particularly serious problem in capital cases, because attorneys typically submit interim vouchers, rather than waiting until a case is entirely over to request payment. Because there are more vouchers submitted per case, there are likely to be more inconsistencies or variations in the way names (and even case numbers) are entered, and therefore more errors in the count.

Moreover, although the CJA 30 form was revised in 1994 to collect additional details about the type of work an attorney performed during the time period covered by the voucher, the forms are not designed to address some of the questions about the costs of representation the Subcommittee wished to answer. It is not possible, for example, to reliably isolate costs associated with the Department of Justice death penalty authorization process from other costs. Nor, unfortunately, do the categories for "services other than counsel" on the CJA 31 form correlate precisely to the service categories of greatest importance in a study of federal capital cases (there is no category, for example, for mitigation specialists; payments to such experts therefore are included within the category of "other"). Finally, the Subcommittee learned that the CJA payment system does not reliably track federal death penalty cases. Although in theory vouchers for each defendant charged in an indictment with an offense that carries a potential punishment of death should be coded "D2" (for a federal death penalty case), in fact some vouchers in death penalty cases are not coded properly. The Subcommittee could not, therefore, identify the universe of federal death penalty cases by selecting "D2" vouchers."

The Subcommittee attempted to address the deficiencies in the CJA payment data in several ways. In order to obtain a sample of federal death penalty cases which included both unauthorized as well as authorized cases, the Subcommittee obtained a case list from the Federal Death Penalty Resource Counsel Project, which tracks federal death penalty cases across the country.⁽¹⁾ This list included all cases in which the Department of Justice authorized a death penalty prosecution, as well as a number of cases in which the Department of Justice declined to authorize seeking the death penalty. Only cases in which CJA payment information had been placed under seal were excluded from this list. The Subcommittee then obtained all CJA payments relating to this list of cases. Administrative Office staff reviewed the payment information data, making revisions as needed to produce consistent name and case number fields, to assure an accurate count of representations for purposes of averaging. The resulting data were imported into a database. A small number of cases which were unrepresentative for various reasons were removed from the sample. For example, vouchers billed for appellate or post-conviction representation were eliminated, because these could not validly be compared to costs at the initial trial stage.⁽²⁾ Also eliminated were cases in which the costs of representation were primarily borne by a federal defender organization, because in such cases the vouchers submitted by the panel attorney or other service providers would not have reflected the actual cost of representation, but rather would have understated it.

The Subcommittee also reviewed case disposition information from the Administrative Office SARD database, but found too many reliability problems to make these data useful.

Federal Defender Hours. Except for a very small number of cases in which representation was provided by retained counsel (the Subcommittee is aware of only one federal death penalty case handled entirely by a retained lawyer; in a small number of other cases a retained lawyer provided limited services), in cases not assigned to panel attorneys representation is provided by Federal Defender Organizations (FDOs), which may be either Federal Public Defender Organizations (FPDs) or Community Defender Organizations (CDOs). Attorneys in FDOs are salaried employees and do not submit bills by the hour, however they do keep a rough account of their hours using a system called "Timekeeper." The Subcommittee obtained records from the Timekeeper system for cases coded as federal death penalty cases, however the number of FDO cases identified in the Timekeeper database was so small, and the reliability of the hours so uncertain, that the Subcommittee limited itself to the analyses of federal defender hours previously performed by Coopers & Lybrand. Coopers & Lybrand also developed a methodology for estimating the imputed hourly costs of FDO attorneys, paralegals and investigators.

Department of Justice Data. The Department of Justice provided the Subcommittee with a list of federal death penalty cases by status as of December 12, 1997. The Department also gathered cost information from local U.S. Attorney's Offices concerning 24 completed federal death penalty prosecutions in which the Attorney General had authorized seeking the death penalty. The 24 cases included cases resolved by guilty plea as well as trial. Each case may involve one or more defendants, however the Department did not provide information concerning the number of defendants, case disposition, or the statutory basis for the prosecution.

Footnotes

1. The Subcommittee subsequently obtained a longer list of cases from the Department of Justice. This list included 107 authorized cases, and 162 cases reviewed by the Attorney General but never authorized. Even this list was not complete for the entire period, because it contained only cases reviewed, but not authorized after January 1995.

2. There were too few vouchers associated with appellate or post-conviction representation to allow meaningful analyses of these costs separately from trial.