Federal Death Penalty Cases

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FEDERAL DEATH PENALTY CASES: 

RECOMMENDATIONS CONCERNING 

THE COST AND QUALITY OF 

DEFENSE REPRESENTATION 

Prepared by

Subcommittee on Federal Death Penalty Cases 

Committee on Defender Services 

Judicial Conference of the United States

Honorable James R. Spencer, Subcommittee Chair 

Honorable Robin J. Cauthron 

Honorable Nancy G. Edmunds

 

May 1998

 

The recommendations in this report were adopted by the Judicial 

Conference of the United States on September 15, 1998

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Table of Contents

FEDERAL DEATH PENALTY CASES: RECOMMENDATIONS 

CONCERNING THE COST AND QUALITY 

OF DEFENSE REPRESENTATION

TABLE OF CONTENTS

Executive Summary 

Introduction 

I. Analysis & Findings

A. Number and Overall Cost of Federal Death Penalty Cases

1. The Decision to Prosecute in Federal Court 

2. The Decision to Authorize the Death Penalty 

3. The Decision to Go to Trial 

B. Factors Affecting the Scope and Cost of Defense Representation

1. Death Penalty Cases Involve Two Trials 

2. Complexity of the Guilt Phase 

3. Scope of the Penalty Phase

4. Special Obligations of Counsel in a Death Penalty Case

a. Consultation with the Client 

b. Motions Litigation 

c. Jury Selection 

5. Effect of Prosecution Resources

6. Effect of the Authorization Process 

7. Importance of Experts and their Cost 

C. Factors Affecting the Availability, Cost and Quality of Counsel

1. Importance of "Learned" Counsel

2. Federal Death Penalty Resource Counsel Project 

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3. Consultation Prior to Appointment of Counsel 

4. Availability and Recruitment of Qualified Lawyers

a. Federal Defender Organizations 

b. Panel Attorneys

5. Adequacy of Compensation to Attract Qualified Counsel

6. Number of Counsel

D. Efforts to Control the Cost of Representation 

Conclusion 

II. Recommendations & Commentary 

1. Qualifications for Appointment 

a. Quality of Counsel 

b. Qualifications of Counsel 

c. Special Considerations in the Appointment of Counsel on Appeal 

d. Special Considerations in the Appointment of Counsel in PostConviction Proceedings 

e. Hourly Rate of Compensation for Counsel

2. Consultation with Federal Defender Organizations or the Administrative Office

a. Notification of Statutory Obligation to Consult 

b. Consultation by Courts in Selecting Counsel 

c. Consultation by Federal Defender Organizations and the 

Administrative Office in Recommending Counsel

3. Appointment of More Than Two Lawyers 

4. Appointment of the Federal Defender Organization 

a. FDO as Lead Counsel 

b. FDO as Second Counsel

5. The Death Penalty Authorization Process

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a. Streamlining the Authorization Process 

b. Court Monitoring of the Authorization Process

6. Federal Death Penalty Resource Counsel 

a. Information from Resource Counsel 

b. Technology and Information Sharing

7. Experts 

a. Salaried Positions for Penalty Phase Investigators 

b. Negotiating Reduced Rates 

c. Directory of Experts

8. Training 

9. Case Budgeting

a. Consultation with Prosecution 

b. Prior to Death Penalty Authorization 

c. After Death Penalty Authorization 

d. Advice from Administrative Office and Resource Counsel 

e. Confidentiality of Case Budgets 

f. Modification of Approved Budget 

g. Payment of Interim Vouchers 

h. Budgets in Excess of $250,000 

i. Death Penalty Not Authorized 

j. Judicial Conference Guidelines 

k. Judicial Training for Death Penalty Cases 

10. Case Management

a. Non-lawyer Staff 

b. Multi-defendant Cases

i. Early Decision Regarding Severance 

ii. Regularly Scheduled Status Hearings 

iii. "Coordinating Counsel" 

iv. Shared Resources 

v. Voucher Review 

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11. Availability of Cost Data

Appendix A: Recommendations 

Appendix B: Sources & Methodology 

Appendix C: Supporting Data (Not Available Online)

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Executive Summary

EXECUTIVE SUMMARY

This report addresses the cost, availability and quality of defense representation in federal death penalty 

cases and recommends steps which should be taken in order to keep expenditures in these cases within 

reasonable limits. It has been prepared by the Subcommittee on Federal Death Penalty Cases of the 

Judicial Conference Committee on Defender Services. The report was prompted by judicial and 

congressional concerns about the costs involved in providing defense services in federal death penalty 

cases and is the product of extensive study and data collection. 

Federal death penalty prosecutions are large-scale cases that are costly to defend. They require more 

lawyers, working more hours, at a higher hourly rate than other federal criminal matters. The number of 

federal death penalty prosecutions has grown dramatically in the last several years, and their impact on 

the defender services appropriation cannot responsibly be ignored. The judiciary has a duty to ensure 

that its funds are spent wisely, and to identify the best ways to provide cost-effective representation in 

these challenging cases. 

To this end, the Subcommittee has thoroughly examined the nature of defense representation in federal 

death penalty cases. Part I of this report sets forth the Subcommittee's analysis and findings, which are 

based upon qualitative and quantitative information gathered from many sources. This part of the report 

describes the number of federal death penalty cases and the cost of defending them, and discusses the 

characteristics of federal death penalty cases and the special duties they impose on defense counsel. This 

information is essential to a full understanding of the recommendations set forth in Part II of the report. 

Also contained in Part I are data on the expense of prosecuting federal death penalty cases, which have 

been provided by the Department of Justice. 

In general, the Subcommittee on Federal Death Penalty Cases has concluded that judges assigned to 

federal death penalty cases have been appropriately conscious of the need to monitor defense costs and 

that, for the most part, their efforts to control expenses have been successful. In the vast majority of 

cases, moreover, judges have been able to appoint well-qualified lawyers with sufficient experience in 

death penalty litigation to make cost-effective decisions about the resources required to present a 

defense. Overall, the average cost of representation in each major category of federal death penalty cases 

is reasonable in relation to the obligations imposed on defense counsel and the costs of prosecuting such 

cases. Nevertheless, the Subcommittee believes the additional cost-containment measures proposed in its 

recommendations should be implemented. 

Among the most important findings presented in Part I of the report are the following: 

1. The number of federal prosecutions in which an offense punishable by death is charged, and to which 

special statutory requirements for the appointment and compensation of counsel apply, increased sharply 

after the 1994 Federal Death Penalty Act increased the number of federal crimes punishable by death. 

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● Number of defendants charged with offenses punishable by death (by year of indictment): 

1991 -- 12 

1992 -- 45 

1993 -- 28 

1994 -- 45 

1995 -- 118 

1996 -- 159 

1997 -- 153 

2. The cost of defending cases in which the Attorney General decides to seek the death penalty for 

commission of an offense potentially punishable by death (authorized cases) is much higher than the 

cost of defending cases in which the Attorney General declines to authorize the death penalty for an 

offense punishable by death. The number of authorized cases has increased since 1994. 

● Number of cases where the Attorney General has authorized seeking the death penalty, by year in 

which the authorization decision was made (figures provided by the Department of Justice): 

1990 -- 2 

1991 -- 6 

1992 -- 16 

1993 -- 5 

1994 -- 7 

1995 -- 17 

1996 -- 20 

1997 -- 31 

● Average total cost per representation of a sample of cases in which the defendant was charged 

with an offense punishable by death and the Attorney General did not authorize seeking the death 

penalty (1990-1997): $55,772

● Average total cost per representation of a sample of cases in which the defendant was charged 

with an offense punishable by death and the Attorney General authorized seeking the death 

penalty (includes cases resolved by guilty plea as well as cases resolved by trial) (1990-1997): 

 $218,112 

3. The cost of defending a federal death penalty case that is resolved by means of a trial is higher than 

the cost of defending a case that is resolved through a guilty plea, even though many guilty pleas are 

entered after most of the preparation for trial has been completed. The number of federal death penalty 

trials, and the number of individual defendants tried on capital charges, has increased since the federal 

death penalty was revived by Congress in 1988. 

● Number of federal death penalty trials/defendants, by calendar year: 

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1988 -- 0 

1989 -- 0 

1990 -- 1 trial, 1 defendant 

1991 -- 4 trials, 5 defendants 

1992 -- 1 trial, 1 defendant 

1993 -- 3 trials, 7 defendants 

1994 -- 1 trial, 3 defendants 

1995 -- 4 trials, 7 defendants 

1996 -- 5 trials, 7 defendants 

1997 -- 8 trials, 11 defendants 

● Average total cost per representation of a sample of authorized federal death penalty cases 

resolved through a guilty plea (1990-1997): $192,333 

● Average total cost per representation of a sample of authorized federal death penalty cases 

resolved through a trial (1990-1997): $269,139 

4. The costs of defending federal death penalty cases appear to be reasonable in relation to the costs of 

prosecuting such cases. The Department of Justice collected data regarding its prosecution costs in a 

sample of authorized cases, including some that went to trial and some that ended in guilty pleas. These 

cost data did not include non-attorney investigative costs or the value of services provided to the 

prosecution by law enforcement agencies. 

● Average total cost of prosecuting an authorized federal death penalty case (based on a sample of 

cases resolved by guilty plea and by trial selected by the Department of Justice; does not include 

any non-attorney investigative costs or the costs of expert and other assistance provided by law 

enforcement agencies; figures provided by the Department of Justice): $365,000 

5. The overall cost of providing representation in federal death penalty cases is due to the growing 

number of such prosecutions (in particular the growing number of trials), the special duties of counsel in 

federal death penalty cases, and the higher hourly rate paid to counsel. The number of cases depends 

upon prosecutorial decisions, over which the judiciary has no control. The special obligations of counsel 

are due to a combination of those responsibilities inherent in any capital case and the unusual 

complexity of many federal death penalty prosecutions, particularly drug conspiracy cases. The higher 

maximum rate for counsel in federal death penalty cases is actually lower than the market rates charged 

by the lawyers appointed in federal death penalty cases, and is required in order to assure an adequate 

supply of qualified lawyers. Generally, courts have succeeded in appointing counsel with the experience 

and judgment needed to make prudent use of resources in defending federal death penalty cases. Federal 

defender organizations are not at this time ready to assume a major portion of the responsibility for 

representation in federal death penalty cases, so that courts must continue to appoint panel attorneys and 

must offer an adequate rate of compensation. 

In Part II of this report, the Subcommittee recommends additional steps designed to contain and reduce 

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the cost of capital defense representation. In the death penalty area in particular, cost-effectiveness is 

inseparable from high quality representation: assuring appropriate resources for the defense at the trial 

stage minimizes the risk of time-consuming and expensive post-conviction litigation later on. Therefore, 

in addition to recommendations designed to monitor and limit expenditures, the Subcommittee has 

proposed a number of measures intended to assure the appointment of well-qualified counsel and to 

make other improvements in the delivery of defense services. The most significant of the 

Subcommittee's recommendations can be summarized as follows: 

● Courts should assure the appointment of highly qualified counsel whenever the defendant is 

charged with an offense punishable by death. The hourly rate authorized for compensation of 

counsel in federal death penalty cases should remain high enough to attract a sufficient number of 

qualified attorneys. Recommendation 1.

● Courts should consult with the local federal public defender, or, in districts not served by a 

federal public defender, with the Administrative Office of the U.S. Courts to identify counsel. In 

districts served by a community defender organization, courts should consult with the community 

defender organization. Recommendation 2.

● Courts should not appoint more than two lawyers to represent a defendant in a federal death 

penalty case except in exceptional circumstances; however, courts should authorize appointed 

counsel to utilize the services of other lawyers to assist them on a more limited basis when this 

would contain costs or when additional staff might be required to meet time limits. 

Recommendation 3.

● Courts should appoint federal defender organizations as lead or second counsel in federal death 

penalty cases only if the federal defender organization has staff with the appropriate 

qualifications and experience and other resources sufficient to undertake the representation 

without unduly disrupting the operation of the office. Recommendation 4.

● The Department of Justice should streamline the review of federal death penalty cases so that 

cases in which a request for the death penalty is very unlikely will be reviewed more quickly. An 

earlier decision not to seek the death penalty will reduce the length of time the case must be 

treated as a federal death penalty case where the defendant is entitled to two lawyers who may be 

paid at a higher hourly rate. Expediting review of cases in which a request for the death penalty is 

unlikely, such as cases in which the local United States Attorney strongly recommends against 

seeking the death penalty, will significantly reduce defense costs without diminishing the 

usefulness of centralized review. Recommendation 5.

● The Administrative Office of the U.S. Courts should continue to support the Federal Death 

Penalty Resource Counsel Project, which has become essential to the delivery of high quality, 

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cost-effective defense representation, and it should consider expanding the availability of model 

pleadings and other information needed by counsel in federal death penalty cases through the use 

of technology. Recommendation 6.

● Federal defender organizations should consider creating salaried positions for penalty phase 

investigators who would coordinate preparation for the penalty phase in federal death penalty 

cases at a lower cost than a mitigation specialist retained as an expert at an hourly rate. Lawyers 

should be encouraged to negotiate reduced rates with experts. Also, information about qualified 

experts in fields often involved in federal death penalty cases and about the rates they charge 

should be made available to counsel. Recommendation 7.

● The Administrative Office of the U.S. Courts should continue to support training for counsel in 

federal death penalty cases. Recommendation 8.

● Courts should require lawyers to develop case budgets to ensure the most effective and 

economical use of resources. Case budgeting should be done both before the prosecution makes a 

decision whether it will seek the death penalty and after, if the death penalty is authorized. Case 

budgets should be reviewed if circumstances change. The Judicial Conference should develop 

guidelines for case budgeting, and judges and lawyers should be trained in the budgeting process. 

Recommendation 9.

● In multi-defendant federal death penalty cases, courts should consider making early decisions 

about whether to sever non-capital defendants from defendants facing capital charges. Courts 

should also consider using case management techniques to diminish the cost of document 

production and distribution and to reduce duplication of effort among defense counsel. 

Recommendation 10.

● The Judiciary should improve its capacity to track costs in federal death penalty cases. 

Recommendation 11.

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INTRODUCTION

This report responds to judicial and congressional concerns about the cost of providing representation in 

federal death penalty cases. Congress revived the death penalty for federal crimes in 1988, authorizing 

capital punishment for "drug kingpin" murders.(1) In 1994, Congress expanded to fifty the number of 

federal crimes punishable by death.(2) The portion of the Defender Services appropriation allocated to 

federal death penalty cases has increased over the past decade, especially since fiscal year (FY) 1995. 

Federal death penalty cases consumed almost six percent of the Defender Services obligations for 

payments to panel attorneys for fiscal year 1997, although they comprised approximately 0.3 percent of 

the caseload.(3)

In order to understand better the reasons for the high cost of representation in federal death penalty cases 

in comparison to non-capital cases, Judge Emmett Ripley Cox, the Chair of the Judicial Conference 

Committee on Defender Services, in May 1997 appointed a Subcommittee on Federal Death Penalty 

Cases to study the judiciary's current approach to the appointment and compensation of counsel in these 

cases, its success in recruiting qualified attorneys, and the quality and cost of services provided. Judge 

Cox named three members of the Committee on Defender Services to the Subcommittee: Judge James 

R. Spencer, of the Eastern District of Virginia, Chair of the Subcommittee; Judge Robin J. Cauthron, of 

the Western District of Oklahoma; and Judge Nancy G. Edmunds, of the Eastern District of Michigan. 

Norman Lefstein, Dean of the Indiana University School of Law at Indianapolis, was selected to serve as 

the Subcommittee's chief consultant. 

The Subcommittee gathered both qualitative and quantitative information about federal death penalty 

cases. Dean Lefstein and his staff (4) conducted extensive interviews with lawyers and judges 

representing a wide range of perspectives, and covering more than half of the judicial districts in which a 

federal death penalty prosecution has been authorized. The Subcommittee's staff also reviewed articles 

and reports concerning representation in death penalty cases, including the recent Report on Costs and 

Recommendations for the Control of Costs of the Defender Services Program prepared by Coopers & 

Lybrand Consulting. Additionally, staff compiled a database containing cost information regarding 

federal death penalty cases from 1990, the year the first post-Furman federal death penalty case was 

authorized, to the end of fiscal year 1997. The Subcommittee's staff analyzed these data by correlating 

cost information with descriptive information (case demographics), and by comparing costs in federal 

death penalty cases with costs in non-capital homicide cases. The Subcommittee also obtained 

information concerning the time spent by attorneys in federal defender organizations (FDOs) on 

representation in federal death penalty cases and the costs incurred by local United States Attorney's 

Offices in prosecuting them. Because of the small number of federal death penalty cases that have been 

reviewed on direct appeal or in post-conviction proceedings, the quantitative analyses in this report 

focus on representation at the trial stage, and therefore do not reflect the overall cost of representation in 

a case in which a death sentence is imposed.(5)

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The Subcommittee's findings are set out in Part I of this Report. The Subcommittee has proposed eleven 

recommendations to enhance the judicial administration of federal death penalty cases. These 

recommendations, supported by commentary, are set out in Part II. The recommendations alone are 

reproduced in Appendix A. The Subcommittee's methodology and the sources consulted are described in 

Appendix B. Additional statistical and other supporting data are contained in Appendix C. 

