REPRESENTATION: Texas Creates its First Capital Case Public Defender's Office

Lubbock criminal attorney Jack E. Stoffregen will head West Texas’ first public defender service devoted solely to capital cases. Centered in Lubbock County, a sparsely populated area that has few local criminal-defense attorneys with capital murder trial experience, the West Texas Regional Public Defender Office will handle the cases of indigent defendants who cannot afford an attorney. The office, with a budget of $2.5 million funded by Texas, is expected to alleviate some of the high costs death penalty cases can incur. Recent figures show that a capital case can cost a west Texas county up to $500,000. According to KCBD News in Texas, the West Texas Regional Public Defender Office will reduce capital trial costs and “in turn will save taxpayers money.” (“Lubbock Lawyer Chosen as Chief Defender,”, Oct. 15, 2007). See also Resources, Costs, and Representation. The office will begin taking cases in January 2008.

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NEW VOICES: Veteran Police Officer Concludes 'death penalty is inefficient and extravagantly expensive'

Norm Stamper, a 35-year veteran police officer from San Diego, recently wrote in The Mercury News that from his experience, "the death penalty is inefficient and extravagantly expensive.” Instead of spending millions of dollars on the death penalty, Stamper writes, “Spending scarce public resources on after-school programs, mental health care, drug and alcohol treatment, education, more crime labs and new technologies, or on hiring more police officers, would truly help create safer communities.”

Stamper cites the Los Angeles Times, which found that the death penalty in California costs $114 million per year beyond the cost of keeping prisoners in prison for life. The New York Times, he adds, has reported that the states without the death penalty have lower average rates of homicide than those with the death penalty, showing that the death penalty is not an effective deterrent. Furthermore, the sentencing of 124 innocent people to death row has demonstrated the inefficiency and inaccuracies of the death penalty system.
(“Death penalty wastes money, while failing to reduce crime” by Norm Stamper, The Mercury News, Nov. 19, 2007). See also Costs, Innocence, and Deterrence.

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Growing Costs Bring Some Capital Cases to a Halt

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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Closing of the Capital Defender Office Will Save the State Millions as New York's Death Penalty Ends

New York's Capital Defender Office is preparing to close its doors in the wake of a N.Y. Court of Appeals ruling that disposed of the final appeal of a death sentence under the capital punishment law declared unconstitutional in 2004. "It is . . . my intention to close the office as soon as practically possible," said Kevin M. Doyle, who has served as Executive Director of the defender office established in 1995. Doyle said there is no point in keeping the office open given the status of the death penalty in New York and noted that the office will close within a matter of months.

At one time the Capital Defender Office had more than 70 staffers and an annual budget of $14 million. Now it has a $1.3 million budget and six people on staff. The remaining staffers now have the responsibility of reviewing some 3,000 boxes of information about its cases and finding a way to properly preserve privileged materials. Since the office was established, 10,000 murders have occurred in New York. Prosecutors considered bringing the death penalty in 877 capital-eligible cases, and district attorneys filed notice of intent to seek the death penalty in 58 cases. Juries in only seven cases ultimately returned death sentences.  No one was executed.

"In many instances, thanks to the Capital Defender Office, the D.A.s decided not to seek the death penalty. The relatively small amount of money spent on presentation before the D.A.s saved the state a lot of money," said attorney Ronald Tabak, president of New York Lawyers Against the Death Penalty and special counsel at Skadden, Arps, Slate, Meagher & Flom.

The New York Department of Correctional Services will also benefit from the Court of Appeals ruling. The death row at Clinton Correctional Facility will now close, saving the state an estimated $300,000 per year.
(New York Law Journal, October 29, 2007). See Representation and Recent Legislative Activities.

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New Mexico Supreme Court Stops Death Penalty Trial Over Funding Issue

The New Mexico Supreme Court halted a death penalty case against 2 prison inmates charged with killing a guard during a 1999 riot because the defense has received insufficient funding to proceed. "Defense counsels' compensation is inadequate under the facts of this case, violating defendants' Sixth Amendment right to effective assistance of counsel," the court said in a unanimous ruling. The court held that an additional $200,000 must be appropriated by the legislature before the case can move ahead.

Contracts with the defense team expired in November 2003, and the attorneys have not been paid since then although they have continued to work on the case. The attorney general's office said enough funding has been allocated to cover the costs of attorneys contracted to represent the defendants, but the defense team argues that the state has provided only half the funds needed to adequately represent their clients. In light of the funding shortage, they have asked the New Mexico Supreme Court to allow them to withdraw from the case, order the state to pay them more, or dismiss the death penalty charge against their clients.

A spokesman for Governor Bill Richardson said the governor's office must review the court's ruling before deciding whether to seek additional funds for the case. The administration would need to request the additional funds from the Legislature, which convenes in January 2008 for a 30-day session.
(Las Cruces Sun-News, October 26, 2007). See Costs and Representation.

