The Death Penalty Subcommittee of the Committee on Public Defense of the Washington State Bar has pre­pared a report on the state’s death penal­ty that will be sub­mit­ted to the Bar Association’s Board of Governors in ear­ly 2007. The Subcommittee was formed to exam­ine the costs of the state’s death penal­ty and to rec­om­mend whether the death penal­ty should be con­tin­ued, giv­en the expens­es and the state’s expe­ri­ence in car­ry­ing out death sen­tences. The Death Penalty Subcommittee was made up of sup­port­ers and oppo­nents of the death penal­ty, all with exten­sive expe­ri­ence with the crim­i­nal jus­tice sys­tem.

The report not­ed that since the death penal­ty was rein­stat­ed in Washington in 1981, there have been 254 death eli­gi­ble cas­es. Of these, death notices were filed by the pros­e­cu­tion in 79 cas­es (31.1%). Death sen­tences were imposed in 30 cas­es, or 11.8% of the death eli­gi­ble cas­es. Twenty-three cas­es have com­plet­ed appel­late review, and 4 inmates have been exe­cut­ed. Three of the four inmates exe­cut­ed waived part of their appeals, there­by has­ten­ing their exe­cu­tions. The oth­er 19 cas­es were reversed, almost all result­ing in a sen­tence of life with­out parole.

With respect to the costs of the death penal­ty, the report concluded:

  • At the tri­al lev­el, death penal­ty cas­es are esti­mat­ed to gen­er­ate rough­ly $470,000 inad­di­tion­al costs to the pros­e­cu­tion and defense over the cost of try­ing the same case as an aggra­vat­ed mur­der with­out the death penal­ty and costs of $47,000 to $70,000 for court personnel.
  • On direct appeal, the cost of appel­late defense aver­ages $100,000 more in death penal­ty cas­es, than in non-death penal­ty murder cases.
  • Personal restraint peti­tions filed in death penal­ty cas­es on aver­age cost an additional$137,000 in pub­lic defense costs.

The Subcommittee offered a series of rec­om­men­da­tions regard­ing the state’s death penal­ty, but declined to state a rec­om­men­da­tion on whether it should be con­tin­ued:

1. The State should pro­vide full fund­ing for all costs of pros­e­cu­tion and defense of
aggra­vat­ed mur­der cas­es. State fund­ing should include pro­grams and poli­cies to
assure high qual­i­ty rep­re­sen­ta­tion. The State should inves­ti­gate the best mod­el for
deliv­ery of effec­tive and effi­cient rep­re­sen­ta­tion, includ­ing the pos­si­bil­i­ty of a
statewide pub­lic defend­er agency for aggra­vat­ed mur­der cas­es.
2. The defense team in a death penal­ty case should include, at a min­i­mum, the two
attor­neys appoint­ed pur­suant to SPRC 2, a mit­i­ga­tion spe­cial­ist and an
inves­ti­ga­tor. Psychiatrists, psy­chol­o­gists and oth­er experts and sup­port per­son­nel
should be added as need­ed.
3. The fund­ing agree­ment or bud­get for a pub­lic defend­er agency should pro­vide for
case­load adjust­ment when a lawyer is appoint­ed to a death penal­ty case, so that the
attor­ney may be able to devote the time and atten­tion nec­es­sary to pro­vide
com­pe­tent defense in the death penal­ty case. The case­load adjust­ment may
involve hir­ing addi­tion­al lawyers by the agency or a reduc­tion in cas­es assigned to
the agency.
4. Flat fees, caps on com­pen­sa­tion and lump-sum con­tracts for tri­al attor­neys are
improp­er in death penal­ty cas­es.
5. Private prac­tice attor­neys appoint­ed in death penal­ty cas­es should be ful­ly
com­pen­sat­ed for actu­al time and ser­vice per­formed at a rea­son­able hourly rate
with no dis­tinc­tion between rates for ser­vices per­formed in court and out of court.
Periodic billing and pay­ment should be avail­able.
6. The Subcommittee’s study has been lim­it­ed in scope, and there are addi­tion­al
top­ics con­cern­ing the death penal­ty which could be addressed in a com­pre­hen­sive
study; there­fore, the Subcommittee rec­om­mends that a sep­a­rate task force cre­at­ed
by the Legislature should be ded­i­cat­ed to a mul­ti-dis­ci­pli­nary exam­i­na­tion of the
death penal­ty.
7. The Administrative Office of the Courts should pro­vide cap­i­tal case train­ing and
resources for judges, the cap­i­tal tri­al desk book should be kept cur­rent, and a
judi­cial men­tor­ship pro­gram in cap­i­tal cas­es should be estab­lished.
8. The Subcommittee rec­om­mends that the Washington Supreme Court autho­rize the
Capital Counsel Committee to cre­ate and main­tain two lists of attor­neys qual­i­fied
to rep­re­sent a cap­i­tal defen­dant in the tri­al court. The first list should include those
indi­vid­u­als who have demon­strat­ed their qual­i­fi­ca­tions, as defined in SPRC 2, to
serve as ​“first chair” in a cap­i­tal case. The sec­ond list should include those
indi­vid­u­als who have not yet sat­is­fied the require­ments to serve as ​“first chair,”
but who are qual­i­fied to serve as ​“sec­ond chair” and who are inter­est­ed in gain­ing
the expe­ri­ence nec­es­sary to be placed on the ​“first chair” list. Trial courts may,
but need not, appoint an attor­ney from the ​“sec­ond chair” list.
In addi­tion, the Subcommittee rec­om­mends that the Washington Supreme Court
direct that the Capital Counsel Committee, when con­duct­ing its ini­tial and its
year­ly review of appli­cants, solic­it infor­ma­tion from judges before whom the
appli­cant has prac­ticed, oppos­ing coun­sel, co-coun­sel, peers and super­vi­sors. The
sub-com­mit­tee rec­om­mends that the Washington Supreme Court direct that the
Capital Counsel Committee pay par­tic­u­lar atten­tion to any dec­la­ra­tions,
alle­ga­tions, or judi­cial find­ings of inef­fec­tive assis­tance of coun­sel.
9. The Death Penalty Subcommittee rec­og­nizes that no sin­gle statewide rate can
account for the var­i­ous fac­tors that should be tak­en into con­sid­er­a­tion to deter­mine
com­pen­sa­tion for lead coun­sel in a death penal­ty case at tri­al lev­el. The hourly rate
estab­lished for lead coun­sel in a par­tic­u­lar case should be based on the
cir­cum­stances of the case and the attor­ney being appoint­ed, includ­ing the
fol­low­ing fac­tors: the antic­i­pat­ed time and labor required in the case, the
com­plex­i­ty of the case, the skill and expe­ri­ence required to pro­vide ade­quate legal
rep­re­sen­ta­tion, the attor­ney’s over­head expens­es and the exclu­sion of oth­er work
by the attor­ney dur­ing the case. The sub­com­mit­tee finds that the fed­er­al rate of
$163.00 (in 2006 dol­lars) is a rea­son­able rate of com­pen­sa­tion for pri­vate lawyers
appoint­ed as lead defense coun­sel in death penal­ty cas­es. The sub­com­mit­tee
rec­om­mends that under no cir­cum­stance should the hourly rate for lead coun­sel
appoint­ed in a death penal­ty case be less than $125.00 per hour (in 2006 dol­lars).

(FINAL REPORT OF THE DEATH PENALTY SUBCOMMITTEE OF THE COMMITTEE ON PUBLIC DEFENSE, Washington State Bar Association, December 2006). See Costs and Representation.

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