I. ANALYSIS AND FINDINGS

In general, the high cost of providing representation in federal death penalty cases is a result of the 

heavy demands these cases place on the time and skill of counsel and the growing number of federal 

criminal cases in which the defendant faces a potential sentence of death. The cost of representation in 

each federal death penalty case depends upon several elements: the number of hours each attorney must 

work to discharge his or her ethical obligation to the client; the hourly rate at which the attorney is 

compensated; and the nature, type, and cost of investigative and expert services reasonably required. To 

understand why federal death penalty cases cost so much, and how these costs may be controlled 

consistent with constitutional and statutory mandates, requires first and foremost an understanding of the 

characteristics of federal death penalty cases and the special responsibilities of defense counsel 

appointed to such cases. 

A. Number and Overall Cost of Federal Death Penalty Cases.

The total cost of providing representation in federal death penalty cases depends upon the number of 

such cases, as well as the cost of representation in each case. As described more fully below, special 

standards affecting the cost of representation apply to all federal criminal cases in which an offense 

charged is punishable by death, whether or not the prosecution ultimately decides to seek the death 

penalty.(6) Although many factors affect the cost of representation, two particularly significant ones are 

the prosecution's decisions whether to seek the death penalty and whether to accept a plea agreement to a 

sentence less than death.(7) 

1. The Decision to Prosecute in Federal Court. The total number of federal death penalty cases 

depends, in the first instance, on the decision to prosecute an offense in federal rather than in state court.

(8) The number of federal prosecutions including an offense punishable by death has increased 

dramatically, particularly since the enactment of the Federal Death Penalty Act as part of the 1994 crime 

bill. No exact count of federal death penalty cases filed nationwide by United States Attorney's offices 

since 1988 is available; a reasonable estimate, 

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however, is 560 cases(9) over the period 1991 to 1997, increasing from 12 cases in 1991, to 118 in 1995, 

159 in 1996, and 153 in 1997.(10)

The average total cost per federal death penalty representation in a sample of cases prosecuted from 

1990 to 1997 (including cases in which the prosecution ultimately declined to seek the death penalty) 

was $142,000.(11) However, the prosecution's decision to seek the death penalty -- as would be expected 

-- makes a substantial difference in the cost of representation, so 

that this overall average is not useful in assessing the resources required for a case in which the 

prosecution does decide to seek the death penalty. 

2. The Decision to Authorize the Death Penalty. The cost of representation in a federal death penalty 

case depends heavily upon whether the prosecution does or does not seek the death penalty. (See Charts 

C-4, C-5, and C-6, comparing the total costs and elements of total cost of cases in which death penalty 

authorization was granted with those in which it was denied.) While the decision to charge an offense 

punishable by death is made by a local U.S. Attorney, no federal prosecutor may actually seek the death 

penalty unless specifically authorized to do so by the Attorney General of the United States. 

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The Attorney General has authorized seeking the death penalty in a total of 111 cases between 1988 and 

December 1997.(12) The average total cost (for counsel and related services) of authorized cases in the 

Subcommittee's sample was $218,112, as compared to $55,772 for cases in which the death penalty was 

never authorized; the average total cost of cases in which the prosecution was authorized to seek the 

death penalty, but later formally withdrew its request before trial was $145,806. The number of cases in 

which the Attorney General authorized seeking the death penalty rose from two cases in 1990 to 31 

cases in 1997. Twenty-two cases in which the prosecution has been authorized to seek the death penalty 

were pending as of December 1997. 

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3. The Decision to Go to Trial. The third prosecutorial decision affecting the cost of representation is 

the decision whether to enter into a guilty plea agreement with the defendant or to try the case. (See 

Table C-7 and Chart C-8.) Of the 111 defendants against whom the Attorney General has sought the 

death penalty, the total number of defendants tried on capital 

charges in federal court was 41 through December 1997. The average total cost for authorized cases 

ending in capital trials was $269,139,(13) as compared to $192,333 for authorized cases 

resolved by a guilty plea. To date, nineteen defendants have been sentenced to death; one death sentence 

was later overturned on appeal and the case remanded for resentencing. 

B. Factors Affecting the Scope and Cost of Defense Representation.

1. Death Penalty Cases Involve Two Trials. Federal law provides for a two part (bifurcated) trial in a 

capital case. (14) In the first part, the guilt phase, the jury is asked to determine whether the prosecution 

has proven, beyond a reasonable doubt, that the defendant has committed a crime punishable by death. If 

a conviction is returned on a capital count, then in the second part, the penalty phase, the jury must first 

determine whether the prosecution has proven additional facts (aggravating circumstances) in order to 

satisfy threshold requirements for imposing the death penalty. If so, the jury considers evidence offered 

by the prosecution to justify the death penalty, including aggravating circumstances in addition to those 

required for the threshold finding, and evidence the defense offers as a reason not to sentence the 

defendant to death (mitigating circumstances). 

Lawyers in a death penalty case must prepare for both trials, and must develop an overall strategy that 

takes the penalty phase into account even in the guilt phase. This means that the way the defense 

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proceeds differs from a non-capital case in important ways beginning with jury selection. For example, 

facts that make no difference in the determination of guilt or innocence may become very important to 

the jury's assessment of the defendant's culpability in the penalty phase. Lawyers interviewed by the 

Subcommittee, for instance, described cases in which both the prosecution and the defense invested 

substantial resources in obtaining expert opinions concerning the precise manner of the victim's death, 

even though this would not affect the guilt phase verdict, because of the importance of this information 

to the determination of the appropriate penalty. 

2. Complexity of the Guilt Phase. Federal death penalty cases generally are highly complex criminal 

prosecutions, even without taking the penalty phase into account. As a representative of the Department 

of Justice remarked at a meeting with Subcommittee staff to discuss compilation of cost data, federal 

death penalty cases have more in common with complex drug conspiracy cases than with non-capital 

federal homicide cases,(15) many of which are comparatively simple cases brought in federal court only 

because they occurred on federal land. (See Table C-7.) 

Most cases in which the prosecution has sought a death sentence have invoked the "drug kingpin" 

provision of the 1988 Anti-Drug Abuse Act, 21 U.S.C. § 848(e). This statute authorizes the death 

penalty for intentional killings in furtherance of a "continuing criminal enterprise" (CCE), or serious 

drug offense, and for intentional killings of law enforcement officers to avoid prosecution for a drug 

offense. CCE cases, together with prosecutions of drug organizations under the RICO death penalty 

provision added in 1994, comprised approximately 62 percent of the authorized federal death penalty 

cases through December 1997.(16) CCE and RICO cases typically involve investigations stretching over 

years, and encompassing numerous acts of violence. They often include several homicide charges, many 

witnesses, and evidence in the guilt phase derived from wiretaps, video surveillance, informants, and 

experts. The magnitude of some of these cases is illustrated by a judge's estimate that the prosecution 

listed 500 potential witnesses in one case, and another judge's estimate that the prosecution disclosed 

30,000 pages of documents in discovery. 

Another reason drug conspiracy cases are so complex is that they often involve many defendants joined 

in a single indictment. Multi-defendant cases generally tend to cost more to defend, per defendant, than 

single defendant cases.(17) This effect may be magnified in a case in which some defendants face the 

death penalty and other defendants face only non-capital charges, as the difference in the potential 

penalty may produce significant differences in strategy both before and during trial. 

In most cases, judges have severed defendants facing capital charges from those facing only non-capital 

charges,(18) with the expectation that this will, among other things, reduce the overall cost of 

representation. Severance practices with regard to defendants facing capital charges have varied. Some 

judges have followed the more common state practice and tried each defendant separately. Others have 

severed only the penalty phase trials, so that the same jury determined the penalty for each defendant, 

but in separate hearings. Others have conducted joint penalty phase trials. 

Drug conspiracy cases (including both CCE and RICO prosecutions) are the most expensive federal 

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death penalty cases to defend. The total cost of representation in drug conspiracy cases in which the 

prosecution authorized seeking the death penalty averaged $244,185,(19) or nearly 12 percent more than 

the average total cost of all authorized cases. (See Table C-7 and Chart C-8.) 

3. Scope of the Penalty Phase. Evidence in the penalty phase of a federal death penalty trial typically 

includes a wide range of information about the defendant, the victim, and the nature of the offense that is 

not admissible in the guilt phase. Defense counsel in a federal death penalty case must investigate and 

prepare to respond to information offered by the prosecution to justify a death sentence. Federal law 

allows prosecutors to offer reliable information in the penalty phase, even if it does not satisfy the 

normal rules of evidence.(20) Although the prosecution must prove certain aggravating circumstances 

spelled out by statute, it is not limited to proving these factors. Defense counsel must therefore 

investigate and prepare to meet potential "non-statutory aggravating circumstances," such as an 

allegation that the defendant will be dangerous in the future. The penalty phase of a federal death 

penalty case therefore may include yet another "trial" in which the jury is required to determine whether 

the defendant is responsible for crimes in addition to those charged in the indictment. In one federal 

death penalty case, for example, the government attempted to prove the defendant committed another 

murder in the penalty phase, even though charges against him for that crime had been dismissed in a 

state court proceeding. Mini-trials of other criminal charges can be costly in terms of time and resources 

to prosecute and defend. 

In addition to defending against the prosecution's case for a death sentence, counsel must also plan and 

present a case for a lesser sentence. In order to effectuate the defendant's constitutional right to present 

any information in mitigation of sentence, counsel must conduct a broad investigation of the defendant's 

life history. "Although it makes no express demands on counsel, the [right to offer mitigating evidence] 

does nothing to fulfill its purpose unless it is understood to presuppose the defense lawyer will unearth, 

develop, present and insist on consideration of those 'compassionate or mitigating factors stemming 

from the diverse frailties of humankind.'"(21) Indeed, one of the most frequent grounds for setting aside 

state death penalty verdicts is counsel's failure to investigate and present available mitigating 

information.(22) The broad range of information that may be relevant to the penalty phase requires 

defense counsel to cast a wide net in the investigation of any capital case.(23)

4. Special Obligations of Counsel in a Death Penalty Case. The nature of a criminal prosecution in 

which the defendant's life is at stake transforms counsel's role from start to finish. The quality of defense 

counsel's work must always remain in accord with the gravity of the proceeding. The special obligations 

of counsel appointed to a federal death penalty case are reflected in a comparison of hours billed in 

capital as compared to non-capital homicide cases.(24) The average number of hours billed in non-capital 

homicide cases from FY 1992 to FY 1997 was 117, as compared to 962 in a sample of federal death 

penalty cases (including cases never authorized). The average number of hours billed in authorized cases 

was 1,464. While representation in a federal death penalty case differs from representation in a noncapital federal criminal case in many ways, there are several particularly notable differences. 

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Average Number of Attorney Hours Billed in 

Capital and Non-Capital Homicide Cases

Case Type In Court Hours Out of Court 

Hours

Avg. Total 

Attorney Hours 

Per 

Representation

Non-Capital Homicides 18 100 117

Capital Auth. Denied 38 391 429

Auth. Granted 231 1,233 1,464

Capital Trial 409 1,480 1,889

Plea 61 1,201 1,262

Drug Cases 277 1,343 1,619

a. Consultation with the client. An important element of death penalty representation is the 

establishment of a professional relationship with the client.(25) Although it is important in every case, 

lawyers emphasized that consultation with the client is vastly more time consuming and demanding in a 

death penalty case for several reasons. First, the nature of the penalty phase inquiry requires a 

relationship which encourages the client to disclose his or her most closely guarded life history with the 

lawyer. Experiences of mental illness, substance abuse, emotional and physical abuse, social and 

academic failure, and other "family secrets" must be revealed, researched and analyzed for the insight 

they may provide into the underlying causes of the client's alleged conduct. The establishment of trust 

and confidence is also vitally important if the lawyer is to convince the defendant to consider an offer to 

plead guilty, especially because what is offered is likely to be life imprisonment without the possibility 

of parole. Accepting such a "deal" requires tremendous faith in counsel. Another reason the attorneyclient relationship is particularly time-consuming stems from the enormous stress that the risk of a death 

sentence imposes on both the client and the lawyer; special care must be taken in order to avoid a 

rupture of the professional relationship that would force counsel to withdraw, delaying the trial. 

b. Motions Litigation. The relative novelty of the federal death penalty laws, particularly those enacted 

in the 1994 crime bill, means that many legal issues concerning the interpretation and constitutionality 

of those statutes have not been authoritatively resolved. To date, the circuit courts of appeals have 

decided only a handful of federal death penalty cases. Lawyers and judges agree that these issues are 

time-consuming to litigate. Several judges commented that they, or their law clerks, devoted months of 

preparation to a federal death penalty case. Defense lawyers have an ethical obligation to raise 

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challenges to the manner in which both the guilt and penalty phases of the trial are conducted, because if 

an issue is not raised at trial, the defendant generally cannot benefit, even if a ruling by a higher court 

subsequently favors the defense position.(26) Consequently, newer statutes tend to produce more 

constitutional and interpretive issues than statutes that have already been the subject of extensive 

appellate and Supreme Court consideration. Many issues may arise in a single case. In one multidefendant case, for example, a judge estimated that 2,800 legal pleadings had been filed by the parties. 

c. Jury Selection. The lawyer in a death penalty case also has additional responsibilities in jury 

selection. Because the same jury will generally decide the penalty phase as a well as the guilt phase, the 

court must determine whether jurors should be disqualified because their views about the imposition of 

the death penalty, for or against, would make them unable to follow the law governing penalty phase 

deliberations. Typically the "death qualification" inquiry is conducted on an individual basis. The usual 

voir dire in a federal criminal case is conducted by the judge, with limited participation by counsel. In 

death penalty cases, however, the lawyers generally participate in drafting questionnaires for prospective 

jurors, and take part in questioning the venire. Jury selection takes much longer in federal death penalty 

cases than in non-capital federal criminal cases both because the total number of jurors questioned is 

larger to allow for those who may be excused due to the death qualification inquiry, pretrial publicity or 

other factors related to the nature of the case, and because of the more extensive questioning of each 

individual prospective juror. For example, one judge who ordinarily selects a jury for a criminal case in 

an afternoon reported that it took three weeks to complete jury selection in a federal death penalty case. 

As part of its recent study of the Defender Services program, Coopers & Lybrand reviewed records of 

federal death penalty cases (including cases that were not authorized and cases resolved by guilty plea) 

from FY 1995 to FY 1997, and found a similar distribution of attorney hours for each year.(27) In-court 

hearings, including trials, comprised 14%. The largest components were legal research (20%) and 

reviewing documents (16%). Legal research and writing is of great importance in federal capital cases 

because the federal death penalty statutes have not been definitively construed.(28) Judges as well as 

lawyers reported they had to devote extraordinary amounts of time to the analysis of legal issues in 

federal death penalty cases. Conferences with the client comprised 9% of attorney hours, reflecting the 

time required to establish and sustain a professional relationship in a federal death penalty case.(29)

Another element, not directly captured in the available payment data, is the additional in- and out-ofcourt attorney time associated with jury selection in a death penalty case. 

5. Effect of Prosecution Resources. Coopers & Lybrand found that "[t]he prosecution's resources are a 

key driver of capital representation costs."(30) Interviews with lawyers and judges confirmed this. Judges 

generally reported that prosecution resources in death penalty cases seemed unlimited. Typically, at least 

two and often three lawyers appeared for the prosecution in federal death penalty cases, who were 

assisted in court by one or more "case agents" assigned by a law enforcement agency. Investigative work 

and the preparation of prosecution exhibits for trial, including charts, video and audiotapes, is generally 

performed by law enforcement personnel. Law enforcement agencies also performed scientific 

examinations and provided expert witnesses at no direct cost to the prosecution. In some cases, which 

arose from joint state and federal investigations, state law enforcement agencies contributed resources to 

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the prosecution effort. 

At the request of the Subcommittee, the Department of Justice gathered cost information concerning 21 

of 24 completed federal death penalty prosecutions in which the Attorney General had decided to seek 

the death penalty after January 1995.(31) Some of these prosecutions involved more than one defendant. 

The set of cases included some cases that were resolved by guilty pleas and some cases that went to trial. 

The Department of Justice reported an average total cost per prosecution of $365,296, but this figure 

does not include the cost of investigation or the cost of scientific testing and expert evaluations 

performed by law enforcement personnel.(32) The average cost of payments to private retained experts 

(such as psychiatrists or other experts not employed by a government agency) was $30,269 per 

prosecution. 

