Rates of Compensation for Court-Appointed Counsel in Capital Cases at Trial A State-By-State Overview, 1999 November 1999

Transcription

1 Rates of Compensation for Court-Appointed Counsel in Capital Cases at Trial A State-By-State Overview, 1999 Prepared for: Prepared by: The American Bar Association Bar Information Program Marea L. Beeman Elizabeth A. Dever Dorothy M. Chan

2 Rates of Compensation for Court-Appointed Counsel in Capital Cases at Trial A State-By-State Overview Introduction Since 1996, has produced a table detailing compensation rates paid to court-appointed counsel who handle death penalty trial cases in the 38 states which permit imposition of the death penalty. The first table was published in July 1996, and the second, along with an accompanying narrative, was produced in April During the summer of 1999, we again updated the information, in order to provide the most accurate data regarding the rates of compensation, as well as information regarding how representation is provided in capital cases. This report was prepared on behalf of the American Bar Association s Bar Information Program (BIP), as were the two previous reports. The table which accompanies this narrative reflects the information collected during the course of our survey. As we did in the previous report, we have included citations to the authority for the compensation rates and/or maximum fees. We have also provided information on the primary system each state uses for delivery of indigent defense services for capital trials. "Primary indigent defense system" refers to the way in which the majority of cases - those which do not involve conflicts of interest or public defender overload - are handled. This information reveals that in many states and counties, representation in most capital trial cases is provided by state or local public defender offices (for example, in Colorado, Connecticut, Delaware, Florida and Missouri). In these jurisdictions, the use of court-appointed counsel occurs far less often. When reviewing the accompanying table, it is important to keep in mind that the hourly compensation rate information pertains only to court-appointed counsel, not to public defenders (who are on salary) or contract defenders (who typically negotiate a flat or case by case fee for their services). In a number of states, accurate data regarding appointed counsel compensation rates in capital trial cases is difficult to obtain. This difficulty is most pronounced in those states in which the judge establishes the compensation rate in accordance with statutory provisions that "reasonable compensation" be paid. In these states, compensation rates often vary significantly throughout the state. Unfortunately, none of the "reasonable compensation" states maintains

3 centralized records on precise amounts court-appointed counsel are paid. To collect this information, in each "reasonable compensation" state, we interviewed public defenders, court administrators, private counsel and/or others familiar with the jurisdiction's indigent defense system. The numbers reflected in the accompanying table are representative of the information provided to us through these interviews. The previous update, in 1998, revealed two clear trends, one toward the creation of specialized statewide capital trial units, the other towards increased compensation rates for courtappointed counsel in capital trial cases. Eight states - Connecticut, Georgia, Kansas, Kentucky, Missouri, Nebraska, New York and Oklahoma - along with a number of circuit public defender offices in Florida, have separate units which handle and/or provide support for private counsel handling death penalty cases. Undoubtedly, the availability of a specialized support organization encourages private attorneys to take on capital trial cases. The trend toward increased rates of compensation also serves to increase the number of qualified attorneys willing to handle capital trial cases. Since our last survey, hourly rates have been increased in four states (Alabama, Colorado, Connecticut and Georgia), and maximum compensation amounts have been eliminated or raised in three states (Alabama, Florida and Ohio). This trend reflects both a growing understanding of the complexities of providing effective representation in capital trial cases and a recognition that improved compensation rates will attract qualified counsel who are willing to take on the demands of a capital case. It is important to mention that reimbursement vouchers submitted by assigned counsel are sometimes cut by the judges responsible for approving payment. This practice effectively reduces the authorized hourly rate or per-case maximum. The 1992 Interim Report of the Committee to Review the Criminal Justice Act 1 addressed this practice, pointing out that when a judge approves a fee that is less than the amount sought, counsel may - rightly or wrongly - 1 The report was written by a nine-member committee, appointed by Chief Justice William H. Rehnquist to conduct a comprehensive analysis of the CJA program and to recommend appropriate legislative, administrative and procedural changes to the United States Judicial Conference. 2

