Federal Judicial Center -- 2004
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        D      Managing and Controlling Costs
        D-1  Attorneys’ fees
        D-2  Funds for experts and investigators
        D-3  Informing counsel about expectations; case budgeting

D    Managing and Controlling Costs

Cases carrying a possible death penalty—particularly those that go to trial—are very costly to the courts, even relative to other complex criminal cases. After analyzing data on a sample of cases in which the Attorney General authorized seeking the death penalty during the period 1990–1997, the Spencer Committee estimated that the average cost per representation was $218,112, as compared with an average of $55,772 for death-penalty-eligible cases in which the death penalty was not sought by the government. For death-penalty cases that went to trial, the average cost per representation was $269,139.

As might be expected, the largest categories of costs for capital cases are attorneys’ fees and funds for experts or investigators. This section discusses approaches for keeping costs in these areas and others to a reasonable level while allowing for an adequate defense, by working with attorneys to develop a case budget and by monitoring and managing these aspects of the case.

D-1    Attorneys’ fees

[Note: Under the Fiscal Year 2005 Omnibus Appropriations Act, the maximum hourly compensation rate for counsel in capital cases was increased from $125 to $160. The new maximum rate applies to work performed on or after Feb. 1, 2005. The rate was further raised to $163 effective Jan. 1, 2006, under a cost-of-living increase pursuant to 21 USC 848(q)(10(A). This section of the guide and accompanying appendices are being revised to reflect these changes.]

The usual fee for counsel in the cases we reviewed was $125 per hour. This rate is now also the statutory maximum in capital cases.

a. Statutory provisions and Judicial Conference policies. By statute, attorneys’ fees in cases in which the government intends to or may seek the death penalty are not subject to the Criminal Justice Act (CJA) maximums that apply to other federal criminal cases. [Footnote 11] 18 USC 848(q)(10)(A). Until 1996, district judges with death-penalty cases were given broad authority to determine an amount "reasonably necessary" to obtain qualified counsel and services. Judicial Conference guidelines urged judges to limit the hourly rate for attorney compensation to "between $75 and $125 per hour for both incourt and out-of-court time" (7 Guide to Judiciary Policies and Procedures, ch. VI, para. 6.02(B)(1)), and a memorandum from the Executive Committee of the Judicial Conference in November 1995 further asked judges "in these times of scarce resources" to adhere to the recommended rates. Memorandum from the Executive Comm. of the Judicial Conf. of the U.S. to All U.S. Judges (Nov. 27, 1995).

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, 21 USC 848(q)(10)(A), set new limits on compensation of counsel in federal death-penalty cases. For cases commenced on or after April 24, 1996, the rate of compensation for counsel "shall not exceed" $125 per hour for incourt and out-of-court time. 21 USC 848(q)(10)(A). The Judicial Conference is authorized to raise this cap, subject to certain restrictions, not less than three years after the enactment of the AEDPA (i.e., April 24, 1999).

The Spencer Committee Report did not set forth a recommended hourly rate for compensation of counsel in death-penalty cases, but stated that the rate "should be maintained at a level sufficient to assure the appointment of attorneys who are appropriately qualified to undertake such representation." Spencer Committee Report, Recommendation 1e, at A-1 to A-2. In commentary, the subcommittee pointed out that "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." Id. at 43. Further commentary indicated that the subcommittee believed the current statutory maximum of $125 an hour was adequate, but that the figure should be reviewed at least every three years "to insure that it remains sufficient in light of inflation and other factors." Id.

Overall attorney compensation amounts in capital cases are not limited by statute or Judicial Conference policy. 7 Guide to Judiciary Policies and Procedures, ch. VI, para. 6.02(A).

b. Judges’ practices. One judge interviewed by FJC staff set a cap on overall attorneys’ fees for pretrial work in his death-penalty case. He limited pretrial fees (including fees for associate counsel and paralegals) to $250,000 each for two defendants who each had two appointed counsel, and to $175,000 each for two defendants who each had one appointed counsel. None of the defendants in that case went to trial, so it is unclear whether the defendants would have been able to keep their spending below the caps through the entire pretrial period. Other judges did not set caps, believing it was too difficult to tell at the outset of the case what a reasonable total would be.

c. Timing of attorney-compensation determination. As mentioned previously, the government’s notice of intent to seek the death penalty is often not filed until many days after the indictment charging a defendant with a death-penalty-eligible offense. Judges and attorneys we spoke with pointed out, however, that if there appears to be any substantial risk that the government will seek the death penalty, defense counsel must proceed as if the case is a capital case even before the notice of intent is filed, because of the length of time required for a mitigation investigation, the results of which might be needed in the penalty phase. In addition, defense attorneys have an opportunity to present information to the government prior to its decision on whether to pursue the death penalty, and preparation for this meeting would include development of the mitigating factors that could be argued at the sentencing hearing. Thus, courts, particularly in more recent cases, have generally approved the $125 hourly rate for counsel from the outset of a case.

