Defending a Federal Death Penalty Case - Cost and Quality

In 1998, the Subcommittee on Federal Death Cases, part of the Judicial Conference Committee on Defender Services, issued the Spencer Report, the result of a study about the costs of providing defense servics in federal capital crime cases. Based on its findings, the Subcommittee made recommendations designed to contain costs while ensuring high quality defense services. These reommendations were adopted by the Judicial Conference in September 1998.

Recently, the issues addressed in the Spencer Report have been revisited and an updated report has been published. Here are a few highlights of trends from 1989 (the year the report sets as the beginning of the modern death penalty era) through the end of 2009, taken from the Executive Summary.

• The 1994 Federal Death Penalty Act [18 U.S.C. 3591-3598] dramatically increased the number of crimes eligible for capital prosecution. The impact of that act has increased since 1998.
• The decision to seek the death penalty for a defendant charged in a capital offense (i.e., the "authorization" for capital prosecution for a death-eligible defendant) has become more centralized to the Department of Justice rather than being left to the discretion of the local prosecutor.
• More authorized cases have gone to trial rather than being settled by a plea agreement.
• Since 1989, the Attorney General has sought the death penalty against 463 defendants, 262 of whom have stood trial. Of those, 66 have been sentenced to death.

Also from the Executive Summary, here are some of the findings about the costs of death penalty cases:

• The median cost of a case in which the death penalty was authorized was eight times as much as those in which the death penalty was not authorized.
• The median cost of cases in which the death penalty was authorized and that proceeded to trial was more than twice the median cost of authorized cases settled by plea agreement.
• The costs of defending death penalty cases has risen substantially since 1998.