4 perceive the reduction as an "admonition, rebuke or retaliation for defense tactics." Judges, however, may sometimes feel justified in cutting vouchers they view as excessive, relying on their own view of "what a case is worth." The Committee addressed this issue by recommending that a local administrator review interim and final vouchers and certify final payments. The Committee's report further recommended implementing a procedure to notify an attorney of the intent to reduce a payment to him or her and the reason for the reduction. In such a system, the attorney would have the opportunity to appeal a decision to reduce a voucher and judges would have the opportunity to comment on the administrator's initial determinations for payment. Funding and Organizational Schemes for Capital Trial Defense Services As those familiar with the delivery of indigent defense services know, each state has a unique organizational scheme for delivering and funding the Constitutionally-mandated delivery of indigent defense services. To better understand the information contained in the accompanying table, this section describes how compensation rates are established for courtappointed counsel who provide capital trial defense services, how capital defense services are funded in each state, and how capital trial defense services are delivered in each state. Establishment of Court-Appointed Counsel Compensation Rates In just under half of the states which permit imposition of the death penalty, state statutory law grants to the trial court judge the authority to appoint counsel and authorize "compensation," or more commonly, "reasonable compensation," in capital trial cases. In these 16 states, compensation rates typically vary from county to county, and often vary from judge to judge and from case to case. The 16 states are: Arizona, Arkansas, California, Delaware, Florida, Georgia, Idaho, Montana, Nebraska, Ohio, Pennsylvania (except Philadelphia), South Dakota, Texas, Utah, Virginia and Washington. Additionally, in federal death penalty trial cases, compensation rates are also set by federal judges who follow Criminal Justice Act guidelines regarding payment. 3

5 In four states, Alabama, Illinois, Mississippi and South Carolina, state statutory law sets the hourly compensation rate and maximum compensation amount. In Illinois, although state statute sets a maximum hourly rate for counsel, rates vary because local judges still have authority to set the actual compensation. In nine states, along with Philadelphia, where over half of Pennsylvania's death penalty cases are processed, compensation rates are set by court rule, memorandum or order. These nine states are: Colorado, Indiana, Nevada, New Hampshire, New York, North Carolina, Oregon, Tennessee and Wyoming. In Connecticut, Kansas, Louisiana and Oklahoma, authority to set compensation rates for private counsel has been delegated to the statewide indigent defense organization. In two states - Maryland and New Jersey - authority to set compensation rates for private counsel has been delegated to the state public defender. Finally, in three states - Kentucky, Missouri and New Mexico - the state public defender contracts with private counsel to handle all conflict and/or overload capital trial cases, thereby eliminating the use of appointed counsel to handle these cases. The following table indicates how compensation is determined for court-appointed counsel in capital cases: Judge Public Defender sets Hourly Rates Contract with State Public Defender Arizona New Jersey Kentucky 4

6 Arkansas Maryland Missouri California New Mexico Delaware Statute Florida Alabama Court Rule or Order Georgia Illinois Colorado Idaho Mississippi Indiana Montana South Carolina Nevada Nebraska Ohio New Hampshire New York Pennsylvania (except Philadelphia) Commission North Carolina South Dakota Connecticut Oregon Texas Kansas Philadelphia, Pennsylvania Utah Louisiana Tennessee U.S. Government Oklahoma Wyoming Virginia Washington Funding for Capital Trial Defense Services The source of funding for a state's indigent defense system is another important factor to consider when reviewing the accompanying chart. Each state's indigent defense system may be funded by state or county funds, or by a combination of these funds. The table below indicates how each of the 38 states funds representation of indigent capital defendants at trial: State Funded County Funded State & County Funded Arkansas Alabama Arizona Colorado California Florida 5

7 Connecticut Idaho Georgia Delaware Illinois Indiana Kansas Mississippi Kentucky Maryland Montana Louisiana Missouri Pennsylvania Nebraska New Hampshire South Carolina Nevada New Jersey South Dakota Ohio New Mexico Texas Oklahoma New York North Carolina Utah Washington Oregon Tennessee Virginia Wyoming Overview: State-by-State Delivery of Capital Trial Defense Services The provision of indigent defense services in Alabama varies from county to county. While three of the state's 67 counties operate public defender offices, the rest rely upon either appointed counsel or contract attorneys. Funding for indigent defense in Alabama comes from the fair trial tax fund, which is designed to reimburse counties for capital expenditures. If revenues from the fair trial tax fund are insufficient to cover the counties' costs, the state provides funds to cover the deficit. During the 1999 legislative session, Alabama s lawmakers raised the compensation rates for court-appointed counsel to $30 per hour for out-of-court work and $50 per hour for in-court work. These rates went into effect June 10, 1999, after the Governor took no action on the legislation. On October 1, 2000, a second round of increases will be implemented, raising in-court payment to $60 per hour and out-of court payment to $40 per hour. The law also eliminated a per case maximum in capital offense and life without parole 6