Several recommendations of the Spencer Committee recognized and addressed the problem of late identification of a case as one in which the government will seek the death penalty. First, the committee encouraged DOJ to adopt a "fast track" review of cases involving death-penalty-eligible defendants when there is a high probability the death penalty will not be sought. Spencer Committee Report, Recommendation 5a, at A-3. Second, the committee encouraged courts to exercise their supervisory powers to ensure that the death-penalty authorization process proceeds quickly. Id., Recommendation 5b, at A-3. Finally, with respect to its general recommendation to use case budgeting in capital cases (see infra section II.D.3), the committee recommended that separate litigation budgets be prepared for work performed before and after deathpenalty authorization. 7 Guide to Judiciary Policies and Procedures, ch. VI, para. 6.02(F)(3)(C).

d. Number and status of attorneys allowed to bill hours. The $125 hourly rate mentioned above has been paid to attorneys who are appointed as lead or second counsel in a death-penalty case. Questions arise about the extent to which such counsel can and should delegate work to associates or paralegals, and at what rate these more junior people should be paid. When more junior attorneys were involved in the cases we reviewed, judges generally specified the hourly rates at which those attorneys would be paid, and these rates ranged from $75 to $105 per hour.

In one death-penalty case, a defense attorney filed a motion asking to use other members of his firm to work on the case. In an order, the judge said that, to allow maximum flexibility, he would allow other lawyers to bill time only if it was time that the lead attorney would otherwise have billed himself. Thus, additional attorneys could not be paid for additional work, but they could be paid for work that the lead attorney would have otherwise had to do himself. This approach is consistent with Judicial Conference policy. 7 Guide to Judiciary Policies and Procedures, ch. VI, para. 6.01(A)(1).

e. Reimbursable expenses. As suggested in the Guide to Judiciary Policies and Procedures (vol. 7, ch. VI, para. 6.03(D)), judges in the cases we reviewed issued a memorandum order that, among other things, set a dollar limit for reimbursable expenses beyond which court approval was necessary. The limits in the cases we reviewed ranged from $150 to $500. As in other CJA cases, common reimbursable expenses include travel expenses, telephone toll calls, and photocopying. In addition to travel associated with case preparation and investigation, defense counsel might be called upon to travel to Washington, D.C., to make a presentation at DOJ regarding whether the death penalty should be pursued. Attorneys in death-penalty proceedings should use a separate form, CJA Form 30, for claiming compensation and reimbursement expenses.

D-2    Funds for experts and investigators

According to the Spencer Committee Report, funding for experts and investigators constitutes about 19% of the total cost of a capital case. For a sample of death-penalty cases examined by the committee, the average amount of non-attorney compensation (primarily funding for experts and investigators) was $53,143 for capital cases that went to trial. Most of this expense was incurred even if the case did not go to trial (the average compensation for experts and investigators for these cases was $51,889).

a. Statutory provisions and Judicial Conference policies. Like attorneys’ fees, funds for experts and investigators in capital cases are not subject to the same limitations as they are in non-capital cases. For cases commenced prior to April 24, 1996, the presiding judicial officer may authorize the defendant’s counsel to obtain investigative, expert, or other services upon a finding that such services are "reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or sentence," and such a finding may be made based on ex parte proceedings. 7 Guide to Judiciary Policies and Procedures, ch. VI, para. 6.03(A).

For cases commenced after April 24, 1996, a showing by counsel of the need for confidentiality is required before requests for investigative, expert, or other services can be considered ex parte. According to information from the Federal Death Penalty Resource Counsel, as of October 19, 2000, no requests for ex parte hearings on this issue have been denied.

Pursuant to 21 USC 848(q)(10)(B), as modified by the AEDPA, payment for expert and investigative services in excess of $7,500 per case must be certified by the district court "as necessary to provide fair compensation for services of an unusual char acter or duration," and must be further approved by the chief judge of the circuit or another active circuit judge designated by the chief judge. As discussed above, according to data compiled by the Spencer Committee, this $7,500 threshold amount represents only a portion of the average total cost of such investigative and expert services in a federal capital case. Thus, the $7,500 threshold does not, as a practical matter, represent a presumptive limit on expert and investigative costs, but rather establishes a method of cost review applicable to all but the initial $7,500 of these costs in capital cases.

As it does for attorney compensation, Judicial Conference policy urges the court to permit interim payment of compensation to experts in capital cases, and a separate voucher form, CJA Form 31, is used. Judges should act upon these claims for compensation within thirty days, absent extraordinary circumstances. 7 Guide to Judiciary Policies and Procedures, ch. VI, para. 6.03(D)–(F).

b. Judges’ practices. In the cases we reviewed, most judges set a cap in advance on the total amount of money or total number of hours for which an expert could be paid. Any payment to be incurred beyond that amount required separate approval from the court. One judge explained that this approach worked well, because it "put the onus on [the defense] to explain that they needed more, and why."

