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March 31, 2007

The real capital problem: seeking death on the cheap

Though my views on the death penalty are always evolving, I am always sure that many flaws with the modern administration of the death penalty stem from the desire of many jurisdictions to operate a capital system on the cheap.  This interesting article from the Los Angeles Times spotlights this reality in the context of Georgia's recent debate over capital defense funding.  Here are highlights:

When Georgia instituted a statewide public defender system in 2005, human rights groups praised it as a milestone in ensuring that poor criminal defendants received their constitutional right to a fair trial. Until then, counties determined how indigent people would be represented. In some counties, the courts operated like assembly lines, with defendants pleading guilty after talking with their appointed lawyers for a few minutes.

But some people accuse the Georgia Public Defender Standards Council, which runs the system, of spending too much time and money on indigent people. One defendant has provoked particular anger: Brian Nichols, the rape suspect accused of escaping from an Atlanta courthouse in 2005 and killing a judge, a court reporter, a sheriff's deputy and a U.S. customs agent. Nichols' defense has cost $1.4 million, and the trial has not begun.  Last week, Superior Court Judge Hilton Fuller postponed the trial until Sept. 10 because the public defender system had run out of money. Almost all of the council's 75 capital cases are on hold.

The Nichols case did not create the funding crisis. A technical glitch in state law left the council with a shortfall of about $10 million in the state budget.  But the Nichols case, as one of the most expensive death penalty trials in Georgia history, has exacerbated concerns about criminal defense spending....

Though many legislators fear the Nichols case could set a precedent for death penalty cases, legal experts say it's a rarity. Fuller, who has appointed four lawyers to the defense and approved more funding for a mental health expert, defends the spending as necessary to ensure a fair trial, noting that the state has charged Nichols with 54 felony counts and appointed five lawyers to the prosecution.

Some defense lawyers say legislators don't complain about prosecution costs. In the Nichols case, experts estimate the prosecution will spend twice as much as the defense. "No one is telling the district attorney he can only spend a certain amount on a death penalty case," West said.

Others say the Nichols case wouldn't cost so much if prosecutors had not sought the death penalty. Paul Howard, Fulton County's district attorney, rejected an offer from Nichols' lawyers for a guilty plea in exchange for a life sentence. "People who are very concerned about the cost of the defense still believe Nichols should get the death penalty," [Stephen] Bright said. "They can't have it both ways."

Some related posts on the costs of capital cases:

March 31, 2007 at 01:15 PM | Permalink


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The problem, of course, is the out-of-control capital punishment law.

Query: if there are a finite amount of resources, shouldn't guilt/innocence be far more important than death/no death?

There is no way Nichols defense should be in seven figures.

Posted by: | Mar 31, 2007 1:23:05 PM

The above comment makes three points. Some of them can be responded to, some of them cannot. Taking them in reverse order

First, “There is no way Nichols defense should be in seven figures.” Assumes its own conclusion, so it isn’t much of a point. But, because the poster lacks the perspective of a lawyer, I maybe it is worth an attempt. “Seven figures” is not that high a number. Indeed, quite a bit of litigation costs over “one million dollars.” Sometimes the “one million” mark is reached just in discovery. Considering that attorneys routinely bill at $500 per hour, one million is reached in just 2000 hours, which is one man-year. Expert often charge even more. Add to that the cost organization and travel can make the $1,000,000 mark come faster. In fact, I am surprised that more litigation doesn’t cost this much. In the civil context, some judges seek to limit discovery by providing a discovery budget (which places limits on the costs that each side can put on each other), but these “budgets” are based on the amount of money at stake. Here, we are talking about someone’s life, which people have a difficult time quantifying. (Strangely, if we were to quantify it, perhaps we should allow him to raise money to buy his freedom.) Therefore, it seems that the statement that “there is no way…” is problematic.

If you would like to learn more about the price of attorneys fees, reading bankruptcy (or MDL) cases is a good place to start. See, e.g., In re Diet Drugs (Phentermine/Fenfluramine/Dexfenflurammine) Products Liability Litigation, 401 F.3d 143, 167 (3d Cir. 2005) (“The District Court described the task of allocating $160 million in counsel fees as ‘herculean’”).

The second point regarding “If there are a finite amount of resources, shouldn't guilt/innocence be far more important than death/no death?” There is some merit to this point, but in this case, the prosecutor has insisted on the death penalty, and also has indicated that any information from the “guilt phase” of the trial will be used in the “penalty” phase. Therefore, your beef is probably with the prosecutor.

“The problem, of course, is the out-of-control capital punishment law.” I don’t see it so much as a legal problem, but rather with the drive of some legislators and prosecutors to execute people. Eliminating the death penalty would eliminate many of these problems. In fact, the cost of administering most laws would go down if legislators simply eliminated the laws themselves. But, since Americans (that’s me) want people in jail, and think that the percentage of the country in jail is too low, it is going to cost us.

Professor Berman proposes an alternative route: set the amount that prosecutors can spend in advance, and meticulously track all economic benefits prosecutors get. This way, they will have to decide, in advance, what it is really worth doing.

The other suggestion made has been to require local jurisdictions to post a bond before seeking the death penalty, if a budget other than local tax money is tapped. This way, if their wishes are ever disturbed by a jury or appellate court, the innocent taxpayers outside that jurisdiction won’t be hurt by the misguided decision of the prosecutor.

Posted by: S.cotus | Apr 2, 2007 2:44:55 PM

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