8 cases. For capital trial cases, all indigent defense representation in Arizona is funded by the counties. Each county organizes the delivery of services as it chooses, so the state has a mix of county public defenders, contract attorneys and assigned counsel. In Arkansas, capital trial cases are handled by part-time county public defenders assisted by the Arkansas Public Defender Commission s Capital, Conflicts and Appellate Office, which also handles conflicts. According to of the Arkansas Code, the Arkansas Public Defender Commission is to maintain two lists of private attorneys who are qualified and willing to be appointed to capital cases - one for lead counsel and one for assistant counsel. The Commission, which must update its lists annually, sends its lists of qualified attorneys to judges. While most judges appoint off the lists, a few do not. The Commission has adopted standards which contain eligibility requirements and specify that two qualified attorneys must be assigned to represent defendants in all cases where the death penalty is sought. On January 1, 1998, the state assumed responsibility for most indigent defense expenditures in Arkansas. Compensation rates are established by the trial court judge, and vary accordingly. Attorneys are generally paid by the hour rather than by flat fees; total payments range from $20,000 to $50,000. In California, trial counsel in capital cases is provided and funded on a county-by-county basis, usually by a county public defender. Appointed counsel compensation rates vary from county to county. The state-funded Colorado State Public Defender provides representation in capital cases in Colorado. Appointed counsel are assigned conflict cases by the Alternate Defense Counsel, which maintains a list of eligible attorneys. As of July 1, 1999, hourly compensation rates for trial counsel in death penalty cases are set at $65 per hour, in and out of court, with statutory caps of $5,000 if there is no trial and $10,000 if there is a trial. These caps are routinely waived. The Connecticut Division of Public Defender Services and Special Public Defenders (SPDs) - private attorneys who contract with the public defender to handle conflict and overload cases - provide representation in almost all death penalty cases in Connecticut. The Division of 7

9 Public Defender Services has a specialized death penalty unit. Effective July 1, 1999, pursuant to (12) C.G.S., Special Public Defenders in Connecticut receive $60 per hour with no per case maximum for their work on capital cases. The Office of the Public Defender of the State of Delaware represents capital defendants at trial and on direct appeal. Conflict cases are primarily handled by a pool of private attorneys who contract with the state to handle conflict cases. The average annual flat-fee contracts are for $42,000 (per attorney), not including work on capital and non-capital murder cases. If contractors are assigned to handle a capital case, their first 50 hours of work are waived as work under contract and they are paid $60 per hour for each hour afterward. The contract program is administered by a circuit court judge, who selects the contract attorneys. Each of Florida's 20 circuit public defender offices handles capital trials; many offices have capital trial divisions. Conflict cases are handled by court-appointed counsel, and the rates vary from judge to judge and circuit to circuit. In Dade County (Miami), the current compensation for court-appointed counsel in capital cases is set at $80 per hour with a $10,000 waivable per case maximum. By statute, the state is responsible for public defender salaries and "the necessary expenses of office," and the counties pay for office overhead expenses and courtappointed counsel costs. While state funds are distributed to the circuit public defender offices based on a funding formula designed to fairly distribute the monies, some counties make more funding available for indigent defense than others. In Georgia, funding for indigent defense representation in capital trial cases comes from the counties, with limited state assistance from two state-funded organizations: the Georgia Indigent Defense Counsel (GIDC) and the Office of the Multi-County Public Defender. Most capital trial cases are handled by county public defenders or appointed counsel. The Georgia Indigent Defense Commission recommends that counties pay rates of $45 per hour out of court and $60 per hour in court to counsel handling felony cases, and disallows the setting of a percase maximum in capital felonies. As of March 4, 1999, through a Georgia Supreme Court order, the 141 of Georgia's 159 counties which meet the standards and guidelines set out by 8