In setting fees, judges, where possible, looked to what an expert had been paid for testimony in previous cases. Most of the expert types—such as psychologists or general investigators—were not unique to capital cases, so judges had some idea of what their normal rates were. The most frequent expert used in capital cases, however, is the mitigation specialist, a type of expert not seen in other criminal cases.

Mitigation specialists in the cases we reviewed generally were paid from $35 to $75 per hour, and spent from 100 to 200 hours on the case. These findings are similar to data reported by the Spencer Committee, which reflected hourly rates for mitigation specialists that ranged from $35 to $80 per hour. Spencer Committee Report at 25 n.38. In one case we reviewed, the judge asked for additional information because she thought the rate requested ($70 per hour) and number of hours estimated (400–500) were too high, particularly because the proposed mitigation expert did not have post– high school education. She asked the defense to provide information about whether this hourly rate had been approved for the expert in other cases, and she set an initial limit of 200 hours of work, requiring further authorization for additional work.

The Spencer Committee recommends that counsel be encouraged to negotiate reduced hourly rates for experts in death-penalty cases. Id., Recommendation 7b, at A-4. In its report, it points out that many experts are willing to accept fees lower than their customary hourly rates when providing services for a capital defendant. In addition, defense counsel should contain costs relating to experts as much as possible, in part by obtaining government rates for any travel by the experts.

Experts in the cases we reviewed generally submitted vouchers for payment every one or two months, and they were required to include detailed and itemized time statements with their vouchers.

D-3    Informing counsel about expectations; case budgeting

It is important for appointed counsel to understand the judge’s expectations regarding reasonable expenditures and overall allowable costs. In the cases we reviewed, judges generally sent a memorandum order to counsel, as suggested by Judicial Conference policy, [Footnote12] covering the time schedule for submission of vouchers, allowable reimbursable expenses and the rate at which they would be reimbursed, and additional guidelines about expenses that could be claimed. One judge, in addition to the standard memorandum order, sent a letter to counsel setting forth the factors she considered significant in evaluating the expense of representation. This judge had had experience with death-penalty litigation prior to becoming a judge, and she was able to point out, for example, that there were a number of qualified mitigation specialists in the state in which she sat and that therefore she expected counsel to be able to employ a local specialist without incurring additional expenses for one who had to travel from outside the state.

One way to formalize the expectations of both the judge and counsel is for counsel to develop a case budget that is approved by the judge in advance. This tool is being used increasingly in capital habeas cases, and its use in those cases is encouraged by Judicial Conference policy. 7 Guide to Judiciary Policies and Procedures, ch. VI, para. 6.02(F). Recently, acting on a recommendation of the Spencer Committee, the Judicial Conference modified its policies to encourage courts to require appointed counsel in federal death-penalty prosecutions to submit proposed litigation budgets for court approval.

Because there is often a good deal of time from the issuance of the indictment to DOJ’s determination regarding whether it will seek the death penalty, the Judicial Conference recommends dividing the budgeting process into two stages. In the first stage, defense counsel should submit a litigation budget that is "the best preliminary estimate that can be made of the cost of all services (counsel, expert, investigative, and other) likely to be needed" before DOJ decides whether it will seek the death penalty. 7 Guide to Judiciary Policies and Procedures, ch. VI, para. 6.02(F)(3)(c)(i). If the death penalty is authorized by DOJ, defense counsel should submit a further budget for services that will be needed through trial of the guilt and penalty phases of the case. Id. ch. VI, para. 6.02(F)(3)(c)(ii). The budget should be incorporated into a sealed initial pretrial order that reflects the understanding of the court and counsel. Id. ch. VI, para 6.02(F)(3). In addition to preliminary cost estimates, this order should contain

• the hourly rate at which counsel will be compensated;

• an agreement that counsel will advise the court of significant changes to the estimate;

• an agreement on a date for a subsequent ex parte pretrial conference on the case budget;

• the procedure and schedule for submission, review, and payment of interim vouchers;

• the form in which claims for compensation and reimbursement should be submitted, and the matters they should address; and

• the authorization and payment for investigative, expert, and other services. Id. ch. VI, para. 6.02(F)(3)(a), (d)–(h).

According to the Judicial Conference, "[c]ase budgets should be submitted ex parte and should be filed and maintained under seal." Id. ch. VI, para. 6.02(F). As one judge pointed out, the lack of an adversary process related to this procedure does make it difficult to determine the reasonableness of requests; the alternative, however, would reveal defense strategy to the prosecution, as the case budget requires that defense counsel lay out the overall litigation strategy for the case.

The Spencer Committee recommends that defense counsel and judges seek advice from the Administrative Office and the Federal Death Penalty Resource Counsel, as appropriate, in preparing and reviewing case budgets. Spencer Committee Report, Recommendation 9(d), at A-5.

FOOTNOTES:

11     See section II.B.3 supra for a discussion of the timing of the government’s decision regarding whether to seek the death penalty.

12     Note that the suggested procedures and memorandum order for death-penalty cases are different from those for non-death-penalty cases. See 7 Guide to Judiciary Policies and Procedures, app. E.