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Cost of Defending Federal Death Penalty Cases on the Rise

The cost of defending federal death penalty cases has increased sharply since 1998, according to a preliminary report by the Judicial Conference Committee on Defender Services.

Congress first revived the federal death penalty in 1988, authorizing capital punishment for so-called “drug kingpin” murders. In 1994, Congress expanded the scope of the federal death penalty with the passage of the Federal Death Penalty Act, making some fifty crimes punishable by death.

The decision to seek death in a particular case has always rested with the Attorney General. However, prior to 1995, individual U.S. Attorneys retained the discretion to not seek the death penalty in death-eligible cases. That changed with the adoption of a uniform policy regarding the handling of death-eligible cases by the then Attorney General, Janet Reno.

Under Attorney General Reno, all death-eligible cases were required to be reviewed by the Attorney General, regardless of whether the U.S. Attorney believed death was an appropriate punishment. From time to time, this resulted in the certification of cases that local prosecutors did not believe warranted the ultimate penalty. Certification, however, could be ameliorated by local prosecutors through plea bargaining to a non-death sentence.

That discretion was eliminated in 2001 with the arrival of Attorney General John Ashcroft. Attorney General Ashcroft imposed policies showing less deference to local prosecutors. He approved more capital prosecutions that were unsupported by local U.S. Attorneys, and he required formal approval from Washington before settlement of a certified case by plea agreement.

Naturally, with the expansion of the federal death penalty, capital prosecutions have increased, as have the costs associated with defending them.

Since 1998, for instance, the mean cost of capital trials has more than doubled from $269,139 to $620,932. While attorney fees have remained the same, $125 per hour per the Criminal Justice Act, other costs have increased. Expert costs in some cases have reached as high as $101,592, while transcript costs have topped $16,000 in capital trials.

Many of these costs according to the report are due to the Supreme Court’s decision in Wiggins v. Smith, 539 U.S. 510 (2003), which requires counsel to conduct a full social history investigation of a capital defendant.

The largest cost increases, however, stem from the Justice Department’s decision to bring death penalty cases in areas with little or no history with the death penalty. Federal capital prosecutions have been authorized in non-death penalty states such as Iowa, Michigan, West Virginia, Vermont and Massachusetts, for instance. The cost of death penalty prosecutions in such states tend to be higher due to the amount of time invested by counsel to become familiar with death penalty issues.

The cost of death penalty representation has even been correlated with whether a defendant is ultimately sentenced to death. According to the report, in cases where the cost of representation was less than $320,000, defendants had a 50 percent chance of being sentenced to death. When costs exceeded $320,000, the chance was 35 percent. Thus, the adage “you get what you pay for” remains true even in death penalty cases.

Source: Judicial Conference Committee on Defender Services.

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