10 GIDC must adhere to these rates. GIDC receives an annual state appropriation to distribute among counties that meet its standards. The Office of the Multi-County Public Defender provides support for private counsel in many trial capital cases. Additionally, the Office is typically directly involved in trials and 2-3 direct appeal cases at any one time and often serves as co-counsel. Indigent defense services are funded and provided on a county-by-county basis in Idaho. Compensation for counsel appointed in capital trial cases ranges from $40 per hour to $100 per hour, depending on the county. The majority of Illinois' 102 counties have county-funded public defender offices (by statute, counties with populations of 35,000 or more are required to have a public defender); the balance use either contract defenders or assigned counsel. In conflict cases, the circuit court judge appoints counsel and sets the compensation rate. During the 1999 legislative session, Illinois legislators approved a bill declaring that private attorneys representing an indigent client charged with a capital offense will be reimbursed at a rate not to exceed $125 per hour with no cap. In addition, the legislature created a Capital Litigation Trust Fund to assist counties in the prosecution and defense of capital cases. Rule 24 of the Indiana Supreme Court Rules of Criminal Procedure governs trial capital cases for those counties which elect to comply with the rule. In exchange for compliance, the state, through the Indiana Public Defender Commission, reimburses the counties for 50% of the cost of representation. Under Rule 24, two attorneys who meet the qualification standards set forth in the rule must be appointed to capital trial cases. The Indiana Public Defender Commission maintains a list of Rule 24-qualified attorneys. Recent death penalty training is required, as is periodic training. Under Rule 24, counsel are paid $70 per hour, in or out of court, with no per case maximum. Rule 24 also requires counties to adopt a legal representation plan and sets caseload limits for public defenders who handle capital cases. Kansas' death penalty statute went into effect on July 1, The state-funded Kansas Board of Indigents Defense Services (BIDS) Death Penalty Defense Unit handles most capital 9

11 trial cases, while conflict and overload cases are handle by panel attorneys. Counsel negotiate with BIDS for their fee at trial. BIDS reports that recent fees have all been $100 per hour, with no cap. The state-funded Kentucky Department of Public Advocacy (DPA) has a capital trial unit with six attorneys. In addition to handling cases, the unit responds, on an informal basis, to inquiries from contract counsel who also handle capital cases. Judges appoint either the DPA office or local contract counsel in the area. Attorneys receive $12,500 per case at $50 per hour, plus expenses. In Louisiana, most capital trial cases are handled by parish public defenders or contract counsel. While Louisiana's parishes cover the majority of costs associated with indigent defense, the state also contributes some funds through the Louisiana Indigent Defender Board (LIDB), including funds for experts and investigators. The LIDB also oversees selection and compensation of counsel in conflict and overload situations. Chapter 7 of the LIDB Standards addresses trial and direct appeal representation in capital cases in Louisiana, specifying that investigative, expert and other support services are to be made available, and requiring initial and ongoing training. Per LIDB standards, compensation for trial counsel is set at $57.65 per hour, up to a total of $78,000 per case for two attorneys. This total includes $5,000 intended for investigative fees. Finally, the LIDB contracts with a number of private attorneys to provide back-up and consultation to attorneys handling capital cases. The state-funded Office of the Public Defender in Maryland, which handles most capital trial cases, also acts as a support organization for assigned counsel. Compensation for assigned counsel in capital trial cases is set by the Office of the Public Defender at $30 per hour for work out of court and $35 per hour in court, with a $12,500 cap. In Mississippi, which has a county-funded indigent defense system, county public defenders or court-appointed counsel are appointed by the court in capital trial cases. Compensation rates vary from county to county, but by statute (as interpreted in Wilson v. State, 574 So.2d 1338 (1990)), total compensation for trial work cannot exceed $1,000 plus overhead 10