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Death Penalty Prosecution Endangers Indigent Defense System in Georgia

A shortage of state funds to pay defense attorneys, experts, and investigators has brought jury selection in the trial of Brian Nichols in Georgia to a halt. Superior Court Judge Hilton M. Fuller (pictured), Jr. stopped jury selection after just two days due to concerns that Nichols' defense team did not have adequate funding to represent their client. His ruling came in response to a defense motion that noted, "[A]t this time, and for some period of time in the past, no defense experts have been engaged in ongoing efforts on this case. . . . Several experts and investigators have sent demand letters . . . declaring that unless and until the Georgia Public Defender Standards Council makes good on pending bills, no significant ongoing further work will be conducted." In his ruling, Hilton expressed frustration with having to delay the case, but added that he is "interested in getting this case tried . . . in a way the constitution requires."

The prosecution is seeking the death penalty against Nichols for charges stemming from a 2005 Fulton County Courthouse shooting incident.  Nichols has apparently agreed to plead guilty (and thereby eliminate expenses) in exchange for a sentence of life without parole.  The Georgia Public Defender Standards Council has stated that it is not capable of both paying the costs for Nichols' trial and carrying out its duty in roughly 80 other capital cases in the state. The state maintains that there is not enough money for other capital cases and it was forced to cut off funding for Nichols' case as of July 1, 2007. To date, Georgia's legislature and Governor have refused to step in to address the funding problem. Fuller has warned that the case may never go forward without adequate defense funding.

Georgia Senator Vincent Fort said that he is concerned that his colleagues in the legislature have not acted to address the problem: "What concerns me is that the judge is saying this will be kicked back, that on appeal this will be sent back, and ironically what that means is it will cost what? More money. . . . The council needs to come forward, the state, the Perdue administration needs to find a way to fund this. It's a matter of being pennywise and pound foolish."
(Fulton County Daily Report, October 18, 2007; Associated Press, October 18, 2007; Atlanta Journal-Constitution, October 6, 2007).  See CostsRepresentation, and Life Without Parole.

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Atlanta Journal-Constitution Series

MORE STAYS GRANTED On October 24, the U.S. Court of Appeals for the 11th Circuit granted a stay of execution to Daniel Siebert, who was to be executed in Alabama on Oct. 25. On Oct. 22, the Georgia Supreme Court granted another stay, this time to Curtis Osborne. These stays are related to the issue of lethal injection as the U.S. Supreme Court considers the matter.

According to “A Matter of Life or Death,” a recent four-part news series published by the Atlanta Journal-Constitution, Georgia’s death penalty is “as predictable as a lightning strike.” Based on an investigation of 2,328 murder convictions in Georgia between January 1, 1995, and December 31, 2004, the paper determined that the state’s capital punishment system is unfairly shaped by racial and geographic bias, and fails to reserve the death penalty for “the worst of the worst.”

The AJC reporters worked with University of Maryland criminologist Ray Paternoster to examine the cases. Though their investigation determined that 1,315 of these cases involved crimes that made defendants eligible for the death penalty, prosecutors sought it in only 25% of those cases. Of those that faced a capital trial, only 1 in 23 was sentenced to death. “It’s like a roulette wheel. Arbitrariness is a weakness of the death penalty,” observed former Georgia Chief Justice Norman Fletcher.

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Expensive Death Penalty Prosecutions in Florida May Mean Others Don't Go to Trial

Florida State Attorney Harry Shorstein recently said that cuts to his budget could force his staff to make tough decisions with regard to criminal prosecutions. Shorstein said a predicted budget cut for the 20 state attorney offices in Florida would be "catastrophic," projecting that his staff alone would lose 16 members and may have to abandon expensive death penalty cases. "There will be cases that can’t be tried. Will it mean we can’t get to the trials? Will it take longer? Will it, will it clog the criminal justice system? Yes. . . . We are strained to the breaking point. . . . Instead of seeking the death penalty, maybe we'll seek something else," Shorstein said.

He presented statistics from the Florida Department of Corrections that show the Fourth Judicial Circuit (which Shorstein's office covers) leads all other circuits with 42 inmates on death row.  The problem, he indicated, is that law enforcement agencies have increased budgets, put more officers on the streets and made more arrests, but that the State's Attorney's Office has not grown to meet the increased prosecution demands. Cuts to the Office's budget would leave staff without the finances need to handle these cases.

Duval County Sheriff John Rutherford echoed Shorstein's frustration, noting that the state plans to increase his budget during the coming year due to an increase in violent crime and the county's murder rate. He said it is frustrating to have his officers make arrests only to have suspects not go to trial because of a shrinking State Attorney's budget. He noted, "We can't keep putting them in jail and letting them go."
(Jacksonville Daily Record, September 13, 2007). See Costs and Representation.

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EDITORIALS: "At Some Point, A Death Penalty Stops Making Sense"

The Witchita Eagle recently called on Kansas lawmakers to reconsider the death penalty, stating: "At some point, given the legal problems and the lack of executions, a death penalty stops making sense for Kansas." The paper said the law has cost taxpayers millions of dollars without the benefit of deterring crime. Moreover, the state has not had a single execution since capital punishment was reinstated in 1994, and the "care and caution" warranted to protect against wrongful convictions could mean the state's first execution is more than a decade away.

