With recent U.S. Supreme Court deci­sions under­scor­ing the impor­tance of defense coun­sel per­for­mance dur­ing cap­i­tal tri­als, judges across the nation are strug­gling to bal­ance the high costs of cap­i­tal cas­es with the need for ade­quate rep­re­sen­ta­tion. In Georgia, Judge Hilton M. Fuller Jr. has delayed the tri­al of Brian Nichols because the state pub­lic defend­er sys­tem has no mon­ey to pay for his attor­neys and oth­er expens­es asso­ci­at­ed with his defense. Fuller said that it is point­less to pro­ceed with the case because it is uncon­sti­tu­tion­al not to pay the defense. So far the case has cost Georgia $1.2 mil­lion. The state could have avoid­ed the mul­ti-mil­lion dol­lar tri­al by drop­ping the death penal­ty option and accept­ing Nichols’ offer to plead guilty in exchange for a sen­tence of life with­out parole, but pros­e­cu­tors have refused to con­sid­er that option.

Fuller is not alone in address­ing the high costs of cap­i­tal pun­ish­ment. In October 2007, the New Mexico Supreme Court sus­pend­ed the pros­e­cu­tion of two prison inmates accused of killing a guard because their lawyers’ pay was so low it was unlike­ly they could be effec­tive. In Utah, a judge has asked if he can force a lawyer to rep­re­sent a death row inmate on appeal because, at fees amount­ing to less than $10 an hour, no one wants the job. In California, a fed­er­al judge com­plained in May that death row inmates were wait­ing more than 3 years to get an attor­ney because the state would not raise the hourly rate. In New Jersey, a 2005 study revealed that the state had spent $256 mil­lion on the death penal­ty since 1983 and had not exe­cut­ed a sin­gle inmate. Arizona, Texas, and Louisiana are also fac­ing sim­i­lar trou­bles.

“(T)he right to coun­sel is as fun­da­men­tal as it gets — every oth­er right depends on it,” observed Stephen B. Bright, a cap­i­tal defense attor­ney and pres­i­dent of the Southern Center for Human Rights in Atlanta.

Though many states are still strug­gling to address the costs asso­ci­at­ed with expen­sive death penal­ty cas­es, some juris­dic­tions have estab­lished pro­grams that have suc­cess­ful­ly reduced spend­ing. For exam­ple, North Carolina has estab­lished what many believe to be a mod­el cap­i­tal defense sys­tem that comes clos­er to ensur­ing that the death penal­ty is reserved for the worst of the worst offend­ers. Since the pro­gram opened in 2001, the state has gone from an aver­age of 24 cap­i­tal con­vic­tions a year to 5 while reduc­ing the rever­sal rate.

(New York Times, November 4, 2007). See Costs.

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