12 expenses, which are set at a presumptive rate of $25 per hour. The Missouri State Public Defender System provides primary representation in all phases of capital cases and contracts with attorneys to handle conflict and overload cases. The Missouri State Public Defender has three separate divisions throughout the state which handle most capital cases, including first and second conflicts. If one division has a conflict, the case is sent to one of the other two offices. If the division has a conflict with two defendants, each case is sent to one of the other two offices. For other conflict and overload capital trial cases, the State Public Defender enters into contracts with private counsel. These flat-fee contracts range from $10,000 to $13,000 for lead counsel and $5,000 to $8,000 for co-counsel, excluding expenses. Court-appointed counsel are not used in Missouri. In Montana, county public defenders, contract defenders and appointed counsel (funded by the counties, but reimbursed by the state) provide representation in capital trials. In conflict and overload cases, the court-appointed compensation rate varies from county to county. Each of Nebraska's 93 counties organizes and provides most of the funding for its own indigent defense system. Some counties have public defender offices; the majority use appointed counsel or contract attorneys. In 1995, the Nebraska legislature created and funded the Nebraska Commission on Public Advocacy, which provides legal services and resources to assist counties in providing effective assistance to indigent persons through its capital litigation, appellate and felony case divisions. Four Commission attorneys, two support staff and one investigator work on capital trial and direct appeal cases. For the most part, the Commission handles cases which are outside of Omaha and Lincoln where there is no public defender. The Commission is structured to help those small rural counties that would have difficulty financing the defense in a capital case. Except for those cases handled by the Commission, which receives a state general fund appropriation and federal grant money, all funding for capital case representation comes from the counties. Local judges have the authority to establish compensation rates for court-appointed counsel in capital cases and the rates vary, ranging from $40 per hour to $100 per hour. 11

13 Clark County (Las Vegas) and Washoe County (Reno), Nevada's two largest counties, fund their own indigent defense systems and each has a public defender program. Nevada's remaining counties may choose to participate in the state/county funded state public defender system, or opt to fund their own services to provide representation to indigent defendants. Nevada Supreme Court Rule 250 was promulgated "[t]o assure that capital defendants receive fair and impartial trials, post-conviction relief proceedings, and appellate review within the courts of the State of Nevada." For each stage of the proceedings, compensation for appointed counsel is set by statute at $75 per hour, in or out of court, with a $7,500 cap that is routinely waived. In New Hampshire, the state-funded Public Defender handles capital trial cases. While the state has a death penalty law on the books it is rarely used; in the past 13 years, there has only been one death penalty trial in New Hampshire. If appointed counsel were necessary because of conflict or overload, New Hampshire Supreme Court Rule 47 establishes an hourly compensation rate of $60 per hour, in or out of court, up to a waivable $15,000. The state-funded New Jersey Office of the Public Defender, which handles capital cases at all stages of the proceedings, also provides some support for conflict appointed counsel. Compensation for assigned counsel at trial is $50 per hour, in or out of court. The state-funded New Mexico Public Defender Department provides primary representation in capital cases in the state. Approximately half of the state's counties (the more populous ones) are served by one of the Public Defender Department's regional offices; private attorneys who contract with the Public Defender Department represent indigent defendants in the remaining counties. In conflict cases, contract counsel who are selected by the Public Defender Department receive the flat fee of $12,500 at trial. New York's death penalty law went into effect on September 1, Unlike other (county-funded) indigent defense services in New York, all attorneys fees and expenses associated with the defense of indigent defendants accused or convicted of capital crimes in New York are funded by the state. The Capital Defender Office (CDO) was created by statute to 12

14 provide representation and to support and assist at all stages of capital litigation. The CDO has contracted with attorneys and other indigent defense organizations (e.g., the New York Legal Aid Society Capital Defense Unit) for representation in capital cases. At trial, by statute, two attorneys must be appointed to represent an indigent defendant charged first degree murder or second degree murder, where the district attorney confirms upon inquiry by the court that the district attorney is undertaking an investigation to determine whether the defendant can or should be charged with murder in the first degree and the court finds that there is a reasonable likelihood that the defendant will be so charged. By statute, a screening panel has been established in each of the five judicial departments in the state. The screening panels recommend to the Court of Appeals a schedule of fees to be paid to counsel appointed to capital cases. The Court of Appeals approved the recommended compensation rate for trial counsel at $175 per hour for lead counsel and $150 per hour for co-counsel, with no cap. However, in December 1998, the Court reduced these rates, simultaneously altering the rate structure so that the payment varies depending on whether the work was done before or after the prosecution announced its intent to seek the death penalty. Lead attorneys in capital cases are now to be reimbursed at a rate of $125 per hour for their work after the prosecution has given notice of intent to seek the death penalty, and $100 per hour for their work before notice is given. Associate counsel receive $100 per hour after notice, and $75 per hour before notice. In North Carolina, the state pays for indigent defense expenditures and local public defenders or appointed counsel handle capital trial cases. The North Carolina Administrative Office of the Courts has recommended that counsel be paid $85 per hour, with no cap. However, trial judges actually set the rate. Ohio's indigent defense system is funded through a combination of county and state monies; capital cases are handled by county public defenders or appointed counsel. Ohio's Supreme Court Rule 65, which governs which attorneys are certified as eligible to take capital case appointments, is mandatory in all courts in Ohio. Rule 65 calls for appointment of two attorneys at all levels and requires the Rule 65 Committee to develop the rosters of certified 13

