NEW RESOURCES: Final Report on the Death Penalty to the Washington State Bar Association

The Death Penalty Subcommittee of the Committee on Public Defense of the Washington State Bar has prepared a report on the state's death penalty that will be submitted to the Bar Association's Board of Governors in early 2007.  The Subcommittee was formed to examine the costs of the state's death penalty and to recommend whether the death penalty should be continued, given the expenses and the state's experience in carrying out death sentences.  The Death Penalty Subcommittee was made up of supporters and opponents of the death penalty, all with extensive experience with the criminal justice system.

The report noted that since the death penalty was reinstated in Washington in 1981, there have been 254 death eligible cases.  Of these, death notices were filed by the prosecution in 79 cases (31.1%).  Death sentences were imposed in 30 cases, or 11.8% of the death eligible cases.  Twenty-three cases have completed appellate review, and 4 inmates have been executed.  Three of the four inmates executed waived part of their appeals, thereby hastening their executions.  The other 19 cases were reversed, almost all resulting in a sentence of life without parole.

With respect to the costs of the death penalty, the report concluded:

  • At the trial level, death penalty cases are estimated to generate roughly $470,000 inadditional costs to the prosecution and defense over the cost of trying the same case as an aggravated murder without the death penalty and costs of $47,000 to $70,000 for court personnel.
  • On direct appeal, the cost of appellate defense averages $100,000 more in death penalty cases, than in non-death penalty murder cases.
  • Personal restraint petitions filed in death penalty cases on average cost an additional$137,000 in public defense costs.

The Subcommittee offered a series of recommendations regarding the state's death penalty, but declined to state a recommendation on whether it should be continued:

1. The State should provide full funding for all costs of prosecution and defense of
aggravated murder cases. State funding should include programs and policies to
assure high quality representation. The State should investigate the best model for
delivery of effective and efficient representation, including the possibility of a
statewide public defender agency for aggravated murder cases.
2. The defense team in a death penalty case should include, at a minimum, the two
attorneys appointed pursuant to SPRC 2, a mitigation specialist and an
investigator. Psychiatrists, psychologists and other experts and support personnel
should be added as needed.
3. The funding agreement or budget for a public defender agency should provide for
caseload adjustment when a lawyer is appointed to a death penalty case, so that the
attorney may be able to devote the time and attention necessary to provide
competent defense in the death penalty case. The caseload adjustment may
involve hiring additional lawyers by the agency or a reduction in cases assigned to
the agency.
4. Flat fees, caps on compensation and lump-sum contracts for trial attorneys are
improper in death penalty cases.
5. Private practice attorneys appointed in death penalty cases should be fully
compensated for actual time and service performed at a reasonable hourly rate
with no distinction between rates for services performed in court and out of court.
Periodic billing and payment should be available.
6. The Subcommittee’s study has been limited in scope, and there are additional
topics concerning the death penalty which could be addressed in a comprehensive
study; therefore, the Subcommittee recommends that a separate task force created
by the Legislature should be dedicated to a multi-disciplinary examination of the
death penalty.
7. The Administrative Office of the Courts should provide capital case training and
resources for judges, the capital trial desk book should be kept current, and a
judicial mentorship program in capital cases should be established.
8. The Subcommittee recommends that the Washington Supreme Court authorize the
Capital Counsel Committee to create and maintain two lists of attorneys qualified
to represent a capital defendant in the trial court. The first list should include those
individuals who have demonstrated their qualifications, as defined in SPRC 2, to
serve as “first chair” in a capital case. The second list should include those
individuals who have not yet satisfied the requirements to serve as “first chair,”
but who are qualified to serve as “second chair” and who are interested in gaining
the experience necessary to be placed on the “first chair” list. Trial courts may,
but need not, appoint an attorney from the “second chair” list.
In addition, the Subcommittee recommends that the Washington Supreme Court
direct that the Capital Counsel Committee, when conducting its initial and its
yearly review of applicants, solicit information from judges before whom the
applicant has practiced, opposing counsel, co-counsel, peers and supervisors. The
sub-committee recommends that the Washington Supreme Court direct that the
Capital Counsel Committee pay particular attention to any declarations,
allegations, or judicial findings of ineffective assistance of counsel.
9. The Death Penalty Subcommittee recognizes that no single statewide rate can
account for the various factors that should be taken into consideration to determine
compensation for lead counsel in a death penalty case at trial level. The hourly rate
established for lead counsel in a particular case should be based on the
circumstances of the case and the attorney being appointed, including the
following factors: the anticipated time and labor required in the case, the
complexity of the case, the skill and experience required to provide adequate legal
representation, the attorney's overhead expenses and the exclusion of other work
by the attorney during the case. The subcommittee finds that the federal rate of
$163.00 (in 2006 dollars) is a reasonable rate of compensation for private lawyers
appointed as lead defense counsel in death penalty cases. The subcommittee
recommends that under no circumstance should the hourly rate for lead counsel
appointed in a death penalty case be less than $125.00 per hour (in 2006 dollars).

(FINAL REPORT OF THE DEATH PENALTY SUBCOMMITTEE OF THE COMMITTEE ON PUBLIC DEFENSE, Washington State Bar Association, December 2006).  See Costs and Representation.