Defense Attorney Fees and the Death Penalty

Have you ever heard someone say that the death penalty is more expensive than life in prison? I had heard that rumor dozens of times, and it always intrigued me. So in this post, I’m going to examine that piece of popular wisdom to see if it holds any water.

If you add up the cost of keeping a prisoner, it comes out to roughly $47,000 per prisoner per year. This includes housing, heating, feeding, protecting, and all of the other costs.  If you multiply this by the average length of a life prison sentence (for purposes of this calculation, we’ll use 30 years), the product comes out to $1,410,000.  That’s a lot of dough!

So we ask, how could administering the death penalty possibly cost more than $1.4 million?  According to a recent article in Courrier Press,  the principal cost associated with the death penalty is not actually administering the penalty, but rather, arriving at the penalty.  That is, the principal cost is actually attorney fees for the criminal defense attorney.  To better understand this claim, let’s bust out the old Constitution and see what it says.  The Sixth Amendment of the Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

This clause was originally interpreted to mean that someone should not be prohibited from having defense counsel.  Beginning in 1932 with Powell v. Alabama, 287 U.S. 45, the Supreme Court began a process of expanding the interpretation of this clause to mean that in capital cases (cases where the death penalty is sought), if the defendant cannot afford to pay attorney fees for defense counsel, the state must provide an attorney for him or her.

As it happens, the type of person who stands trial for capital punishment tends not to be the type with a good financial advisor, so more often than not, the Powell ruling comes into play, and the state is required to appoint an attorney to defend the accused, and of course, pay the attorney fees that are associated with that defense.  Moreover, under the rules of criminal procedure, the more serious the charges, the more work a defense attorney has to do in order to mount a compelling defense.  And the most work the attorney has to do, the more hours he will have to spend, and the higher the attorney fees will be.

Thus, we have the conceptual underpinnings of the theory that the prohibitively expensive price tag associated with the death penalty is actually due to attorney fees.  But does that theory hold water?  I’m not so sure.

In most states, when an attorney is appointed by the state under the Sixth Amendment, the fees that he is allowed to charge are actually set by statute.  In most states, the permissible amount is around $100 per hour.  As you are probably aware from reading other articles on our site, $100 per hour is an uncommonly low rate for most criminal defense attorney fees.  So at that rate, for our theory to hold true, the average 6th Amendment defense lawyer would have to be spending an awful lot of time on each case.  Let’s look at the math.

Assume, for argument sake, that 2/3 of the cost of the death penalty is associated with administrative costs (performing the execution, physician oversight, etc.), and 1/3 is due to the criminal defense attorney fees.  That would mean that the legal bill is roughly $500,000.  At $100 per hour, that would mean the attorney is working 5,000 hours on one case.  Even if the attorney worked 10 hours per day, worked on no other cases, and took no holidays or weekends, it would still take 500 days to accumulate that many hours.  That’s 1.3 years of non-stop work.  While it is quite possible that a capital punishment type trial could last that long, most to the time is not actually spent rendering legal services.  Rather, most of the time is spent waiting for procedural barriers to clear.  Moreover, even when a capital case goes that long, it is extremely rare and unlikely that the attorney would decline to take other clients for 1.3 years.  And finally, court appointed attorneys could really earn $500,000 in legal fees, don’t you think everyone with a legal degree would be rushing to defend the indigent?

Viewed from this perspective, it seems to me that the rumor doesn’t hold water.  I find it hard to believe that the high cost of the death penalty is due to attorney fees for state appointed criminal defense attorneys.  Now, whether the other rumor (that the cost of the death penalty exceeds the cost of life imprisonment) is another matter…

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