Costs of Federal Death Penalty Scrutinized


The federal Judicial Conference Committee on Defender Services recently released a preliminary Update on the Cost, Quality, and Availability of Defense Representation in Federal Death Penalty Cases focusing on the cost of legal representation in federal death penalty cases.

Analyzing data from cases started and completed between 1998 and 2004, when the hourly rate for defense counsel was $125, the committee found that low defense spending correlated with a higher likelihood of a death sentence. Defendants who received the least amount of attorney and expert time, and whose defense representation thus cost the least, faced a higher probability of receiving a death sentence. Specifically, individuals whose defense received less than $320,000 in combined attorney and expert assistance – the lowest one-third of federal capital trials – had a 44% chance of being sentenced to death at trial. Individuals whose total representation costs were above that amount – the remaining two-thirds of defendants – had a 19% chance of being sentenced to death. Defendants in the low-cost group thus were more than twice as likely to be sentenced to death.

The report also noted that, in panel appointments, median total case cost for white defendants tried for capital offenses against white female victims was $631,382. By contrast, median total case costs for non-white defendants tried for capital offenses against white female victims were $248,477.

Cases in which the prosecutor is authorized to seek the death penalty are substantially more expensive than non-authorized cases. The median amount of $353,185 for authorized cases indicates that cases in which a capital prosecution was authorized cost seven times more than those death-eligible cases that were not authorized. Similar to total case cost, the median expense for an attorney’s time was significantly greater – 6.5 times more – in authorized cases than in death-eligible, non-authorized prosecutions.