15 attorneys and to send them to judges. While hourly compensation rates are determined and paid county-by-county, the Ohio Public Defender Commission establishes the level of maximum compensation, which currently is $20,000. The Commission also reimburses counties for up to 50% of their expenditure on attorneys' compensation, but the rate of reimbursement fluctuates each year, depending on the Commission's budget. Generally, it is between 40% and 50% of the amount paid by the county. In Oklahoma's two largest counties, Tulsa and Oklahoma (Oklahoma City), the counties fund indigent defense services at the trial and direct appeal levels. Both counties have full-time public defender offices. The state provides funds for the Oklahoma Indigent Defense System (OIDS), which oversees the delivery of legal services throughout the rest of the state. OIDS has separate capital trial, capital direct appeal, non-capital direct appeal and capital state postconviction divisions. For cases with which OIDS attorneys have a conflict of interest, appointed attorneys are paid hourly rates of $60 per hour out of court and $80 per hour in court for lead counsel, and $50 per hour out of court and $70 per hour in court for co-counsel. Lead attorneys receive up to $20,000, and co-counsel fees are capped at $5,000. In Oregon, the state provides all funding for indigent defense services. Most capital trial cases are handled by attorneys working under contract with the Indigent Defense Services Division of the State Court Administrator's Office. These contracts range from approximately $140,000 to $169,000 per year per full-time employee, and include 1800 to 1850 hours of representation. For those cases not handled by contract counsel, compensation for appointed counsel is set by the Indigent Defense Services Division of the State Court Administrator's Office at $55 per hour for lead counsel and $40 per hour for co-counsel, with no cap. Occasionally, as a result of a petition by co-counsel, the rate of $50 or $55 per hour has been authorized for co-counsel in a capital case. Each of Pennsylvania's 67 counties organizes and funds its own indigent defense delivery system. No state funds are available for indigent defense representation in Pennsylvania. In Philadelphia, as of spring 1997, a Modified Guaranteed Fee System was 14

16 introduced to replace its hourly fee system. Under the new system, compensation paid to courtappointed counsel is calculated on a per diem basis. For example, court-appointments in cases that require one trial day lasting more than three hours will be compensated on a per diem basis which includes a preparation fee of $1,700 and $200 for the in-court time that lasts more than three hours. Attorneys working on cases lasting more than one day receive $1,900 for the first day of trial ($1,700 preparation fee plus $200 for more than three hours in-court time), and an additional per diem of $200 for each half-day (three hours or less) and $400 for each full day (three hours or more). In South Carolina, capital trial cases are handled by county public defenders, contract counsel or South Carolina Supreme Court-certified appointed counsel. County and state monies fund the state's indigent defense system. By statute, trial counsel are paid at least $50 per hour out of court and $75 per hour in court, with a waivable $25,000 cap. However, judges often raise the compensation rates to $90-$110. Each of South Dakota's 67 counties organizes and funds its own indigent defense delivery system for capital trial, direct appeal and state post-conviction representation. It is reported to us that assigned counsel is paid $55 per hour, in or out of court, with no cap, for every stage of the proceedings. In Tennessee, with the exception of Shelby County (Nashville) and Davidson County (Memphis), which have their own respective county public defender offices funded through a combination of state and local monies, the state funds indigent defense and each judicial district has an independent public defender office. In early April 1997 the Tennessee Supreme Court amended Rule 13 of the Rules of the Supreme Court of Tennessee. The revised rule covers compensation, qualification and appointment of counsel in death penalty cases. Under Rule 13, lead counsel are paid $75 per hour out of court and $100 per hour in court, while co-counsel receive $60/$80 per hour. There is no cap on fees. Each of Texas' 254 counties organizes and funds its own indigent defense delivery system for capital trial representation. No state funds are available. While a few counties have 15

