FEDERAL DEATH PENALTY CASES: RECOMMENDATIONS
CONCERNING THE COST AND QUALITY
OF DEFENSE REPRESENTATION

TABLE OF CONTENTS




Executive Summary

Introduction

I. Analysis & Findings

A. Number and Overall Cost of Federal Death Penalty Cases

  1. The Decision to Prosecute in Federal Court
  2. The Decision to Authorize the Death Penalty
  3. The Decision to Go to Trial

B. Factors Affecting the Scope and Cost of Defense Representation

  1. Death Penalty Cases Involve Two Trials
  2. Complexity of the Guilt Phase
  3. Scope of the Penalty Phase
  4. Special Obligations of Counsel in a Death Penalty Case

    a. Consultation with the Client
    b. Motions Litigation
    c. Jury Selection


  5. Effect of Prosecution Resources
  6. Effect of the Authorization Process
  7. Importance of Experts and their Cost

C. Factors Affecting the Availability, Cost and Quality of Counsel

  1. Importance of "Learned" Counsel
  2. Federal Death Penalty Resource Counsel Project
  3. Consultation Prior to Appointment of Counsel
  4. Availability and Recruitment of Qualified Lawyers

    a. Federal Defender Organizations
    b. Panel Attorneys

  5. Adequacy of Compensation to Attract Qualified Counsel
  6. Number of Counsel

D. Efforts to Control the Cost of Representation

Conclusion

II. 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: Recommendations

Appendix B: Sources & Methodology

Appendix C: Supporting Data (Not Available Online)