The editorial follows:

It's hard to imagine that any of the 89 Kansas lawmakers who voted in 1994 to revive the death penalty for the "the worst of the worst" criminals anticipated it would still be unused come 2007. Each year sends more men to Kansas' death row, nine in all currently, but the legal challenges to their sentences continue at a glacial pace. Then there is the cost to taxpayers, averaging $1.2 million each by one tally. At some point, given the legal problems and the lack of executions, a death penalty stops making sense for Kansas.

In the early '90s, the average time between sentencing to execution nationally was eight years; now, it's 16 years. And Jeff Jackson, a law professor at Washburn University, recently predicted that Kansas' first execution since reinstatement of capital punishment could be another dozen years away. If that killer ends up being Gary Kleypas -- the first man so sentenced in Kansas since serial killers James Latham and George York were hanged on June 22, 1965 -- 23 years could have passed since his 1996 rape and murder of a Pittsburg State University student.

That would hardly seem to count as swift punishment, or fulfill legislative intent.

Supporters will point to Texas' eight-year average gap and 402 executionssince 1974 and ask of Kansas: What's the holdup?

First Kleypas must be resentenced, as ordered by the Kansas Supreme Court. Another denizen of death row must be retried entirely -- Michael Marsh of Wichita, whose 1996 case was involved in the U.S. Supreme Court's 2006 decision upholding Kansas' death penalty. The appeal of Gavin Scott, sentenced to die for killing a rural Goddard couple in 1996, was heard last week by the state's Supreme Court, where the defense argued that the word "or" in the phrase "cruel or unusual" punishment allows the court to strike down the death penalty law again. Meanwhile, the appeals of some of the best-known killers -- including Jonathan and Reginald Carr, Douglas Belt and John E. Robinson Sr. --are still to come.

The proliferation of murders in Wichita this year -- 37 and counting, compared with 26 for all of 2006 -- casts increasing doubt on the death penalty's value as a deterrent. So do the state's pending capital cases against Edwin R. Hall, charged with killing Olathe teen Kelsey Smith; Justin Thurber, charged in the Cowley County death of 19-year-old Jodi Sanderholm; and Elgin Ray Robinson Jr., facing capital murder charges in the death of 14-year-old Wichitan Chelsea Brooks.

Plus, more complications lie ahead: The U.S. Supreme Court ruled last year that killers sentenced to die by lethal injection, the preferred method in Kansas and 37 other states, can challenge the constitutionality of that method of execution.

There are many other good reasons for a rethinking, including the recent principled argument of Sen. Sam Brownback, R-Kan., that capital punishment is only apt in a very few "cases where we cannot protect the society from the individual."

Care and caution are warranted to ensure that only the guilty are subjected to the ultimate punishment. But as difficult as the 1994 legislative debate was, it should lead to another any day now -- about whether the death penalty, given its complexities and cost, is still worth having in Kansas.

(Wichita Eagle, September 13, 2007). See Editorials, Costs, and Deterrence.

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Georgia's Death Penalty System in Crisis Over Funding

Just two years after the creation of the Georgia Office of the Capital Defender, which successfully defended 30 death penalty cases in 2006 without a single client being sentenced to death, state budget cuts have left the attorneys with less than half the resources needed to carry out their current case load. The office has been asked to oversee the defense of 80 clients this year, including Brian Nichols, who faces the death penalty for a highly publicized 2005 Fulton County courthouse incident in which four people were killed. According to public records, expenses associated with the Nichols case have consumed nearly half the budget of the Capital Defender this year. The office has been asked to represent the other 79 clients with the remaining money, an amount that attorneys warn will negatively impact the quality of representation provided to those facing the death penalty.

Christopher Adams recently stepped down as director of the Office of the Capital Defender because he said Georgia made it nearly impossible for the office to function. He noted that the Public Defender Standards Council, which oversees the defender office, made it clear that they will not allow the staff to argue for more money for their clients in court. "My belief is that the only solution to this problem that both protects our clients and complies with the Sixth Amendment is to go to Court to tell the truth about the lack of adequate resources," Adams observed.

The office was created in response to criticisms of Georgia's chronically under-funded death penalty representation system that was repeatedly found negligent in defending capital cases. Carmen Hernandez, president of the National Association of Criminal Defense Lawyers, said that the state's failure to adequately fund its death penalty representation office is a sharp departure from the goals that led Georgia to establish the program two years ago. "We are incredibly concerned that a state which was on such a positive track has so quickly defaulted on its promise to create a working criminal justice system. Georgia has refused to fund its system and, as a result, Georgia’s system is once again broken. It has gone from leading light to disgrace in a few short years,” Hernandez said.

Though Georgia has established a state commission to study the issue of financing for indigent defense, the group has not acted to address the current capital defense shortfall.
(New York Times, September 7, 2007). See Costs and Representation.

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