6. Effect of the Authorization Process. Another obligation unique to federal capital cases is advocacy 

on behalf of the client in the Justice Department death penalty authorization process. In January 1995 the 

Department promulgated a formal "protocol" describing the manner in which the Attorney General 

would review federal death penalty cases to determine whether to file a notice of an intention to seek the 

death penalty.(33) Initially, the local United States Attorney reviews the case and makes a non-binding 

recommendation to the Justice Department about whether the death penalty should be sought. Generally, 

the Attorney General has followed recommendations against seeking the death penalty, but has 

overriden such recommendations in at least two cases. All cases are reviewed by a committee of senior 

Department of Justice officials, who submit their views to the Attorney General, who then makes the 

final decision. The Death Penalty Review Committee offers defense counsel the opportunity to present 

information in writing and in a face-to-face meeting in Washington, D.C.(34)

The Department of Justice authorization process has two important implications for the cost of defense 

representation in federal capital cases. First, because any case involving an offense punishable by death 

remains a potential death penalty case until a final decision is made by the Attorney General, a longer 

authorization process increases the length of time that the defendant remains statutorily entitled to at 

least two lawyers who are compensated at a higher hourly rate. (See Section C.5, infra.) A number of 

judges reported "riding herd" on the authorization process by requiring reports from the prosecution or 

setting deadlines to expedite a final decision. All other things being equal, including the number of 

capital prosecutions ultimately approved, a shorter authorization review process would mean lower 

defense costs. 

The second cost implication of the authorization process is that it creates another forum in which 

defense counsel must advocate on behalf of the client facing a possible death sentence.(35) One of 

defense counsel's most important functions is to present information first to the local United States 

Attorney and then to the Justice Department that would justify a lesser sentence. Effective advocacy 

requires counsel to explore all of the issues that are likely to enter into the Attorney General's decision 

whether to authorize a federal death penalty prosecution, including the nature and strength of the federal 

interest, the evidence of guilt, and the aggravating and mitigating factors. Although the written and oral 

presentations made to the Death Penalty Review Committee are not as detailed or comprehensive as a 

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penalty phase presentation to a jury, counsel must conduct a wide-ranging preliminary investigation of 

facts relevant to sentencing before the Justice Department makes the decision whether to file a notice 

seeking the death penalty, if it is to have an effect on the authorization process. 

It was impossible to quantify the effect of defense participation on the death penalty review process in 

terms of outcome and cost. Department of Justice officials said they view the participation by defense 

counsel as valuable, and that they encourage oral and written presentations. Defense lawyers offered 

divergent opinions about the value of participating in the central Department of Justice review, but the 

majority made presentations and would do so in future cases. 

Because development of mitigating information early in the case may convince the prosecution that the 

death penalty should not be authorized, delaying preparation for the penalty phase is likely to increase 

the number of cases authorized, and therefore increase total costs. In a small number of instances, judges 

were reluctant to approve expenditures related to the penalty phase until an authorization decision was 

made. However, if the result of such a decision is that cases are authorized which should not be, this 

approach may cost more money than it saves, for cases that are never authorized cost much less than 

cases that are authorized, even if a guilty plea to a sentence less than death eventually is negotiated. This 

is illustrated by a comparison of the average total cost of cases in which the prosecution declines to seek 

the death penalty in the first instance ($55,772), as compared to the average total cost of cases in which 

the prosecution grants authorization, and then withdraws it ($145,806), and the average total cost of 

cases ending in guilty pleas ($192,333). (See also Recommendation 5, "The Death Penalty Authorization 

Process," in Part II of this report.) 

7. Importance of Experts and their Cost. Another factor affecting the cost and complexity of capital 

cases is the importance of expert testimony in both the guilt and penalty phases. Payments to experts are 

a substantial component of defense costs in federal death penalty cases. Coopers & Lybrand found that 

about 19% of payments for representation in federal capital cases for FY 1997 went to services other 

than counsel: primarily experts and investigators.(36) This figure may understate the total spending on 

these services, because some of these costs are included as reimbursable expenses on attorney vouchers, 

rather than in separate vouchers submitted by the expert or investigator. 

As with attorney compensation, there were significant differences between cases in which the Attorney 

General authorized seeking the death penalty, and those in which the death penalty was not authorized. 

(See Chart C-10.) The average amount spent on non-attorney compensation in cases in which 

authorization was denied was $10,094, as compared with $51,889 in cases in which authorization to 

seek the death penalty was granted. 

Average Amount of Non-Attorney Compensation 

in Capital and Non-Capital Homicide Cases

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Case Type Avg. Amount of 

Non-Attorney 

Comp.

Avg. Total Cost 

of Representation 

(Attorney and 

Non-Attorney)

Non-Capital Homicides $ 1,515 $ 9,159

Capital Auth. Denied $10,094 $ 55,773

Auth. Granted $51,889 $218,113

Capital Trial $53,143 $269,139

Plea $51,028 $192,333

Drug Cases $52,218 $244,186

In general, both the prosecution and the defense rely more extensively on experts in death penalty cases 

than in other federal criminal cases. Although prosecution forensic science experts typically are salaried 

employees of law enforcement agencies, the defense generally must hire experts who charge an hourly 

rate for their services. In the guilt phase, the prosecution is likely to call experts to testify about scientific 

analyses, such as DNA profiling, ballistics comparisons, or hair, fiber, or metallurgical evidence that 

may connect the defendant to a crime. Other types of experts common in large drug conspiracy cases 

include experts in the interpretation or authentication of audiotapes, and experts in the structure of drug 

organizations. To assure the reliability of this evidence and the manner in which it is presented to the 

jury, defense lawyers must consult with experts in these fields as well. 

The defense depends on experts to develop information relevant to sentencing, even before the 

prosecution makes a final decision about whether to seek the death penalty. 

"Because the first job of the defense is to convince the Department of Justice not to certify the case as a 

capital case, mitigation expenses, including the use of increasingly specialized experts, are increasing 

and are occurring early in the process."(37) Both the prosecution and the defense also typically hire 

experts to evaluate the defendant's mental condition in order to develop evidence related to culpability 

and future dangerousness relevant to the penalty phase. (See Charts C-11 and C-12, comparing expert 

and investigative costs in federal death penalty cases and non-capital federal homicide cases.) 

Two important categories of expert services frequently used in federal death penalty cases but not in noncapital federal criminal cases are mitigation specialists and jury consultants. Mitigation specialists 

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typically have graduate degrees, such as a Ph.D. or masters degree in social work, and have extensive 

training and experience in the defense of capital cases. They are generally hired to coordinate an 

investigation of the defendant's life history, identify issues requiring evaluation by psychologists, 

psychiatrists or other medical professionals, and assist attorneys in locating experts and providing 

documentary materials for them to review. Although most often they assist counsel in assembling and 

interpreting the information needed in the penalty phase of a capital case, in some cases mitigation 

specialists are also called to testify about their findings. 

Without exception, the lawyers interviewed by the Subcommittee stressed the importance of a mitigation 

specialist to high quality investigation and preparation of the penalty phase. Judges generally agreed 

with the importance of a thorough penalty phase investigation, even when they were unconvinced about 

the persuasiveness of particular mitigating evidence offered on behalf of an individual defendant. The 

work performed by mitigation specialists is work which otherwise would have to be done by a lawyer, 

rather than an investigator or a paralegal. Because the hourly rates approved for mitigation specialists 

are substantially lower than those authorized for attorneys,(38) the appointment of a mitigation specialist 

or penalty phase investigator generally produces a substantial reduction in the overall costs of 

representation. 

Jury consultants provide a range of services in federal death penalty cases. They assist in drafting 

questionnaires for prospective jurors to aid in the jury selection process. The use of questionnaires has 

become standard in federal capital cases as a way to streamline and expedite the process of jury 

selection. In addition, in some cases jury consultants are retained to organize and interpret the results of 

jury questionnaires, advise attorneys about follow-up questions to be asked during the in court voir dire, 

and to advise the attorneys about whether or not to strike a particular juror. Jury consultants are routinely 

retained in high stakes civil litigation, and have been engaged by the prosecution in federal death penalty 

cases. Most of the attorneys interviewed by the Subcommittee were emphatic about the value of jury 

consultants, and regarded the availability of a jury expert as a top priority. However, some lawyers were 

willing to forego a jury consultant in order to assure judicial approval of other needed services. Judges 

generally indicated greater willingness to approve jury consultants when the prosecution retained a jury 

consultant than when the prosecution did not. (See also Recommendation 7, "Experts," in Part II of this 

report.) 

C. Factors Affecting the Availability, Cost and Quality of Counsel.

1. Importance of "Learned" Counsel. Since the first Judiciary Act in 1789, federal law has required 

the appointment of "learned" counsel in a capital case. Currently, 18 U.S.C. § 3005 explicitly requires 

the appointment of two lawyers, at least one of whom is learned in the law related to capital punishment. 

An American Bar Association study several years ago summarized the special demands on counsel in a 

capital case: 

Counsel must not only be able to deal with the most serious crime--homicide-- in the most 

difficult circumstances, but must also be thoroughly knowledgeable about a complex body 

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of constitutional law and unusual procedures that do not apply in other criminal cases. 

Bifurcated capital cases involve two trials with two different sets of issues. Investigation 

must often be conducted in several states, and, in some cases, in foreign countries. And 

penalty phase preparation requires extensive and generally unparalleled investigation into 

personal and family history.(39)

In interviews, judges and lawyers attested to the importance of the statutory "learned counsel" 

requirement. A number of judges, particularly those with experience reviewing state death penalty trials 

in federal habeas corpus proceedings underscored the importance of "doing it right the first time," i.e., 

minimizing time-consuming post-conviction proceedings by assuring high quality representation in 

federal death penalty cases at the trial level.(40) Similarly, a former Florida Attorney General testified 

before an American Bar Association Task Force studying representation in state death penalty cases that, 

"[b]eyond peradventure, better representation at trial and on appeal will benefit all concerned."(41)

Federal death penalty cases require knowledge of the extensive and complex body of law governing 

capital punishment and the intricacies of federal criminal practice and procedure. Neither one alone is 

sufficient to assure high quality representation. Lawyers and judges recounted cases in which seasoned 

federal criminal lawyers who lacked death penalty experience missed important issues. For example, one 

judge described a situation in which experienced and highly esteemed felony trial lawyers who had no 

capital experience simply did not know how to pursue the mitigation investigation required by the case. 

After many months had been invested, the court appointed an experienced capital litigator from outside 

the jurisdiction as "learned counsel." A series of mental health tests arranged by this attorney resulted in 

a decision by the Justice Department to withdraw the request for the death penalty on the eve of trial. 

The judge credited the "learned counsel" with obtaining that result, which the judge believed could have 

been achieved much earlier. On the other hand, differences between state and federal practice place a 

lawyer who may have prior capital experience but no prior federal criminal trial experience at a 

disadvantage. The federal sentencing guidelines, speedy trial act, rules of evidence and procedure, and 

the specifics of the federal death penalty law play an important role in representation. Also, because 

federal death penalty cases frequently involve complex drug conspiracies, familiarity with this 

specialized area of practice is often desirable. When lawyers with experience in both the federal trial and 

death penalty arenas cannot be found, some courts have attempted to combine strengths by appointing a 

team which includes an experienced federal criminal practitioner and an experienced state court capital 

litigator. 

Judges praised the quality of the representation provided by the lawyers they appointed as higher than 

the ordinary standard of practice in federal criminal cases. Judges familiar with state death penalty trials 

found that the quality of representation in federal death penalty cases was superior to the norm in state 

death penalty cases as well. In a few cases, judges expressed disappointment with the quality of 

representation, but in these instances they generally had replaced the lawyers whose performance they 

considered deficient. 

After having handled their first federal death penalty case, a number of learned counsel have accepted 

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subsequent appointments to such cases. This is a significant trend and one which the judiciary should 

seek to perpetuate. Judges and lawyers agreed that counsel with federal death penalty experience were 

more efficient than lawyers without such experience. The availability of these highly skillful and 

knowledgeable lawyers has been an important resource, particularly in districts that lack attorneys with 

death penalty trial experience. (See Section C.4.b, infra.) In contrast, in federal capital habeas corpus 

cases, very few lawyers have been willing to accept repeat appointments, so that the learning curve 

remains steep (and therefore time-consuming and costly) in almost every new case. The continued 

willingness of these learned counsel to accept appointments in federal death penalty cases is an 

important element of any strategy for managing the costs of representation while maintaining quality.(42)

(See also Recommendation 1, "Qualifications for Appointment," in Part II of this report.) 

2. Federal Death Penalty Resource Counsel Project. The federal defender program has no systemic 

counterpart to the Criminal Division of the Department of Justice, which centrally supports the work of 

federal prosecutors nationwide. While a U.S. Attorney's Office bringing a federal death penalty 

prosecution can obtain training, advice, legal research and brief-writing assistance, sample pleadings and 

supplemental staffing from the Justice Department,(43) the private panel attorneys defending federal 

death penalty cases are, for the most part, sole practitioners or partners in small law firms comprised of 

fewer than half a dozen attorneys. Furthermore, although federal defender organizations are centrally 

funded, the representation they provide is entirely de-centralized. In order to improve the quality of 

representation and the cost effectiveness of defense services, in FY 1992 the judiciary established the 

Federal Death Penalty Resource Counsel Project (RCP). The RCP currently consists of three 

experienced capital litigators who support the work of appointed counsel and provide advice to the 

Administrative Office of the U.S. Courts on a part-time basis.(44) The Resource Counsel Project has 

become essential to the delivery of high quality, cost-effective representation in federal death penalty 

cases. 

Dividing the work regionally, Resource Counsel are available to provide assistance to defense counsel in 

every federal death penalty case. Judges, defense counsel, Administrative Office staff and Department of 

Justice death penalty policy makers praised their efforts and effectiveness. Resource Counsel's legal 

advice and pleadings have prevented lawyers from having to "reinvent the wheel" in every case. They 

have provided substantial assistance to courts and counsel in developing and implementing case 

budgeting procedures. They have assisted the Administrative Office and federal public defenders in 

discharging their statutory responsibilities to recommend qualified counsel for appointment. They have 

provided training opportunities for counsel. In addition, by monitoring prosecution decisions and 

following developments in this important area, they have provided critical statistical information and 

policy advice to the Administrative Office. (See also Recommendations 6, 8 and 9 ("Federal Death 

Penalty Resource Counsel," "Training," and "Case Budgeting") in Part II of this report.) 

3. Consultation Prior to Appointment of Counsel. Since 1995, federal law has required the court, 

before appointing counsel in a federal death penalty case, to consult with the federal public defender for 

the district, or, if there is no federal public defender (or the defender has a conflict), with the 

Administrative Office of the United States Courts. This statutory requirement has generally, although 

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not universally, been honored. In a very few cases, judges have appointed counsel without formally 

consulting either the federal public defender or the Administrative Office. For the most part, judges have 

taken a case-by-case approach to seeking advice about the appointment of counsel, although in one 

district the court directed the federal public defender to provide a list of lawyers qualified to handle 

federal death penalty cases instead of consulting as each case arose. In districts not served by a federal 

public defender, judges have consulted with the Administrative Office, which generally refers the court 

to one of the three Federal Death Penalty Resource Counsel, who provide training and support to 

lawyers handling federal death penalty cases nationwide.(45) The consultation process assists judges in 

identifying qualified lawyers to appoint to federal death penalty cases. (See also Recommendation 2, 

"Consultation with Federal Defender Organizations or the Administrative Office," in Part II of this 

report.) 

4. Availability and Recruitment of Qualified Lawyers. A defendant charged with an offense 

punishable by death is entitled to two lawyers by statute. (18 U.S.C. § 3005). A judge assigned a federal 

death penalty case may appoint private lawyers compensated on an hourly basis ("panel" attorneys) or, 

in a district served by a federal defender organization,(46) the court may appoint a lawyer employed by 

the FDO together with a panel attorney.(47) For the reasons discussed below, panel attorneys have been 

appointed in the vast majority of federal death penalty cases. 

a. Federal Defender Organizations. Federal defender organizations are not currently able to provide 

representation in a large proportion of federal death penalty cases.(48) A few federal defender offices 

employ lawyers with prior death penalty experience gained in state court, but most do not. Indeed, 

lawyers in federal defender offices may also lack significant experience trying homicide cases, because 

few such cases are brought in the federal courts. Even federal defenders with extensive federal criminal 

experience feel themselves unqualified to provide representation without the participation of a "learned" 

counsel with capital case experience. Trial experience in non-capital cases is no substitute for the 

training required to prepare for the penalty phase of a capital case and to develop an overall trial strategy 

that integrates both phases. In almost all instances in which a judge has appointed a federal defender 

organization as counsel, the FDO has been joined by a panel attorney with death penalty experience. 

