NEW RESOURCES: Representation and Costs in Federal Death Penalty Cases

In June 2008, the Office of Defender Services of the Administrative Office of the U.S. Courts published a report analyzing the cost, quality and availability of defense representation in federal death penalty cases. The report determined that federal capital trials in which the death penalty was sought were substantially more expensive than non-death penalty federal trials; however, a death sentence was handed down in only one-quarter of the cases. In addition, defense expenditures in a federal death penalty case correlated strongly with whether a death sentence was ultimately handed down.

Congress increased the number of offences for which the death penalty could be sought from one to 50 in 1994, resulting in an immediate increase in the number of death-eligible federal defendants. While death-eligible defendants numbered 26 in 1993, that number increased to 63 in 1994 and to approximately 150 every year after that. Of the cases that went to trial seeking the death penalty, only 25% resulted in a death sentence (61 out of 233). Only 14% of the cases in which the Attorney General authorized seeking the death penalty actually resulted in a death sentence. Cases in which the Attorney General authorizes pursuit of the death penalty are significantly more expensive than non-death cases. The average cost of a trial in a federal death case is $620,932, about 8 times that of a federal murder case in which the death penalty is not sought.

The study found that those defendants whose representation was the least expensive, and thus who received the least amount of attorney and expert time, had an increased probability of receiving a death sentence. Defendants with less than $320,000 in terms of representation costs (the bottom 1/3 of federal capital trials) had a 44% chance of receiving a death sentence at trial. On the other hand, those defendants whose representation costs were higher than $320,000 (the remaining 2/3 of federal capital trials) had only a 19% chance of being sentenced to death. Thus, the study concluded that defendants with low representation costs were more than twice as likely to receive a death sentence. The complete report can be found here.

(Office of Defender Services of the Administrative Office of the U.S. Courts, “Update on Cost, Quality, and Availability of Defense Representation in Federal Death Penalty Cases,” June 2008; prepared by Jon Gould and Lisa Greenman). See also Studies, Costs, Representation and Federal Death Penalty.