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.

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