Another obstacle to relying on federal defender organizations to provide representation in a larger 

proportion of federal death penalty cases is the effect of an appointment on the defender office as a 

whole. Death penalty cases consume resources: the time of experienced lawyers and supervisors, 

investigators, and support staff; and budgetary allocations for experts. Defenders reported to the 

Subcommittee that the time commitment involved in handling a death penalty case was disruptive, 

especially in districts in which it was difficult for the federal defender organization to compensate for 

the appointment in the death penalty case by reducing the number of non-capital cases assigned to the 

office. Lawyers assigned to federal death penalty cases generally transferred their existing cases to other 

attorneys and reduced or eliminated their intake of new cases. Especially in smaller offices, where the 

added caseload had to be divided among fewer lawyers, death penalty cases interfered with the office's 

ability to fulfill its obligations to other clients. 

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b. Panel Attorneys. To date, courts generally have been able to locate and recruit a sufficient number of 

qualified lawyers to meet the need for representation. In some areas of the country, particularly those 

with state death penalty statutes, a substantial number of lawyers have developed experience defending 

capital cases. Not all of these lawyers, however, are fully qualified to provide representation in federal

death penalty cases, because of unfamiliarity with important aspects of federal criminal practice. In other 

areas, especially those in which there is not a state death penalty statute, courts have been unable to 

recruit qualified lawyers from within the district, and have appointed lawyers with death penalty 

experience from other states. The Subcommittee found that judges who appointed counsel from outside 

their districts in order to meet qualification standards experienced a very high degree of satisfaction with 

the representation provided in their cases.(49) Typically, these judges had appointed one of the small (but 

growing) number of litigators who have provided representation in two or more federal death penalty 

cases. Both the appointing judges and the local counsel reported a range of resulting benefits, including 

the on-the job training of the local co-counsel.(50) (See also Recommendation 4, "Appointment of the 

Federal Defender Organization," in Part II of this report.) 

5. Adequacy of Compensation to Attract Qualified Counsel. Current federal law authorizes an 

attorney in a federal death penalty case to be paid up to $125 per hour.(51) At present, this maximum 

hourly rate appears adequate. Several years ago, the Judicial Conference reported that, "[w]hile many 

courts find the quality of panel attorneys [in non-capital cases] to be very high, serious funding 

difficulties and inadequate compensation hamper many courts in their ability to recruit and retain 

experienced attorneys as members of the CJA panel."(52) If the "real" (inflation-adjusted) hourly rate 

were to decline substantially, as it has for non-capital federal criminal representation, fulfillment of the 

judiciary's statutory and constitutional obligations to appoint qualified counsel might be jeopardized.(53)

Panel attorneys who are qualified for appointment to a federal death penalty case are generally among 

the most experienced and respected criminal practitioners. Consequently, many of them command high 

fees for retained criminal work and, in some instances, for civil litigation. Without exception, lawyers 

appointed in federal death penalty cases reported earning hourly rates from private clients that are much 

higher than (and often double) the maximum rate that may be paid for their representation in a federal 

capital case. Although the hourly rates of compensation in federal capital cases are higher than those 

paid in non-capital federal criminal cases,(54) they are quite low in comparison to hourly rates for 

lawyers generally, and to the imputed hourly cost of office overhead.(55) Most of the lawyers 

interviewed said they would not be willing to accept appointment to federal death penalty cases at the 

hourly rates which are authorized for non-capital representation. 

One of the reasons it is sometimes difficult to recruit qualified counsel for a federal death penalty case is 

that lawyers in federal death penalty cases have to decline work they would otherwise accept while the 

capital case is pending. A single death penalty case can preclude a lawyer from accepting any other 

clients for a significant period.(56) Especially in the months preceding trial, defending a death penalty 

case often consumes all of an attorney's time. A lawyer's unavailability can significantly damage the 

network of referrals and name recognition vital to sustaining a small practice. One judge in a district 

with a very active criminal defense bar found that several lawyers declined appointment to a capital case 

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because of the anticipated length of the trial and the effect the case would have on their retained practice. 

A number of lawyers recounted the detrimental effect of a single capital case on their practices. "You do 

lose business. People know you're busy and don't call," said one attorney who was interviewed. Another 

lawyer described the effect of a lengthy death penalty case involving a drug conspiracy on his practice as 

"devastating." Some lawyers also feel they lose potentially lucrative white-collar business once they 

become categorized as death-penalty lawyers. Lawyers also believe they lose future clients because of 

lack of exposure. One lawyer who had been devoting all of his professional time to a large, multidefendant case recounted running into a journalist who said he had thought the lawyer must have left 

town because he had not seen him at the state courthouse for so long. 

Another factor discouraging lawyers with active practices from accepting appointment to a federal death 

penalty case is a reluctance to become economically dependent on the timely payment of vouchers. 

Although generally lawyers did not complain about the timeliness of payments, in more than one case a 

long delay in the approval of vouchers forced lawyers to borrow money to pay office expenses. (See 

Recommendation 1(e), "Hourly Rate of Compensation for Counsel," in Part II of this report.) 

6. Number of Counsel. Since the First Judiciary Act in 1789, federal law has provided for the 

appointment of a minimum of two lawyers per defendant in a capital case. Judges have generally 

appointed two lawyers in federal death penalty cases, although there have been rare instances in which 

the court has not done so until after the prosecution has filed notice of its intention to seek the death 

penalty, effectively delaying defense preparation. In a few cases, a judge has formally appointed more 

than two lawyers. This usually has occurred because the judge was dissatisfied with one or more of the 

lawyers originally appointed, but felt the overall ability of the defense team to meet statutory time limits 

and to provide an effective defense would be better accomplished by adding a new lawyer with needed 

skills rather than by replacing the lawyer originally appointed. 

The defense team in federal capital cases may include paralegals, investigators and less experienced 

lawyers, generally billing at an hourly rate substantially below that of lead counsel. The additional 

lawyers who work on the case generally are not formally appointed, but rather are authorized by the 

court to work on limited and discrete tasks. When these assistant counsel are used effectively, total costs 

of attorney compensation are reduced, because the average hourly rate is reduced. For example, one 

appointed lawyer, who was authorized by the court to receive the statutory maximum of $125 per hour, 

hired a less experienced lawyer at $45 per hour to listen 

to thousands of hours of wiretap tapes and identify the important parts, thus achieving substantial 

savings.(57) (See Recommendation 3, "Appointment of More than Two Lawyers," in Part II of this 

report.) 

D. Efforts to Control the Cost of Representation. 

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Judges presiding over federal capital cases have been mindful of the need to closely monitor and control 

costs, and have pursued several strategies to this end. Probably the paramount concern has been to 

appoint responsible, trustworthy and experienced lawyers who will themselves exercise judgment about 

the reasonableness of costs. After closely reviewing vouchers, the judges interviewed indicated their 

satisfaction with the integrity of the lawyers they had appointed. In a very few instances, judges 

removed the lawyers who had first been appointed to the case, sometimes by a different judicial officer. 

The most common reason for removal was lack of death penalty experience evidenced in the lawyers' 

failure to identify and focus on the more promising lines of investigation, thus wasting resources. 

Judges have used a variety of techniques to control costs. Many judges, particularly those presiding over 

cases filed in the last two years, have established budgets for the cost of defense representation. In one 

complex multi-defendant case, a judge directed the clerk of court to develop a computer program to 

assist in the tracking of expenditures. Other judges recounted denying or reducing requests for experts, 

and asking counsel to determine whether a qualified expert could be found at a lower rate or to persuade 

the expert to reduce the requested fee. 

Judges also authorized the hiring of paralegals to reduce the costs of coordinating and distributing 

materials among defense counsel in multi-defendant cases. 

Interviews with lawyers also revealed a reassuring degree of restraint. A number of lawyers recounted 

decisions not to request funds for certain experts or services, and almost all of them negotiated reduced 

rates or obtained some services from experts on a pro bono basis, recognizing that by reducing costs 

whenever possible, it would be easier to obtain judicial approval for other needed services. In multidefendant cases, lawyers, both on their own and with judicial prompting, coordinated discovery and 

motions practice, thereby reducing the 

potential for duplicative work. (See Recommendations 9 and 10 ("Case Budgeting" and "Case 

Management") in Part II of this report.) 

CONCLUSION

The recommendations set forth in Part II of this report should be adopted by the Judicial Conference of 

the United States and implemented by the judiciary. 

II. RECOMMENDATIONS AND COMMENTARY

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1. Qualifications for Appointment. 

a. Quality of Counsel. Courts should ensure that all attorneys appointed in federal death penalty cases 

are well qualified, by virtue of their prior defense experience, training and commitment, to serve as 

counsel in this highly specialized and demanding type of litigation. High quality legal representation is 

essential to assure fair and final verdicts, as well as cost-effective case management. 

b. Qualifications of Counsel. As required by statute, at the outset of every capital case, courts should 

appoint two counsel, at least one of whom is experienced in and knowledgeable about the defense of 

death penalty cases. Ordinarily, "learned counsel" should have distinguished prior experience in the trial, 

appeal, or post-conviction review of federal death penalty cases, or distinguished prior experience in 

state death penalty trials, appeals, or post-conviction review that, in combination with co-counsel, will 

assure high quality representation. 

c. Special Considerations in the Appointment of Counsel on Appeal. Ordinarily, the attorneys appointed 

to represent a death-sentenced federal appellant should include at least one attorney who did not 

represent the appellant at trial. In appointing appellate counsel, courts should, among other relevant 

factors, consider: 

i. the attorney's experience in federal criminal appeals and capital appeals; 

ii. the general qualifications identified in paragraph 1(a), above; and 

iii. the attorney's willingness, unless relieved, to serve as counsel in any post-conviction 

proceedings that may follow the appeal. 

d. Special Considerations in the Appointment of Counsel in Post-Conviction Proceedings. In appointing 

post-conviction counsel in a case where the defendant is sentenced to death, courts should consider the 

attorney's experience in federal post-conviction proceedings and in capital post-conviction proceedings, 

as well as the general qualifications set forth in paragraph 1(a). 

e. Hourly Rate of Compensation for Counsel. The rate of compensation for counsel in a capital case 

should be maintained at a level sufficient to assure the appointment of attorneys who are appropriately 

qualified to undertake such representation. 

Commentary

As Recommendation 1(a) indicates, the first responsibility of the court in a federal death penalty case is 

to appoint well-trained, experienced and dedicated defense counsel. Federal law requires the 

appointment of two counsel to represent a defendant in a federal death penalty case, of whom at least 

one must be "learned in the law applicable to capital cases." 18 U.S.C. § 3005. Additional requirements 

relating to counsel's experience are codified at 

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21 U.S.C. § 848(q)(5)-(7). Legislatures, courts, bar associations, and other groups that have considered 

the qualifications necessary for effective representation in death penalty proceedings have consistently 

demanded a higher degree of training and experience than that required for other representations. Such 

heightened standards are required to ensure that representation is both cost-effective and commensurate 

with the complexity and high stakes of the litigation. The standards listed in Recommendations 1(b) - (d) 

are designed to assist courts in identifying the specific types of prior experience which have been 

deemed most valuable in the experience of the federal courts thus far. They emphasize the importance of 

bringing to bear both death penalty expertise and experience in the practice of criminal defense in the 

federal courts. 

Recommendation 1(b) calls for the appointment of specially qualified counsel "at the outset" of a case, 

because virtually all aspects of the defense of a federal death penalty case, beginning with decisions 

made at the earliest stages of the litigation, are affected by the complexities of the penalty phase. Early 

appointment of "learned counsel" is also necessitated by the formal "authorization process" adopted by 

the Department of Justice to guide the Attorney General's decision-making regarding whether to seek 

imposition of a death sentence. (See United States Attorney's Manual § 9-10.000.) Integral to the 

authorization process is a presentation to Justice Department officials of the factors which would justify 

not seeking a death sentence against the defendant. A "mitigation investigation" therefore must be 

undertaken at the commencement of the representation. Since an early decision not to seek death is the 

least costly way to resolve a potential capital charge, a prompt preliminary mitigation investigation 

leading to effective advocacy with the Justice Department is critical both to a defendant's interests and to 

sound fiscal management of public funds. 

Trial courts should appoint counsel with "distinguished prior experience" (Recommendation 1(b)) in 

death penalty trials or appeals, even if meeting this standard requires appointing a lawyer from outside 

the district in which a matter arises. The preparation of a death penalty case for trial requires knowledge, 

skills and abilities which are absent in even the most seasoned felony trial lawyers, if they lack capital 

experience. An attorney knowledgeable about the nature of capital pretrial litigation, the scope of a 

mitigation investigation and the impact of the sentencing process on the guilt phase is indispensable and 

generally produces cost efficiencies. The costs of travel and other expenses associated with "importing" 

counsel from another jurisdiction can be minimized with careful planning by counsel and the court. With 

appropriate forethought, investigations, client counseling, court appearances and other obligations can 

be coordinated to maximize the efficient use of counsel's time and ensure cost-effectiveness. 

Recommendations 1(c) and (d), with respect to the appointment of appellate and post-conviction 

counsel, respond to the requirement of 21 U.S.C. § 848(q) that representation in death penalty cases 

continue through post-conviction proceedings. Because trial counsel ordinarily will be precluded by a 

conflict of interest from representing the defendant in a post-conviction proceeding under 28 U.S.C. § 

2255, continuity of representation and the efficient use of resources generally will best be achieved by 

appointing, at the appellate stage, at least one new lawyer who may continue to provide representation in 

any post-conviction proceedings. This should promote continuing representation by a lawyer who is 

already familiar with the record. In determining which, if any, of a death-sentenced defendant's prior 

counsel to appoint as post-conviction or appellate counsel, courts should consult with those counsel, the 

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district's federal defender organization and/or the Administrative Office (See Recommendation 2). 

Recommendation 1(e) reflects the fact that appropriate rates of compensation are essential to 

maintaining the quality of representation required in a federal capital case. The time demands of these 

cases are such that a single federal death penalty representation is likely to become, for a substantial 

period of time, counsel's exclusive or nearly exclusive professional commitment. It is therefore 

necessary that the hourly rate of compensation be fair in relation to the costs associated with maintaining 

a criminal practice. Federal statute currently provides for an hourly rate of up to $125 (21 U.S.C. § 848 

(q)(10)(A)), which the Subcommittee finds to be adequate at the present time. However, this figure 

should be reviewed at least every three years, to ensure that it remains sufficient in light of inflation and 

other factors. (See 18 U.S.C. § 3006A(d)(1).) 

2. Consultation with Federal Defender Organizations or the Administrative Office. 

a. Notification of Statutory Obligation to Consult. The Administrative Office of the U.S. Courts 

(Administrative Office) and federal defender organizations should take appropriate action to ensure that 

their availability to provide statutorily mandated consultation regarding the appointment of counsel in 

every federal death penalty case is well known to the courts. (See 18 U.S.C. § 3005.) 

b. Consultation by Courts in Selecting Counsel. In each case involving an offense punishable by death, 

courts should, as required by 18 U.S.C. § 3005, consider the recommendation of the district's Federal 

Public Defender (FPD) (unless the defender organization has a conflict) about the lawyers to be 

appointed. In districts not served by a Federal Public Defender Organization, 18 U.S.C. § 3005 requires 

consultation with the Administrative Office. Although not required to do so by statute, courts served by 

a Community Defender Organization should seek the advice of that office. 

c. Consultation by Federal Defender Organizations and the Administrative Office in Recommending 

Counsel. In discharging their responsibility to recommend defense counsel, FDOs and the 

Administrative Office should consult with Federal Death Penalty Resource Counsel in order to identify 

attorneys who are well qualified, by virtue of their prior defense experience, training and commitment, 

to serve as lead and second counsel. 

Commentary

Since 1994, courts have been required to consider the recommendation of their federal public defender 

organization(58) or the Administrative Office regarding the appointment of counsel in each federal death 

penalty case. The Administrative Office has notified courts of this relatively recent innovation, and it has 

been largely followed and yielded results satisfying to judges, defense counsel and prosecutors. In a 

small number of cases, however, the Subcommittee found that courts had ignored or been unaware of 

the consultation requirement. For that reason, Recommendation 2(a) suggests that the Administrative 

Office take further steps to ensure that all courts are familiar with their obligations in this area and with 

the nature of the assistance which will be provided to them upon their request (see Commentary 

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accompanying Recommendation 2(c)). 

Recommendation 2(b) reflects the Subcommittee's view that recommendations concerning appointment 

of counsel are best obtained on an individualized, case-by-case basis. The relative infrequency of federal 

death penalty appointments, and the typically swift response which any court requesting a 

recommendation can expect, makes lists or "panels" of attorneys both unnecessary and, in some 

respects, impractical. Currently, within approximately 24 hours of receipt of a request, the 

Administrative Office or federal defender provides the court with the names of attorneys who not only 

are qualified to serve as counsel but who also have been contacted and indicated their willingness to 

serve in the particular case.(59) These individualized recommendations help to ensure that counsel are 

well-suited to the demands of a particular case and compatible with one another and the defendant. Casespecific consultation is also required by existing Judicial Conference policy (see paragraph 6.01B of the 

Guidelines for the Criminal Justice Act (CJA Guidelines), Volume VII, Guide to Judiciary Policies and 

Procedures, explaining the 18 U.S.C. § 3005 consultation requirement and suggesting that in developing 

a recommendation, consideration be given to "the facts and circumstances of the case.") 