17 public defender programs, the majority rely upon assigned counsel or contract defenders. Compensation rates, which are established by district court judges, vary from county to county. For example, in Smith County (Tyler, TX), two attorneys will be appointed to a capital cases. Lead counsel will receive $100 per hour, up to a cap of $45,000. Co-counsel will be paid $50 per hour, up to a cap of $22,500. In Dallas County, on the other hand, a fee schedule has been instituted. As of February 4, 1999, pursuant to Art C.C.P., the fee schedule is as follows: Activity Minimum-Maximum Rates Court Appearance $100-$300 Motion Hearing $350-$1,000 Voir Dire $350-$1,000 Trial $350-$1,500 Hourly rates for all activities range from $40 to $250. Each judge may set a fee within the minimum and maximum rate listed above. In Utah, all indigent defense costs relating to capital trial representation are absorbed by the counties. County public defender or contract counsel handle capital trial cases. Utah Supreme Court Rule of Criminal Procedure 8 addresses appointment of counsel in capital cases, requiring that two or more attorneys must be appointed for capital trials. We noted in our 1998 report that contract public defenders in Salt Lake County are paid a total of $80,000 for work on capital cases, and could ask the county commissioners for reimbursement of extraordinary costs. This practice has now spread throughout the state, and twenty of Utah s 29 counties now participate in a capital defense risk pool. Those counties which contribute money to the pool can draw from the pool to reimburse attorneys in capital cases, for up to $80,000 for two attorneys per case. In Virginia, where the state funds indigent defense, capital trial cases are handled either by attorneys from 19 regional public defender offices (serving about one-third of the state) or appointed counsel, who handle conflicts from the public defender offices, and all cases filed in the rest of the state. In capital cases, the Virginia Supreme Court recommends that circuit court 16

18 judges, who set the compensation rate, pay $40 per hour out of court and $60 per hour in court. However, some judges, particularly those in Northern Virginia, establish higher rates. There is no cap on attorneys' fees. Indigent defense services in Washington are funded and organized on the county level for trial representation. Per statute, the trial court awards "reasonable compensation," which varies from county to county, ranging from $60 to $125 per hour, with no cap. By practice, the Wyoming State Public Defender, which handles capital trial and direct appeal cases, assigns two attorneys to both capital trials and direct appeals. Rule 44 of the Wyoming Rules of Criminal Procedure set appointed counsel rates at no less than $25 per hour and no more than $50 per hour. There is no per case maximum. At trial, federal capital defendants are represented by either Federal Public Defenders or CJA panel attorneys. By 18 U.S.C. 3005, two attorneys must be appointed to federal death penalty trial cases. Twenty-one U.S.C. 848(q)(10)(A) addresses compensation of counsel, providing that the rate of compensation shall not exceed $125 per hour, in or out of court. There is no cap on fees. The AOC Guidelines allow for interim payments. Conclusion Guideline 10.1(A) of the American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (1989) provides: Capital counsel should be compensated for actual time and services performed. The objective should be to provide a reasonable rate of hourly compensation which is commensurate with the provision of effective assistance of counsel and which reflects the extraordinary responsibilities inherent in death penalty litigation. Increasingly, the state supreme courts, commissions, judges and legislatures charged with setting assigned counsel compensation rates in capital trial cases are following this guideline. For example, in April 1997, the Tennessee Supreme Court issued amended Rule 13 of the Rules of the Supreme Court of Tennessee, which addresses appointment, qualifications and 17

19 compensation of counsel for indigent defendants in capital and non-capital cases. In capital trial cases, the amended rule requires appointment of two attorneys, establishes qualification standards, and provides that lead counsel will be paid $100 per hour in court and $75 per hour out of court, while co-counsel will be paid $80 per hour in court and $60 per hour out of court. In fact, since our previous surveys, a number of states have increased appointed counsel compensation rates in capital trial cases; these improved compensation rates reflect the highly complex work associated with capital trial representation and help assure that indigent defendants charged with capital crimes are provided effective representation of counsel. 18

20 TABLE OF CONTENTS Introduction...1 Funding and Organizational Schemes for Capital Trial Defense Services...3 Establishment of Court-Appointed Counsel Compensation Rates...3 Funding for Capital Trial Defense Services...5 Overview: State-by-State Delivery of Capital Trial Defense Services...6 Conclusion...18 Table: Rates of Compensation for Court-Appointed Counsel in Capital Cases at Trial, 1997 w:\bip\articles\capital a-c compensation rates