Recommendation 2(b) also suggests that in districts served by a Community Defender Organization 

(rather than a Federal Public Defender Organization) courts extend the statutory requirement and seek 

the recommendation of the head of that organization about appointment of counsel in federal death 

penalty cases. The omission of specific reference to Community Defender Organizations in the statute is 

not explained in any legislative history, and consultation with a Community Defender Organization is 

likely to be as valuable as consultation with a Federal Public Defender Organization. 

To assist federal defender organizations and the Administrative Office in discharging their responsibility 

to recommend counsel, the judiciary has contracted with three Federal Death Penalty Resource Counsel, 

experienced capital litigators whose work is described in Section C.2 of Part I of this report. 

Recommendation 2(c) recognizes the value of the assistance provided by Resource Counsel and urges 

federal defenders and the Administrative Office to continue to work closely with them. Resource 

Counsel are knowledgeable about and maintain effective communication with defense counsel 

nationwide. Their ability promptly to match attorneys with cases is of great value to the judiciary. 

3. Appointment of More Than Two Lawyers. 

Number of Counsel. Courts should not appoint more than two lawyers to provide 

representation to a defendant in a federal death penalty case unless exceptional 

circumstances and good cause are shown. Appointed counsel may, however, with prior 

court authorization, use the services of attorneys who work in association with them, 

provided that the employment of such additional counsel (at a reduced hourly rate) 

diminishes the total cost of representation or is required to meet time limits. 

Commentary

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The norm in federal death penalty cases is the appointment of two counsel per defendant. More than two 

attorneys should be appointed only in exceptional circumstances. Courts contemplating the appointment 

of a third counsel might consider contacting the Administrative Office for information and advice about 

whether circumstances warrant such appointment. Notwithstanding this suggested limit on the number 

of attorneys charged with responsibility for the defense in its entirety, courts are encouraged to permit 

appointed counsel to employ additional attorneys to perform more limited services where to do so would 

be cost-effective or otherwise enhance the effective use of resources. For example, in many federal death 

penalty cases the prosecution provides to defense counsel an extensive amount of discovery material 

which must be reviewed for relevance and organized for use by the defense. Providing legal assistance 

to appointed counsel at a lower hourly rate may prove economical or it may be a necessity in light of 

court deadlines. This is consistent with existing Judicial Conference policy with respect to all Criminal 

Justice Act representations (see CJA Guideline 2.11A), and is emphasized here because of its cost 

containment potential in capital litigation. 

4. Appointment of the Federal Defender Organization (FDO). 

a. FDO as Lead Counsel. Courts should consider appointing the district's FDO as lead counsel in a 

federal death penalty case only if the following conditions are present: 

i. the FDO has one or more lawyers with experience in the trial and/or appeal of capital 

cases who are qualified to serve as "learned counsel"; and 

ii. the FDO has sufficient resources so that workload can be adjusted without unduly 

disrupting the operation of the office, and the lawyer(s) assigned to the death penalty case 

can devote adequate time to its defense, recognizing that the case may require all of their 

available time; and 

iii. the FDO has or is likely to obtain sufficient funds to provide for the expert, 

investigative and other services reasonably believed to be necessary for the defense of the 

death penalty case. 

b. FDO as Second Counsel. Courts should consider appointing the district's FDO as second counsel in a 

federal death penalty case only if the following conditions are present: 

i. the FDO has sufficient resources so that workload can be adjusted without unduly 

disrupting the operation of the office, and the lawyer(s) assigned to the death penalty case 

can devote adequate time to its defense, recognizing that the case may require all of their 

available time; and 

ii. the FDO has or is likely to obtain sufficient funds to provide for the expert, 

investigative and other services reasonably believed to be necessary for the defense of the 

death penalty case. 

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Commentary

Federal defender organizations have provided representation in only a small number of the federal death 

penalty cases filed to date. In many cases, representation by defender organizations has been precluded 

because of conflicts of interest which arise because the organization has represented either another 

defendant or a witness in the case. Even where the defender organization is not disqualified by a 

conflict, however, there are good reasons to proceed with caution in making appointments in this area. A 

decision to appoint a defender organization either as lead or as second counsel in a capital case should 

be made only after consideration of the factors identified in this Recommendation and consultation 

between the court and the federal defender. 

Recommendation 4(a) is intended to inform courts, which are accustomed to relying on federal 

defenders to undertake the most difficult representations, that few federal defender attorneys currently 

possess appropriate qualifications and experience to act as lead counsel in a federal death penalty case. 

Because violent felony offenses, particularly homicides, rarely are prosecuted in the federal courts, there 

is little opportunity for federal court practitioners to learn even the fundamentals relevant to the guilt 

phase defense of a federal death penalty case. Unless they gained such experience in state court before 

joining the defender organization, most federal defender attorneys have little to no experience defending 

a homicide case; of those who did bring with them such state court background, few have capital 

experience. 

Notwithstanding these considerations, however, there is much to be gained from the involvement of a 

defender organization in the defense of a federal capital case. Recommendation 4(b) suggests pairing a 

defender organization as co-counsel with an experienced capital litigator, an approach which has 

successfully been employed in some cases. In these cases, the defender organization has benefitted from 

the expertise of the "learned counsel" and gained valuable capital litigation experience as well. At the 

same time, the "learned counsel" has benefitted from the institutional resources and local court expertise 

of the defender staff. Whether as lead or second counsel(60), a federal defender organization should not 

be required to undertake more than one federal death penalty representation at a time unless the head of 

the organization believes such an arrangement is appropriate. Recommendations 4(a) and (b) 

acknowledge that capital cases inevitably and seriously disrupt the normal functioning of an office. To 

undertake too much death penalty litigation would seriously threaten the effective performance of a 

defender organization's overriding responsibility to provide representation to a substantial number of 

financially eligible criminal defendants in its district each year. 

5. The Death Penalty Authorization Process. 

a. Streamlining the Authorization Process. The Department of Justice should consider adopting a "fast 

track" review of cases involving death-eligible defendants where there is a high probability that the 

death penalty will not be sought. 

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b. Court Monitoring of the Authorization Process. Courts should exercise their supervisory powers to 

ensure that the death penalty authorization process proceeds expeditiously. 

Commentary

A decision not to seek the death penalty against a defendant has large and immediate cost-saving 

consequences. The sooner that decision is made, the larger the savings. Since the death penalty 

ultimately is sought against only a small number of the defendants charged with death-punishable 

offenses, the process for identifying those defendants should be as expeditious as possible in order to 

preserve funding and minimize the unnecessary expenditure of resources. Recommendation 5(a) calls 

upon the Department of Justice to increase the speed with which it makes decisions not to authorize 

seeking the death penalty. Recommendation 5(b) urges judges to oversee the authorization process by 

monitoring the progress of the decisionmaking and imposing reasonable deadlines on the prosecution in 

this regard. Courts should also ensure that the prosecution's timetables allow for meaningful advocacy 

by counsel for the defendant. 

6. Federal Death Penalty Resource Counsel. 

a. Information from Resource Counsel. In all federal death penalty cases, defense counsel should obtain 

the services of Federal Death Penalty Resource Counsel in order to obtain the benefit of model pleadings 

and other information that will save time, conserve resources and enhance representation. The judiciary 

should allocate resources sufficient to permit the full value of these services to be provided in every 

case. 

b. Technology and Information Sharing. The Administrative Office should explore the use of computerbased technology to facilitate the efficient and cost-effective sharing of information between Resource 

Counsel and defense counsel in federal death penalty cases. 

Commentary

Recommendation 6(a) urges the judiciary and counsel to maximize the benefits of the Federal Death 

Penalty Resource Counsel Project (described in Section C.2 of Part I of this report), which has become 

essential to the delivery of high quality, cost-effective representation in federal death penalty cases, and 

to ensure the Project's continued effectiveness. 

Recommendation 6(b) recognizes that recent innovations in computer technology are making it 

increasingly easy and inexpensive for individuals who are geographically dispersed to share information. 

The Administrative Office should explore the feasibility and cost-effectiveness of using computer and 

other technology to enhance the delivery of support to appointed counsel in federal death penalty cases. 

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7. Experts. 

a. Salaried Positions for Penalty Phase Investigators. The federal defender program should consider 

establishing salaried positions within FDOs for persons trained to gather and analyze information 

relevant to the penalty phase of a capital case. FDOs should explore the possibility that, in addition to 

providing services in death penalty cases to which their FDO is appointed, it might be feasible for these 

investigators to render assistance to panel attorneys and to other FDOs. 

b. Negotiating Reduced Rates. Counsel should seek to contain costs by negotiating reduced hourly rates 

and/or total fees with experts and other service providers. 

c. Directory of Experts. A directory of experts willing to provide the assistance most frequently needed 

in federal death penalty cases, and their hourly rates of billing, should be developed and made available 

to counsel. 

Commentary

Penalty phase investigators, or "mitigation specialists," as they have come to be called, are individuals 

trained and experienced in the development and presentation of evidence for the penalty phase of a 

capital case. Their work is part of the existing "standard of care" in a federal death penalty case. (See 

Section B.7 of Part I of this Report.) Because the hourly rates charged by mitigation specialists are lower 

than those authorized for appointed counsel, employment of a mitigation specialist is likely to be a costeffective approach to developing the penalty phase defense. 

Mitigation specialists are, however, in short supply. In most of the federal death penalty cases the 

Subcommittee examined, penalty phase investigators were not available locally. Courts thus were 

required to pay for the costs of travel and related expenses in addition to paying the mitigation 

specialist's hourly rates. Recommendation 7(a) suggests ameliorating this problem by employing and 

training persons for this work in federal defender organizations. Because of the cost containment 

potential, the feasibility of having these salaried employees work not only on cases to which their federal 

defender organization is appointed, but on others within their region, should be explored as well. 

Recommendation 7(b) encourages counsel to negotiate a reduced hourly rate for expert services 

whenever possible. Private experts must be employed in death penalty cases, but the cost of their 

services can and should be contained. When asked to provide services for the defense of an indigent 

criminal defendant, many experts are willing to accept fees lower than their customary hourly rates for 

private clients. In addition, courts and counsel should agree in advance to a total amount which may be 

expended for a particular expert. If it appears that costs will exceed the agreed-upon amount, counsel 

should return to the court for prior authorization to secure them. If travel costs are to be incurred, 

government rates should be obtained. 

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8. Training. 

Federal Death Penalty Training Programs. The Administrative Office should continue to offer and 

expand training programs designed specifically for defense counsel in federal death penalty cases. 

Commentary

All of the defense counsel interviewed by the Subcommittee stressed the importance of participating in 

specialized death penalty training programs. Although the individuals appointed as "learned counsel" 

comprised a highly experienced group of lawyers, they nevertheless continued to attend training 

programs to update and refine their skills and knowledge, and emphasized that they availed themselves 

of such opportunities whenever possible. There are, however, very few training programs anywhere in 

the country specializing in the defense of death penalty cases, and there is only one -- an annual one-day 

program organized by the Federal Death Penalty Resource Counsel Project and funded by the 

Administrative Office -- focusing entirely on federal death penalty representation. Almost all of the 

defense counsel the Subcommittee interviewed had attended this program and identified it as a 

significant resource. With the case law relatively undeveloped and so many issues being litigated for the 

first time, the opportunity for counsel to benefit from the research of others and to share information and 

ideas was considered especially important and cost-effective. The Administrative Office and Federal 

Death Penalty Resource Counsel should ensure that training opportunities continue to meet the needs of 

appointed counsel in this area. 

9. Case Budgeting.

a. Consultation with Prosecution. Upon learning that a defendant is charged with an offense punishable 

by death, courts should promptly consult with the prosecution to determine the likelihood that the death 

penalty will be sought in the case and to find out when that decision will be made. 

b. Prior to Death Penalty Authorization. Ordinarily, the court should require defense counsel to submit a 

litigation budget encompassing all services (counsel, expert, investigative and other) likely to be 

required through the time that the Department of Justice(DOJ) determines whether or not to authorize 

the death penalty. 

c. After Death Penalty Authorization. As soon as practicable after the death penalty has been authorized 

by DOJ, defense counsel should be required to submit a further budget for services likely to be needed 

through the trial of the guilt and penalty phases of the case. In its discretion, the court may determine 

that defense counsel should prepare budgets for shorter intervals of time. 

d. Advice from Administrative Office and Resource Counsel. In preparing and reviewing case budgets, 

defense counsel and the courts should seek advice from 

the Administrative Office and Federal Death Penalty Resource Counsel, as may be appropriate. 

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e. Confidentiality of Case Budgets. Case budgets should be submitted ex parte and should be filed and 

maintained under seal. 

f. Modification of Approved Budget. An approved budget should guide counsel's use of time and 

resources by indicating the services for which compensation is authorized. Case budgets should be reevaluated when justified by changed or unexpected circumstances, and should be modified by the court 

where good cause is shown. 

g. Payment of Interim Vouchers. Courts should require counsel to submit vouchers on a monthly basis, 

and should promptly review, certify and process those vouchers for payment. 

h. Budgets In Excess of $250,000. If the total amount proposed by defense counsel to be budgeted for a 

case exceeds $250,000, the court should, prior to approval, submit such budget for review and 

recommendation to the Administrative Office. 

i. Death Penalty Not Authorized. As soon as practicable after DOJ declines to authorize the death 

penalty, the court should review the number of appointed counsel and the hourly rate of compensation 

needed for the duration of the proceeding pursuant to CJA Guideline 6.02.B(2). 

j. Judicial Conference Guidelines. The Judicial Conference should promulgate guidelines on case 

budgeting for use by the courts and counsel. 

k. Judicial Training for Death Penalty Cases. The Federal Judicial Center should work in cooperation 

with the Administrative Office to provide training for judges in the management of federal death penalty 

cases and, in particular, in the review of case budgets. 

Commentary

The Judicial Conference has endorsed the use of case budgets to manage the cost of capital habeas 

corpus cases. (CJA Guideline 6.02.F.) Case budgets for federal death penalty cases are designed to serve 

purposes similar to those accomplished by case budgets for capital habeas corpus cases. A complete case 

budget will require the lawyer to incorporate cost considerations into litigation planning and will 

encourage the use of less expensive means to achieve the desired end. For example, a budget might 

request appointment of an expert to perform a task that could be accomplished by a lawyer, justifying 

the request by showing that the expert's work will produce a corresponding reduction in the attorney 

hours required. 

Submission and review of a budget will also assist the court in monitoring the overall cost of 

representation in the case, and determining the reasonableness of costs. Case budgets are increasingly 

being requested by courts or submitted by lawyers in federal death penalty cases. Most judges and 

lawyers interviewed by the Subcommittee were receptive to the idea of case budgeting, provided that 

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persons with expertise in the defense of federal death penalty cases were available to assist in the 

development or the review of a case budget. Recommendation 9(d) encourages courts and counsel to 

seek such assistance from the Administrative Office and Federal Death Penalty Resource Counsel. 

Because of the unpredictability of pretrial litigation, it is impractical to require counsel to budget for an 

entire case from start to finish. At a minimum, the budgeting process should be in two stages, as 

suggested in Recommendations 9(b) and (c). The first stage begins when the lawyer is sufficiently 

familiar with the case to be able to present a budget reasonably related to the anticipated factual and 

legal issues in the case and continues until the Department of Justice makes its decision as to whether it 

will seek the death penalty. If a death penalty notice is filed, a further budget should be prepared. The 

court may require a single budget from authorization to trial, or a series of budgets covering shorter 

increments of time. If the prosecution will not seek the death penalty, Recommendation 9(i) calls for the 

court to review the case in accordance with CJA Guideline 6.02.B(2), to determine whether the number 

or compensation of counsel should be reduced. 

Because case budgeting is time consuming, and because federal death penalty cases in which the 

prosecution decides not to seek the death penalty cost much less than cases in which the death penalty is 

authorized, it may not be cost-effective for counsel to prepare a case budget if authorization is 

improbable. For this reason, Recommendation 9(a) encourages courts to inquire of the prosecution 

whether authorization is unlikely. Furthermore, inquiring into the date by which the authorization 

decision will be made will provide information about how long a period the initial budget should cover, 

which will assist courts in reviewing budgets. 

If a significant mitigation investigation is to be undertaken, the Subcommittee recommends that a budget 

be developed for this work. 

Recommendation 9(e) calls for case budgets to be submitted ex parte and maintained permanently under 

seal. A case budget requires defense counsel to spell out the overall litigation plan for the case. 

Consequently, it is an extremely sensitive document and contains privileged information. This approach 

is consistent with Judicial Conference policy regarding capital habeas case budgets. (CJA Guideline 

6.02F.) 

Review of case budgets greater than $250,000 by the Administrative Office should assist courts in 

determining whether the cost of representation is reasonable in light of experience in other similar cases 

and in identifying areas in which expenses might be reduced. 

10. Case Management. 

a. Non-Lawyer Staff. Where it will be cost-effective, courts should consider authorizing payment for 

services to assist counsel in organizing and analyzing documents and other case materials. 

b. Multi-defendant Cases. 

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i. Early Decision Regarding Severance. Courts should consider making an early decision 

on severance of non-capital from capital co-defendants. 

ii. Regularly Scheduled Status Hearings. Status hearings should be held frequently, and a 

schedule for such hearings should be agreed upon in advance by all parties and the court. 

iii. "Coordinating Counsel." In a multi-defendant case (in particular a multi-defendant 

case in which more than one individual is eligible for the death penalty), and with the 

consent of co-counsel, courts should consider designating counsel for one defendant as 

"coordinating counsel." 

iv. Shared Resources. Counsel for co-defendants should be encouraged to share resources 

to the extent that doing so does not impinge on confidentiality protections or pose an 

unnecessary risk of creating a conflict of interest. 

v. Voucher Review. In large multi-defendant cases, after approving a case budget, the 

court should consider assigning a magistrate judge to review individual vouchers. The 

court should meet with defense counsel at regular intervals to review spending in light of 

the case budget and to identify and discuss future needs. 

Commentary

Recommendation 10(a) recognizes that the large volume of discovery materials and pleadings associated 

with a federal death penalty case may make it cost-effective for courts to authorize (and appointed 

counsel to employ) the services of law clerks, paralegals, secretaries or others to perform organizational 

work which would otherwise have to be performed by counsel at a higher hourly rate. (See also 

Commentary accompanying Recommendation 3, endorsing the practice of authorizing counsel to obtain 

the services of additional attorneys under appropriate circumstances.) Judicial Conference policy 

provides that, in general, appointed counsel may not be reimbursed for expenses deemed part of their 

office overhead (CJA Guideline 2.28); however, unusual expenses of this nature may be compensated 

(CJA Guideline 3.16). The Guidelines suggest that in determining whether an expense is unusual or 

extraordinary, "consideration should be given to whether the circumstances from which the need arose 

would normally result 

in an additional charge to a fee paying client over and above that charged for overhead expenses" (CJA 

Guideline 3.16). 

Recommendations 10(b)(i) - (iv) address some of the particular management burdens associated with 

multi-defendant federal death penalty cases. Special efforts are required to ensure the orderly 

administration of justice in these matters, which tend to become costly and cumbersome for courts and 

counsel. 

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Recommendation 10(b)(i) suggests that courts make early decisions concerning severance of non-capital 

from capital co-defendants. In general, capital cases remain pending longer than non-capital cases and 

involve far greater amounts of pre-trial litigation. Separating the cases of non-capital co-defendants, 

where appropriate, may lead to swifter and less costly dispositions in those cases. The earlier such a 

decision is implemented, the greater will be the cost savings. 

Recommendation 10(b)(ii) suggests that courts schedule frequent status hearings so that discovery and 

other matters may proceed efficiently and so that problems may be noted early and swiftly resolved. If 

the schedule for such status hearings (on a monthly or other basis) is agreed upon in advance, then all 

parties can plan accordingly and valuable time will not be wasted while counsel and judges try to find a 

mutually convenient time for their next meeting. 

Recommendation 10(b)(iii) suggests that, if all counsel agree, courts consider designating the attorneys 

for one defendant as "coordinating counsel." Coordinating counsel might be responsible for arranging 

the efficient filing and service of motions and responses among the co-defendants, scheduling cocounsel meetings and court dates, facilitating discovery, or any other tasks deemed appropriate by 

counsel and the court. In multi-defendant cases where the federal defender organization represents a 

defendant eligible for the death penalty, courts should (taking into account the views of the federal 

defender) consider designating the FDO as coordinating counsel because of its institutional capabilities. 

In the event that a panel attorney is designated as coordinating counsel, the additional time and resources 

demanded by this role should be compensated. 

11. Availability of Cost Data 

The Administrative Office should improve its ability to collect and analyze information about case 

budgets and the cost of capital cases. 

Commentary

Only because there have been a comparatively small number of federal death penalty cases was it 

possible to assemble -- by painstaking manual collection -- the cost data relied upon by the 

Subcommittee. This process was necessitated by the limitations of the only available information source, 

the CJA payment system. The Administrative Office is in the process of replacing that system. Given the 

heightened significance of capital case costs to the federal defender program, the Administrative Office 

should give priority to ensuring that its new system will provide capital case data which is accurate, 

reliable and accessible. In addition, the Administrative Office should continuously track capital case 

costs so that the impact of appellate and post-conviction litigation can be analyzed, trends in case costs 

can be readily identified, and appropriate cost-containment mechanisms can be developed. 

 

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Footnotes 

1. 21 U.S.C. § 848, codifying Pub. L. 100-690, 102 Stat. 4382 (1988). The Supreme Court's decision in Furman 

v. Georgia, 408 U.S. 238 (1972), had invalidated the previously existing federal death penalty statutes. 

2. Pub. L. 103-322, 108 Stat. 1959 (1994). 

3. Coopers & Lybrand Consulting, Report on Costs and Recommendations for the Control of Costs of the 

Defender Services Program (C&L) at Appendix Table 0.1 (Jan. 28, 1998). 

4. Dean Lefstein was assisted by Lisa Greenman, Attorney Advisor in the Defender Services Division of the 

Administrative Office of the U.S. Courts, and David Reiser, a consultant to the Division. In addition, Kathleen 

O'Connor, Budget Analyst, and Sylvia Fleming, Systems Support Analyst, assisted in the quantitative analysis. 

5. Cost averages reported here do not include estimates of the cost of representation in cases in which a federal 

defender organization (FDO) served as sole or co-counsel. The available data were inadequate to make reliable 

estimates of the cost of work performed by FDO attorneys and staff, and using panel attorney payments alone in 

cases in which FDOs served as co-counsel would have understated the actual cost of representation. Because 

panel attorneys, rather than FDOs, have provided representation in the vast majority of cases, the actual payments 

approved for panel attorneys are a better source of information on the cost of representation than estimates of 

FDO costs. The cost averages in this report also do not include expenditures attributable to the case that arose 

from the bombing of the federal building in Oklahoma City. Payment information related to the defense of that 

extraordinary case remains under seal pursuant to court order. However, the data available to the Subcommittee 

affords an adequate basis for assessing the cost of the typical range of federal death penalty cases. 

6. See 18 U.S.C. § 3005 (requiring appointment of two lawyers, including at least one "learned" counsel); 21 U.S.

C. § 848(q) (setting higher maximum hourly rate for capital cases, establishing special qualifications for 

appointment, and setting special threshold for review of services other than counsel). These standards are 

discussed more fully in Sections B.7 (expert services), C.1 (learned counsel), C.5 (compensation of counsel), and 

C.6 (number of counsel). 

7. Other factors considered by the Subcommittee included regional variations and variations over time. Although 

there have been too few federal death penalty cases to draw any statistically meaningful conclusions about 

whether the cost of representation varies regionally, the data which do exist suggest that there are not substantial 

differences such as those which have been noted in federal capital habeas corpus cases. Also, while annual costs 

of representation have varied -- probably as a result of the number of new cases for which few vouchers have yet 

been approved in a given fiscal year -- the average total cost per representation has remained stable and even 

declined from year to year. (See Appendix C, Chart C-1.) One possible explanation is that the proportion of 

highly complex drug conspiracy cases has declined, so that the average federal death penalty case is slightly less 

complex and expensive. 

8. There is a small category of offenses over which the federal government has exclusive criminal jurisdiction. 

See 18 U.S.C. §§ 7, 13. Such cases cannot be prosecuted in a state court. However, most of the offenses charged 

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in federal death penalty cases could also be prosecuted in a state court. Of the federal death penalty cases filed to 

date, it is uncertain precisely how many could have been prosecuted as capital cases in state court, because not 

all state laws provide for the death penalty, and the statutory standards for death penalty prosecutions vary from 

state to state. Interview data indicate, however, that the vast majority of federal death penalty cases could also 

have been prosecuted as state capital cases. 

9. This estimate is based on cases tracked by the Federal Death Penalty Resource Counsel Project, which is 

described in Section C.2, infra. 

10. Since January 1995, the Justice Department has reviewed all federal death penalty cases in order to monitor 

and centralize decisionmaking as to those cases in which the death penalty will be sought. Prior to that time, there 

was centralized review only of cases in which the local U.S. Attorney requested permission to seek the death 

penalty, and there was no requirement that the Attorney General review cases in which the local United States 

Attorney did not request such authorization. (The Department of Justice reports that 46 such cases were reviewed 

by the Attorney General from 1990 to 1994, of which 36 were authorized.) Between January 1995 and December 

1997, the Attorney General reviewed 162 federal death penalty cases in which she did not seek the death penalty; 

however, this statistic cannot be extrapolated to determine the likely number of unauthorized cases for the period 

from 1988 to 1995, because fewer federal offenses were punishable by death before the enactment of the 1994 

crime bill. 

11. The sample consists of 78 authorized federal death penalty cases, 58 cases in which authorization was denied, 

and 7 cases in which the authorization decision was still pending. The $142,000 figure reflects the average 

(mean) total cost of vouchers approved for the representation of a single defendant prior to the end of FY 1997. 

Because federal death penalty cases typically extend over more than one fiscal year, total costs are more helpful 

in analyzing costs and making recommendations for case budgeting and other controls than annual costs. The 

distribution of costs for a representation on an annual basis may reflect more about how quickly vouchers are 

submitted and approved in a particular case than about the reasonable cost of the work required in the case in any 

given year. Average cost statistics reported are based on the total of payments made through the end of FY 1997, 

and may not be complete for any given case. The Subcommittee's sample over-represents the proportion of 

federal death penalty cases in which authorization was granted; therefore the average cost of the cases in the 

sample is greater than the average total cost of all federal death penalty cases. 

12. This number was provided by the Department of Justice in a letter to the Honorable William Terrell Hodges, 

Chair of the Executive Committee of the Judicial Conference of the United States, dated April 14, 1998. The 

Department provided the Subcommittee with a list identifying 113 authorized cases through December 12, 1997. 

13. The "capital trials" in the Subcommittee's sample include one case in which defendants were acquitted of 

capital charges, and which therefore did not include a penalty phase, and one case in which the government 

withdrew its request for the death penalty mid-trial, because these cases were prepared and litigated through the 

guilt phase as capital cases, even though there was no penalty phase. Two cases resolved by guilty pleas after the 

commencement of jury selection but before the presentation of evidence have not been classified as capital trials, 

although in these cases the vast majority of costs associated with the trial of a federal death penalty case had been 

incurred. 

14. See 21 U.S.C. § 848(i) (separate sentencing hearing); 18 U.S.C. § 3593(b) (same). All post-Furman state 

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death penalty laws likewise provide for a bifurcated sentencing proceeding. 

15. A report by the General Accounting Office (GAO) prepared shortly after the revival of the federal death 

penalty examined existing data concerning the additional costs associated with a death penalty prosecution. 

GAO, Limited Data Available on Costs of Death Sentences (Sept. 1989). Subsequently, the State Justice Institute 

sponsored a study responding to some of the GAO's methodological critiques of earlier studies. Phillip J. Cook & 

Donna B. Slawson, The Cost of Processing Murder Cases in North Carolina (1993). Cook and Slawson found 

that both the prosecution and the defense devoted much more time to a capital murder trial than to a non-capital 

murder trial, and that the capital trials lasted much longer. Id. at 61. 

16. Source: Federal Death Penalty Resource Counsel Project data. In addition, some of the federal death penalty 

prosecutions not brought under the CCE or RICO provisions also involve drug conspiracies. For example, one 

prosecution under the civil rights law arose from a federal investigation into a related drug conspiracy. Another 

case in which the capital charge was based on a kidnapping statute also grew out of a drug conspiracy, as did a 

robbery case. 

17. C&L at IV.81. 

18. Source: Federal Death Penalty Resource Counsel Project data. 

19. The number of representations in other offense categories was too small to generate meaningful averages; 

however, the average cost per representation in each category was lower than the average for drug cases. 

20. As a result, the scope of the penalty phase in a federal capital case may be even wider than it is in states that 

adhere to the rules of evidence in the penalty phase. 

21. Louis D. Bilionis & Richard A. Rosen, Lawyers, Arbitrariness and the Eighth Amendment, 75 Tex. L. Rev. 

1301, 1316-17 (1997) (citing Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (opinion of Stewart, Powell, 

& Stevens, JJ.). 

22. Recent decisions illustrating this point include: Williamson v. Ward, 110 F.3d 1508 (10th Cir. 1997); Hall v. 

Washington, 106 F.3d 742 (7th Cir. 1997); Emerson v. Gramley, 91 F.3d 898 (7th Cir. 1996), cert. denied, 117 S.

Ct. 1260 (1997); Glenn v. Tate, 71 F.3d 1204 (6th Cir. 1995), cert. denied, 117 S.Ct. 273 (1996); Hendricks v. 

Calderon, 70 F.3d 1032 (9th Cir. 1995), cert. denied, 116 S.Ct. 1335 (1996); Clabourne v. Lewis, 64 F.3d 1373 

(9th Cir. 1995); Antwine v. Delo, 54 F.3d 1357 (8th Cir. 1995), cert. denied, 116 S.Ct. 753 (1996); Baxter v. 

Thomas, 45 F.3d 1501 (11th Cir.), cert. denied, 116 S.Ct. 385 (1995); Jackson v. Herring, 42 F.3d 1350 (11th 

Cir.), cert. denied, 116 S.Ct. 38 (1995). 

23. See ABA Guideline 11.8.3; New York Guideline 10.3. 

24. Cook and Slawson found an enormous difference in the amount of time defense counsel devoted to a noncapital murder case as compared to a capital murder case in their study of North Carolina cases. The Costs of 

Processing Murder Cases in North Carolina at 61. (See note 15, supra.) 

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25. See ABA Guideline 11.4.2. 

26. In other words, lawyers have to raise issues that may previously have been decided against them in their 

district or circuit. If they fail to do so, they will be barred by procedural default from obtaining relief from a death 

sentence, even if the Supreme Court later finds their positions meritorious. See Hitchcock v. Dugger, 481 U.S. 

393 (1987) (upholding challenge to application of Florida death penalty statute that had been repeatedly rejected 

by the circuit and district courts). 

27. C&L at IV.50. Prior to 1994, attorneys did not categorize their hours on vouchers, so reliable data concerning 

the attorney workload do not exist prior to FY 1995. 

28. It is too early to tell from the data whether attorney time associated with legal research and writing will 

decline as unresolved issues are decided by the appellate courts. 

29. Comparable data are not available for non-capital homicides, or other non-capital cases, because the voucher 

form used in non-capital cases does not break down attorney hours into these categories. 

30. C&L at IV.22. 

31. The Department did not identify cases by name; therefore it was impossible to compare the cost of 

prosecution and defense in specific cases. 

32. In addition, the Department's estimate of its personnel costs for each prosecution was based on the share of 

attorney and non-attorney staff salary and benefits devoted to each prosecution, and therefore did not include 

"overhead" costs. 

33. Department of Justice, United States Attorney's Manual § 9-10.000. 

34. In some districts, U.S. Attorney's offices have also implemented a similar process for obtaining defense 

counsel's input into the decision regarding whether or not to recommend authorization to the Attorney General. 

35. Another, less important, cost factor is the direct cost of participating in the authorization process. This 

includes the attorney time devoted to drafting a written submission to the Death Penalty Review Committee and 

the costs of travel to and from Washington to meet with the Committee. The CJA payment system does not 

separately track these costs. 

36. C& L at IV.49. For non-capital homicides, the portion of payments for services other than counsel was 

approximately 16.2% in FY 1997, and 18% over the period FY 1992-97. The distribution of these costs was 

different from that in capital cases. Investigators were used much more frequently in federal death penalty cases 

(88/136) than in non-capital homicides (128/639 from FY 1992-1997). In those cases in which investigators were 

hired, the average cost was $22,438 for death penalty cases, compared to $3,502 for non-capital homicide cases. 

Psychologists were also hired much more frequently (50/136 versus 62/639). The average spending for each case 

in which a psychologist was hired was $8,723 for death penalty cases compared to $1,382 for non-capital 

homicide. Similarly, "other" experts were hired in 94/136 federal death penalty cases versus 78/639 non-capital 

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homicides, with an average cost in each case in which an "other" expert was hired of $21,928 in death penalty 

cases versus $3,980 for non-capital homicides. 

37. C&L at IV.24. See ABA Guideline 11.8.3 (preparation for the sentencing phase should begin immediately 

upon counsel's entry into the case). 

38. The precise amounts and hourly rates paid to mitigation specialists in all cases could not be determined, 

because the standard death penalty expert expense form does not include a distinct code for mitigation specialist 

or the equivalent, who are therefore coded "other." It was possible, however, to tie CJA payment system 

information to other data concerning the use of mitigation specialists for several cases. Hourly rates paid to 

mitigation specialists in those cases ranged from $35 to $80 per hour. 

39. American Bar Association, Toward a More Just and Effective System of Review in State Death Penalty 

Cases, 40 Am. U. L. Rev. 1, 63 (1990). 

40. Id. at 65, 69, 70. 

41. Id. at 70. 

42. See Judicial Conference of the United States, Committee on Defender Services, Subcommittee on Death 

Penalty Representation at 5 (1995) (discussing the problem of constant reinvention of the wheel in capital habeas 

cases). 

43. In fact, the Justice Department is in the process of enhancing the support already available to prosecutors in 

federal death penalty cases. Although in the past the Criminal Division did not have a designated death penalty 

unit, approximately eight new attorney positions are to be dedicated exclusively to assisting U.S. Attorney's 

Offices involved in federal death penalty prosecutions. 

44. The Federal Death Penalty Resource Counsel Project is modeled on the CJA Panel Attorney Resource 

Counsel program, in which, in a limited number of federal districts which are not served by a federal defender 

organization, a private panel attorney provides, on a part-time, hourly fee basis, training and advice to appointed 

counsel and serves as a liaison with the court and the Administrative Office when necessary. The Federal Death 

Penalty Resource Counsel Project should not be confused with the former Post-Conviction Defender 

Organizations, or Death Penalty Resource Centers, which were fully staffed law offices providing representation 

and other services in death penalty habeas corpus proceedings arising from state court death sentences, and which 

no longer receive any federal funding.

45. See Section C.2, supra. 

46. There are two types of FDO. A federal public defender (FPD) is a federal agency staffed by federal 

employees. A community defender organization (CDO) is a non-profit agency funded by a grant from the 

judiciary. The fifty FPD offices serve 58 of the 94 federal districts. Thirteen CDOs serve an additional 15 

districts. 

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47. In a small number of cases, courts have appointed two attorneys from an FDO as counsel and have not 

appointed a panel attorney. There has been one capital trial in which representation was provided exclusively by 

the FDO. In all other cases in which the death penalty was authorized, a panel attorney was appointed together 

with the FDO. 

48. In many federal death penalty cases, conflict of interest rules have precluded the FDO from accepting 

appointment. These conflicts typically arise because the FDO has previously represented a co-defendant or 

witness in the case, and are particularly common in multi-defendant prosecutions. 

49. Although 21 U.S.C. § 848(q)(5) requires appointment of at least one attorney who has been admitted to 

practice in the court in which the prosecution is to be tried for not less than five years, the statute provides an 

exception, for good cause, which permits the court to appoint instead "an attorney whose background, 

knowledge, or experience would otherwise enable him or her to properly represent the defendant, with due 

consideration to the seriousness of the possible penalty and to the unique and complex nature of the litigation. 21 

U.S.C. § 848(q)(7). 

50. Concerns have been raised, however, about whether lawyers from out-of-district might be less effective than 

local attorneys in jury trials. Those interviewed disagreed about this point, and it may be more true in some areas 

than in others. At one extreme, there were those who believed it would be disadvantageous to appoint a lawyer 

from a larger city within the same district to a case in a more rural area. It may also be, as some interviewees 

suggested, that familiarity with the local jury pool is especially important in a capital case, and that counsel 

without local trial experience is more likely to need an expert to assist in jury selection. See Section B.7, supra. 

51. 21 U.S.C. § 848(q)(10)(A). There is no statutory maximum for cases filed prior to April 24, 1996, however 

Judicial Conference guidelines recommend an hourly rate ranging between $75 and $125 per hour. Courts 

authorized rates higher than $125 per hour only in a handful of federal death penalty cases filed before the 

enactment of the statutory maximum. Coopers & Lybrand attributed a substantial portion of the increase in the 

cost per federal death penalty representation to a "real increase in [hourly] rates." (C&L IV.37). This conclusion, 

however, is not correct, as it was based on a projection from the highest hourly rates paid in a case during a fiscal 

year, rather than the average rate paid per hour billed over the fiscal year. Using the latter method, the average 

hourly rate fluctuated from year to year. FY 1991: $115.82; FY 1992: $108.22; FY 1993: $99.44; FY 1994: 

$79.92; FY 1995: $88.16; FY 1996: $113.84; FY 1997: $108.84. Calculating average hourly rates billed per 

representation showed a similar pattern of fluctuation, rather than a consistent rise in the hourly rate of attorney 

compensation. Therefore, it cannot be said that the rate of attorney compensation accounted for a significant 

portion of the overall increase in spending on federal death penalty cases. 

52. Report of the Judicial Conference of the United States on the Federal Defender Program at 12 (1993). 

53. The national average (mean) billing rate for law firm associates, as of January 1, 1997, was $134 per hour. 

The median billing rate for associates was $125 per hour, which means that half of the country's non-partner 

lawyers (who typically have less experience than qualified federal death penalty lawyers) bill at a higher rate than 

the highest rate that may be authorized for a lawyer capable of undertaking the most challenging criminal 

representation. Altman, Weil, and Pensa, The 1997 Survey of Law Firm Economics at II-3 (1997). For small 

firms, the mean for associates was $127 per hour, and the median was $125 per hour. For partners in small firms 

-- the most comparable source for the rate panel attorneys in capital cases would command in the private market, 

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the mean was $169 per hour, and the median was $160 per hour. Id. at II-6. For lawyers with at least five years of 

experience, the minimum required by statute, the mean billing rate was $150 per hour, with a median of $145. 

For lawyers with 15 years of experience -- much more typical of the lawyers considered qualified for federal 

death penalty cases -- the mean was $179 per hour, and the median was $175 per hour. Id. at II-9. The 1996 

national average hourly cost of office overhead, assuming 1800 billable hours yearly, was $64.3 per hour. Id. at 

VII-5. In some areas, billing rates and overhead costs are much higher than the national average, yet the 

maximum rate for representation in a federal death penalty case is limited to $125 per hour. 

54. The maximum rate which may be paid to appointed counsel in non-capital cases is $75 per hour. Although 

the Judicial Conference has approved this rate for all districts, funding has been provided by Congress only for 

12 districts (or portions of districts) at this rate. The remaining districts are limited to $45 for out-of-court work 

and $65 for in court work. 

55. These factors are relevant to the determination of a reasonable rate of compensation for legal representation 

under the ABA Model Rules of Professional Conduct and caselaw interpreting federal "fee-shifting" statutes. See 

Model Rules of Professional Conduct 1.5(a)(1), (3) and (7). 

56. See Model Rules of Professional Conduct 1.5(a)(2) (inability to accept other employment is a factor in setting 

reasonable fee). 

57. In the sample of federal death penalty cases assembled for this report, there were two cases in which a total of 

five lawyers were compensated, however in both cases some of the lawyers were replaced by others, so that no 

more than three lawyers worked on the case at one time. In eight cases, four lawyers were compensated, however 

in some of these cases lawyers replaced others who had been removed. In 12 cases three lawyers were 

compensated. In the remaining 95 cases (81% of the total), only two lawyers were compensated. 

58. A district court which chooses to provide representation through a federal defender organization may elect 

one of two organizational models. A Federal Public Defender Organization (FPDO) is a federal agency, headed 

by a Federal Public Defender who is selected by the Circuit Court of Appeals. The attorneys and other staff of a 

federal public defender organization are government employees. A Community Defender Organization (CDO) is 

a not-for-profit corporation governed by a board of directors and led by an executive director. Both types of 

organization are funded and administered by the federal judiciary pursuant to the Criminal Justice Act, 18 U.S.C. 

§ 3006A. The term "federal defender organization," or "FDO," as used in this report, includes both organizational 

models. 

59. The distinction between being qualified to serve and willing to do so is significant. Most defense counsel 

interviewed by the Subcommittee indicated that they would not be willing to accept appointment to more than 

one federal death penalty case at a time. Furthermore, since accepting a federal death penalty appointment 

requires a substantial time commitment which may ultimately cause the attorney to become entirely unavailable 

for any other fee-generating work, appointment to such a case is not lightly undertaken. 

60. In a very small number of cases, federal defender organizations have served as both lead and second counsel, 

without the assistance of a panel attorney; such appointments should not be made unless the federal defender 

believes it is in the best interests of the client and the organization. 

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Appendix A

APPENDIX A

RECOMMENDATIONS

1. Qualifications for Appointment. 

a. Quality of Counsel. Courts should ensure that all attorneys appointed in federal death penalty cases 

are well qualified, by virtue of their prior defense experience, training and commitment, to serve as 

counsel in this highly specialized and demanding type of litigation. High quality legal representation is 

essential to assure fair and final verdicts, as well as cost-effective case management. 

b. Qualifications of Counsel. As required by statute, at the outset of every capital case, courts should 

appoint two counsel, at least one of whom is experienced in and knowledgeable about the defense of 

death penalty cases. Ordinarily, "learned counsel" should have distinguished prior experience in the trial, 

appeal, or post-conviction review of federal death penalty cases, or distinguished prior experience in 

state death penalty trials, appeals, or post-conviction review that, in combination with co-counsel, will 

assure high quality representation. 

c. Special Considerations in the Appointment of Counsel on Appeal. Ordinarily, the attorneys appointed 

to represent a death-sentenced federal appellant should include at least one attorney who did not 

represent the appellant at trial. In appointing appellate counsel, courts should, among other relevant 

factors, consider: 

i. the attorney's experience in federal criminal appeals and capital appeals; 

ii. the general qualifications identified in paragraph 1(a), above; and 

iii. the attorney's willingness, unless relieved, to serve as counsel in any post-conviction 

proceedings that may follow the appeal. 

d. Special Considerations in the Appointment of Counsel in Post-Conviction Proceedings. In appointing 

post-conviction counsel in a case where the defendant is sentenced to death, courts should consider the 

attorney's experience in federal post-conviction proceedings and in capital post-conviction proceedings, 

as well as the general qualifications set forth in paragraph 1(a). 

e. Hourly Rate of Compensation for Counsel. The rate of compensation for counsel in a capital case 

should be maintained at a level sufficient to assure the appointment of attorneys who are appropriately 

qualified to undertake such representation. 

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Appendix A

2. Consultation with Federal Defender Organizations or the Administrative Office. 

a. Notification of Statutory Obligation to Consult. The Administrative Office of the U.S. Courts 

(Administrative Office) and federal defender organizations should take appropriate action to ensure that 

their availability to provide statutorily mandated consultation regarding the appointment of counsel in 

every federal death penalty case is well known to the courts. (See 18 U.S.C. § 3005.) 

b. Consultation by Courts in Selecting Counsel. In each case involving an offense punishable by death, 

courts should, as required by 18 U.S.C. § 3005, consider the recommendation of the district's Federal 

Public Defender (FPD) (unless the defender organization has a conflict) about the lawyers to be 

appointed. In districts not served by a Federal Public Defender Organization, 18 U.S.C. § 3005 requires 

consultation with the Administrative Office. Although not required to do so by statute, courts served by 

a Community Defender Organization should seek the advice of that office. 

c. Consultation by Federal Defender Organizations and the Administrative Office in Recommending 

Counsel. In discharging their responsibility to recommend defense counsel, FDOs and the 

Administrative Office should consult with Federal Death Penalty Resource Counsel in order to identify 

attorneys who are well qualified, by virtue of their prior defense experience, training and commitment, 

to serve as lead and second counsel. 

3. Appointment of More Than Two Lawyers. 

Number of Counsel. Courts should not appoint more than two lawyers to provide representation to a 

defendant in a federal death penalty case unless exceptional circumstances and good cause are shown. 

Appointed counsel may, however, with prior court authorization, use the services of attorneys who work 

in association with them, provided that the employment of such additional counsel (at a reduced hourly 

rate) diminishes the total cost of representation or is required to meet time limits. 

4. Appointment of the Federal Defender Organization (FDO). 

a. FDO as Lead Counsel. Courts should consider appointing the district's FDO as lead counsel in a 

federal death penalty case only if the following conditions are present: 

i. the FDO has one or more lawyers with experience in the trial and/or appeal of capital 

cases who are qualified to serve as "learned counsel"; and 

ii. the FDO has sufficient resources so that workload can be adjusted without unduly 

disrupting the operation of the office, and the lawyer(s) assigned to the death penalty case 

can devote adequate time to its defense, recognizing that the case may require all of their 

available time; and 

iii. the FDO has or is likely to obtain sufficient funds to provide for the expert, 

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Appendix A

investigative and other services reasonably believed to be necessary for the defense of the 

death penalty case. 

b. FDO as Second Counsel. Courts should consider appointing the district's FDO as second counsel in a 

federal death penalty case only if the following conditions are present: 

i. the FDO has sufficient resources so that workload can be adjusted without unduly 

disrupting the operation of the office, and the lawyer(s) assigned to the death penalty case 

can devote adequate time to its defense, recognizing that the case may require all of their 

available time; and 

ii. the FDO has or is likely to obtain sufficient funds to provide for the expert, 

investigative and other services reasonably believed to be necessary for the defense of the 

death penalty case. 

5. The Death Penalty Authorization Process. 

a. Streamlining the Authorization Process. The Department of Justice should consider adopting a "fast 

track" review of cases involving death-eligible defendants where there is a high probability that the 

death penalty will not be sought. 

b. Court Monitoring of the Authorization Process. Courts should exercise their supervisory powers to 

ensure that the death penalty authorization process proceeds expeditiously. 

6. Federal Death Penalty Resource Counsel. 

a. Information from Resource Counsel. In all federal death penalty cases, defense counsel should obtain 

the services of Federal Death Penalty Resource Counsel in order to obtain the benefit of model pleadings 

and other information that will save time, conserve resources and enhance representation. The judiciary 

should allocate resources sufficient to permit the full value of these services to be provided in every 

case. 

b. Technology and Information Sharing. The Administrative Office should explore the use of computerbased technology to facilitate the efficient and cost-effective sharing of information between Resource 

Counsel and defense counsel in federal death penalty cases. 

7. Experts. 

a. Salaried Positions for Penalty Phase Investigators. The federal defender program should consider 

establishing salaried positions within FDOs for persons trained to gather and analyze information 

relevant to the penalty phase of a capital case. FDOs should explore the possibility that, in addition to 

providing services in death penalty cases to which their FDO is appointed, it might be feasible for these 

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investigators to render assistance to panel attorneys and to other FDOs. 

b. Negotiating Reduced Rates. Counsel should seek to contain costs by negotiating reduced hourly rates 

and/or total fees with experts and other service providers. 

c. Directory of Experts. A directory of experts willing to provide the assistance most frequently needed 

in federal death penalty cases, and their hourly rates of billing, should be developed and made available 

to counsel. 

8. Training. 

Federal Death Penalty Training Programs. The Administrative Office should continue to offer and 

expand training programs designed specifically for defense counsel in federal death penalty cases. 

9. Case Budgeting. 

a. Consultation with Prosecution. Upon learning that a defendant is charged with an offense punishable 

by death, courts should promptly consult with the prosecution to determine the likelihood that the death 

penalty will be sought in the case and to find out when that decision will be made. 

b. Prior to Death Penalty Authorization. Ordinarily, the court should require defense counsel to submit a 

litigation budget encompassing all services (counsel, expert, investigative and other) likely to be 

required through the time that the Department of Justice (DOJ) determines whether or not to authorize 

the death penalty. 

c. After Death Penalty Authorization. As soon as practicable after the death penalty has been authorized 

by DOJ, defense counsel should be required to submit a further budget for services likely to be needed 

through the trial of the guilt and penalty phases of the case. In its discretion, the court may determine 

that defense counsel should prepare budgets for shorter intervals of time. 

d. Advice from Administrative Office and Resource Counsel. In preparing and reviewing case budgets, 

defense counsel and the courts should seek advice from the Administrative Office and Federal Death 

Penalty Resource Counsel, as may be appropriate. 

e. Confidentiality of Case Budgets. Case budgets should be submitted ex parte and should be filed and 

maintained under seal. 

f. Modification of Approved Budget. An approved budget should guide counsel's use of time and 

resources by indicating the services for which compensation is authorized. Case budgets should be reevaluated when justified by changed or unexpected circumstances, and should be modified by the court 

where good cause is shown. 

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g. Payment of Interim Vouchers. Courts should require counsel to submit vouchers on a monthly basis, 

and should promptly review, certify and process those vouchers for payment. 

h. Budgets In Excess of $250,000. If the total amount proposed by defense counsel to be budgeted for a 

case exceeds $250,000, the court should, prior to approval, submit such budget for review and 

recommendation to the Administrative Office. 

i. Death Penalty Not Authorized. As soon as practicable after DOJ declines to authorize the death 

penalty, the court should review the number of appointed counsel and the hourly rate of compensation 

needed for the duration of the proceeding pursuant to CJA Guideline 6.02.B(2). 

j. Judicial Conference Guidelines. The Judicial Conference should promulgate guidelines on case 

budgeting for use by the courts and counsel. 

k. Judicial Training for Death Penalty Cases. The Federal Judicial Center should work in cooperation 

with the Administrative Office to provide training for judges in the management of federal death penalty 

cases and, in particular, in the review of case budgets. 

10. Case Management. 

a. Non-Lawyer Staff. Where it will be cost-effective, courts should consider authorizing payment for 

services to assist counsel in organizing and analyzing documents and other case materials. 

b. Multi-defendant Cases. 

i. Early Decision Regarding Severance. Courts should consider making an early decision 

on severance of non-capital from capital co-defendants. 

ii. Regularly Scheduled Status Hearings. Status hearings should be held frequently, and a 

schedule for such hearings should be agreed upon in advance by all parties and the court. 

iii. "Coordinating Counsel." In a multi-defendant case (in particular a multi-defendant 

case in which more than one individual is eligible for the death penalty), and with the 

consent of co-counsel, courts should consider designating counsel for one defendant as 

"coordinating counsel." 

iv. Shared Resources. Counsel for co-defendants should be encouraged to share resources 

to the extent that doing so does not impinge on confidentiality protections or pose an 

unnecessary risk of creating a conflict of interest. 

v. Voucher Review. In large multi-defendant cases, after approving a case budget, the 

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court should consider assigning a magistrate judge to review individual vouchers. The 

court should meet with defense counsel at regular intervals to review spending in light of 

the case budget and to identify and discuss future needs. 

11. Availability of Cost Data 

The Administrative Office should improve its ability to collect and analyze information about case 

budgets and the cost of capital cases. 

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APPENDIX B

SOURCES AND METHODOLOGY

The Subcommittee's conclusions are based on a combination of qualitative judgments about 

representation in federal capital cases obtained from interviews, pleadings, and training materials, and 

quantitative data concerning the number, characteristics, and cost of representation in federal death 

penalty cases. 

QUALITATIVE AND BACKGROUND SOURCES 

Standard of Practice in Death Penalty Cases. In order to fully understand the unique standards of 

practice applicable to death penalty cases in general, and to federal death penalty cases in particular, the 

Subcommittee reviewed works by judges, scholars, and lawyers concerning the duties of counsel in a 

capital case. Sources included works focusing on federal habeas corpus for state prisoners under 

sentence of death such as the Report of the Judicial Conference Ad Hoc Committee on Federal Habeas 

Corpus in Capital Cases (Powell Committee report) (1989), the Report on Death Penalty Representation 

of the Committee on Defender Services Subcommittee on Death Penalty Representation (1995), and Ira 

P. Robbins, Towards a More Just and Effective System of Review in State Death Penalty Cases, 40 Am. 

U. L. Rev. 1 (1990), as well as materials related to the funding and quality of representation provided in 

state death penalty cases, such as: Louis D. Bilionis and Richard D. Rosen, Lawyers, Arbitrariness and 

the Eighth Amendment, 75 Tex. L. Rev. 1301 (1997); Michael D. Moore, Analysis of State Indigent 

Defense Systems and their Application to Death-Eligible Defendants, 37 Wm. & Mary L. Rev. 1617 

(1996); Norman Lefstein, Reform of Defense Representation in Capital Cases: the Indiana Experience 

and its Implications for the Nation, 29 Ind. L. Rev. 495 (1996); Douglas W. Vick, Poorhouse Justice: 

Underfunded Indigent Defense Services and Arbitrary Death Sentences, 43 Buff. L. Rev. 329 (1995); 

Ruth E. Friedman & Bryan A. Stevenson, Solving Alabama's Capital Defense Problems: It's a Dollars 

and Sense Thing, 44 Ala. L. Rev. 1 (1992); Anthony Paduano & Clive Stafford-Smith, The 

Unconscionability of Sub-Minimum Wages Paid Appointed Counsel in Capital Cases, 43 Rutgers L. 

Rev. 281 (1991); Albert L. Vreeland, II, The Breath of the Unfee'd Lawyer: Statutory Fee Limitations 

and Ineffective Assistance of Counsel in Capital Litigation, 90 Mich. L. Rev. 626 (1991). 

Appointment of Counsel Standards. The Subcommittee also examined standards for the appointment 

and compensation of counsel in death penalty cases, including the American Bar Association Guidelines 

for the Appointment and Performance of Counsel in Death Penalty Cases (1989). 

Nature of Federal Death Penalty Cases. To better grasp the characteristics of federal death penalty 

practice, the Subcommittee reviewed training materials for defense lawyers prepared by the Federal 

Death Penalty Resource Counsel Project and materials collected and distributed by the Federal Judicial 

Center (FJC) to assist judges assigned to preside over federal death penalty cases. The Subcommittee 

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met with the three lawyers hired as Resource Counsel, and with the FJC staff assigned to develop a 

handbook on federal death penalty cases. The Subcommittee also reviewed an FJC newsletter entitled 

"Chambers to Chambers," several issues of which were devoted to the management of federal death 

penalty cases. 

Analyses of Costs of Representation. In order to focus the Subcommittee's inquiry and to refine the 

collection of empirical data, the Subcommittee surveyed a number of sources dealing with the costs of 

representation in general and the costs of representation in death penalty cases in particular. General 

analyses of defense costs included the Report of the Judicial Conference of the United States on the 

Federal Defender Program (1993) and the Economy Subcommittee of the Budget Committee of the 

Judicial Conference, Panel Attorney Total Hours Profiles (1996), and General Accounting Office, Cost 

of Providing Court-Appointed Attorneys is Rising, but Costs are Unclear (1995). The Subcommittee 

also reviewed sources dealing directly with death penalty cases, including: General Accounting Office, 

Limited Data Available on Costs of Death Sentences (1989); Philip J. Cook & Donna B. Slawson, The 

Costs of Processing Murder Cases in North Carolina (1993); and The Spangenberg Group, A Study of 

Representation in Capital Cases in Texas (1993). In addition, the Subcommittee reviewed the Report on 

Costs and Recommendations for the Control of Costs of the Defender Services Program prepared by 

Coopers & Lybrand Consulting for submission to Congress in February 1998. 

Economic Factors Related to Availability of Counsel. In order to assess the market forces at work, the 

Subcommittee obtained information concerning the rates paid to lawyers for work of a complexity 

similar to federal death penalty cases, including General Accounting Office, Information on the Federal 

Government's Use of Private Attorneys (1992) and Altman, Weil, Pensa, The 1997 Survey of Law Firm 

Economics. For a theoretical perspective on the market for legal services, the Subcommittee examined 

works such as: Pauline Holden & Steven Balkin, Quality and Cost Comparisons of Private Bar Indigent 

Defense Systems: Contract Versus Ordered Assigned Counsel, 76 J. L. & Criminology 176 (1985) and 

Herbert M. Kritzer, et al, The Impact of Fee Arrangements on Lawyers' Effort, 19 L. & Soc. Rev. 251 

(1985). 

Interviews. The Subcommittee's primary sources of qualitative information consisted of lengthy, indepth interviews with lawyers and judges who had participated in federal death penalty cases. The 

interviews were conducted by Subcommittee staff, who prepared detailed summaries promptly after 

completion of the interviews. The identity of the individuals interviewed was not revealed even to the 

judges of the Subcommittee. 

Judges. The Subcommittee conducted detailed interviews of a total of thirteen federal district judges. 

The Subcommittee also made use of information related to the management of federal death penalty 

cases provided at a "focus group" meeting on capital habeas corpus cases in March 1997. In order to 

encourage candor, the individuals interviewed were promised that their identities would remain 

confidential, and that remarks would not be attributed to them in the final report. Although follow-up 

questions varied, the Subcommittee used a standardized structured protocol to guide each interview. The 

Subcommittee took care to assure that the interviews captured a variety of judicial perspectives. The 

Subcommittee spoke to judges from all across the country, including one from each federal circuit. 

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Those interviewed included judges who had presided over cases that ended with lengthy capital trials, 

cases that ended in negotiated guilty pleas, and cases in which the Department of Justice declined to 

seek the death penalty. The judges included recent appointees to the bench, as well as more experienced 

judges. Some of the judges came from districts in states with long histories of post-Furman death penalty 

litigation, while others came from districts in states without the death penalty. 

Department of Justice. The Subcommittee contacted the Department of Justice to obtain permission to 

interview prosecutors in federal death penalty cases. Although the Department agreed to provide certain 

quantitative information, further described below, it declined to authorize the Subcommittee to interview 

prosecutors or to collect data from prosecutors by a questionnaire. 

Defense Counsel. The Subcommittee interviewed a total of 21 defense lawyers. In all, these lawyers had 

participated in 45 federal death penalty cases. As with the judges, interviews were conducted using a 

standardized interview protocol, and those interviewed were promised that their names would not be 

directly or indirectly disclosed. The interview subjects included lawyers with extensive death penalty 

experience, who had participated in several federal death penalty cases, as well as lawyers who until 

their first federal death penalty appointment had had no prior death penalty experience. The 

Subcommittee interviewed panel attorneys as well as staff attorneys in federal defender organizations. 

The Subcommittee also met with a group of federal defenders during a national conference. The lawyers 

interviewed had participated in a wide range of types of federal death penalty cases. Some of the cases 

had proceeded through penalty phase trials, while others had been resolved by a plea of guilty. The cases 

included some in which the Department of Justice did not authorize seeking a death sentence and some 

in which authorization to seek the death penalty was granted and later withdrawn. 

QUANTITATIVE DATA AND ANALYSIS. 

The costs of providing representation in federal death penalty cases include direct payments to 

individual lawyers appointed by the court (panel attorneys) and to persons providing services other than 

counsel at the request of a panel attorney, and resources committed to representation in federal death 

penalty cases by federal public defender and community defender organizations. The Subcommittee 

attempted to obtain and analyze data from both sources. 

CJA Payment Data. Payments to panel attorneys must be certified by counsel to be reasonable and 

necessary, and must be approved by the presiding judicial officer. Additionally, in cases filed after April 

24, 1996, payments for services other than counsel exceeding $7500 must also be approved by the chief 

judge of the circuit court of appeals or the chief judge's designee. Payments are supported by vouchers 

submitted by the panel attorney (CJA 30) or the non-attorney service provider (CJA 31). Some, but not 

all of the information recorded on the voucher forms is entered into a computer by the district court clerk 

and then transmitted to the Administrative Office. The Administrative Office maintains computerized 

data concerning the nature of the service provided, the hours billed (for attorneys this is divided between 

in and out of court time), the hourly rate, and, for cases after FY 1994, the type of work the attorney 

performed, broken down into 8 subcategories. 

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In order to assess the relationship between the raw cost data and the characteristics of federal death 

penalty cases developed from the interviews and review of documents, the Subcommittee created tables 

of information concerning the histories of federal death penalty cases. This "case demographics" data 

came from information developed by the Federal Death Penalty Resource Counsel Project and from the 

Department of Justice. By relating case demographics to cost information, the Subcommittee hoped to 

produce a clearer understanding of how the nature of the representation influenced costs. For example, 

the Subcommittee compared costs in cases in which the Department of Justice authorized a request for 

the death penalty with cases in which authorization was denied. The Subcommittee also examined the 

costs of authorized cases terminating in guilty pleas and those resolved at trial. 

In addition, for purposes of comparison, the Subcommittee obtained voucher information related to noncapital homicide cases. The Subcommittee compared average expenditures on various items in an effort 

to better understand how the requirements of representation in death penalty cases influenced costs. 

The quantitative data sources utilized by the Subcommittee have certain limitations. As the Economy 

Subcommittee of the Budget Committee of the Judicial Conference noted in a caveat to its 1996 report 

on panel attorney hours, the CJA payment system was designed only to process vouchers for payment, 

and not to serve as a management information system. Thus, this database does not include basic 

information on the disposition of a case, as a result of which cases that went to trial cannot be 

distinguished from those resolved by a guilty plea, despite the obvious relevance such differences would 

have in identifying the "typical" costs of representation. Similarly, the CJA payment system does not 

reflect factors such as the number of offenses charged or the number of codefendants joined in a case, 

although both may make a case more complicated and more costly. Also, the CJA payment system does 

not have an adequate mechanism to regularize the entry of names and other identifying information. As 

a result, small variations in the spelling of a defendant's name, for example, will lead the computer to 

treat the vouchers as if they relate to different cases. Average costs per representation computed without 

correcting this problem will be inaccurate because the case count will be artificially inflated. This 

creates a particularly serious problem in capital cases, because attorneys typically submit interim 

vouchers, rather than waiting until a case is entirely over to request payment. Because there are more 

vouchers submitted per case, there are likely to be more inconsistencies or variations in the way names 

(and even case numbers) are entered, and therefore more errors in the count. 

Moreover, although the CJA 30 form was revised in 1994 to collect additional details about the type of 

work an attorney performed during the time period covered by the voucher, the forms are not designed 

to address some of the questions about the costs of representation the Subcommittee wished to answer. It 

is not possible, for example, to reliably isolate costs associated with the Department of Justice death 

penalty authorization process from other costs. Nor, unfortunately, do the categories for "services other 

than counsel" on the CJA 31 form correlate precisely to the service categories of greatest importance in 

a study of federal capital cases (there is no category, for example, for mitigation specialists; payments to 

such experts therefore are included within the category of "other"). Finally, the Subcommittee learned 

that the CJA payment system does not reliably track federal death penalty cases. Although in theory 

vouchers for each defendant charged in an indictment with an offense that carries a potential punishment 

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of death should be coded "D2" (for a federal death penalty case), in fact some vouchers in death penalty 

cases are not coded properly. The Subcommittee could not, therefore, identify the universe of federal 

death penalty cases by selecting "D2" vouchers." 

The Subcommittee attempted to address the deficiencies in the CJA payment data in several ways. In 

order to obtain a sample of federal death penalty cases which included both unauthorized as well as 

authorized cases, the Subcommittee obtained a case list from the Federal Death Penalty Resource 

Counsel Project, which tracks federal death penalty cases across the country.(1) This list included all 

cases in which the Department of Justice authorized a death penalty prosecution, as well as a number of 

cases in which the Department of Justice declined to authorize seeking the death penalty. Only cases in 

which CJA payment information had been placed under seal were excluded from this list. The 

Subcommittee then obtained all CJA payments relating to this list of cases. Administrative Office staff 

reviewed the payment information data, making revisions as needed to produce consistent name and 

case number fields, to assure an accurate count of representations for purposes of averaging. The 

resulting data were imported into a database. A small number of cases which were unrepresentative for 

various reasons were removed from the sample. For example, vouchers billed for appellate or postconviction representation were eliminated, because these could not validly be compared to costs at the 

initial trial stage.(2) Also eliminated were cases in which the costs of representation were primarily borne 

by a federal defender organization, because in such cases the vouchers submitted by the panel attorney 

or other service providers would not have reflected the actual cost of representation, but rather would 

have understated it. 

The Subcommittee also reviewed case disposition information from the Administrative Office SARD 

database, but found too many reliability problems to make these data useful. 

Federal Defender Hours. Except for a very small number of cases in which representation was 

provided by retained counsel (the Subcommittee is aware of only one federal death penalty case handled 

entirely by a retained lawyer; in a small number of other cases a retained lawyer provided limited 

services), in cases not assigned to panel attorneys representation is provided by Federal Defender 

Organizations (FDOs), which may be either Federal Public Defender Organizations (FPDs) or 

Community Defender Organizations (CDOs). Attorneys in FDOs are salaried employees and do not 

submit bills by the hour, however they do keep a rough account of their hours using a system called 

"Timekeeper." The Subcommittee obtained records from the Timekeeper system for cases coded as 

federal death penalty cases, however the number of FDO cases identified in the Timekeeper database 

was so small, and the reliability of the hours so uncertain, that the Subcommittee limited itself to the 

analyses of federal defender hours previously performed by Coopers & Lybrand. Coopers & Lybrand 

also developed a methodology for estimating the imputed hourly costs of FDO attorneys, paralegals and 

investigators. 

Department of Justice Data. The Department of Justice provided the Subcommittee with a list of 

federal death penalty cases by status as of December 12, 1997. The Department also gathered cost 

information from local U.S. Attorney's Offices concerning 24 completed federal death penalty 

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prosecutions in which the Attorney General had authorized seeking the death penalty. The 24 cases 

included cases resolved by guilty plea as well as trial. Each case may involve one or more defendants, 

however the Department did not provide information concerning the number of defendants, case 

disposition, or the statutory basis for the prosecution. 

 

Footnotes 

1. The Subcommittee subsequently obtained a longer list of cases from the Department of Justice. This list 

included 107 authorized cases, and 162 cases reviewed by the Attorney General but never authorized. Even this 

list was not complete for the entire period, because it contained only cases reviewed, but not authorized after 

January 1995. 

2. There were too few vouchers associated with appellate or post-conviction representation to allow meaningful 

analyses of these costs separately from trial. 

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