---------- Forwarded message ---------- Date: Wed, 14 Jan 1998 09:00:35 -0600 From: "Mark J. Mahoney" To: Multiple recipients of list Subject: $$ for DP vs $$ for atty Bill Lofquist asks about the role of costs in the implementation of the death penalty, referring to what Herbert Haines says in his book that "the cornerstone of a more effective assault on the death penalty would most likely be its crippling cost" (169). Herbert adds that "I call cost and efficiency the "cornerstone" of an anti-death penalty strategy, not the whole thing." I have not read this book, but there is a lot to consider. We tried to raise costs as a reason not to reinstate the DP in NY. Indeed, the unanimous opposition of the Executive Committee of the Criminal Justice Section of the NY State Bar Ass'n--made up of prosecutors, judges and defense attorneys--to reinsatement was focused on this. We did not succeed at that. Another side of the costs issue has to do with the relationship between the prevalence of death prosecutions and verdicts and costs. Knowledge of the costs involved has in part kept prosecutions at a minimum in NY so far. NY had only 19 cases where the death penalty has been sought in its first two years of operation. This despite the centralization of the costs of the defense. But death penalty prevalence rates also has to do with the quality of defense which is directly related to the amount paid to defense counsel. Many states are in crisis because they have too many death verdicts and only a few of them survive. This is a waste of resources expended for the temporary political gratification of getting an invalid death verdict. This is cruel to victims too. There are backlogs at the appellate level because of this. California only decided 15 cases last year, while there were 45 death verdicts. Its backlog is over 300 cases on appeal and half of those people do not have counsel. The backlog is growing and there is no foreseeable change in that. As Herbert mentions "Yet, when you look at some recent anti-death penalty activities: the efforts of Florida's chief justice and others to end reliance on the death penalty, for example, they reflect a very pragmatic sense of the futility and expense of executions." Florida too has bottlenecks at the appellate level, and this is what is creating the attention. The work of the highest courts in each capital state is dramatically affected by death cases which might only be 10% of the cases but 30% of the work. What these state are realizing is that they need to control the level of prosecution and verdicts to a realistic number, and they realize that this can only be accomplished with effective representation at the trial level. They also realize that this cannot be achieved without increasing the rates paid to the lawyers in DP cases. The "trend" is in exactly that direction. Several states have raised or are actively considering raising rates for counsel and making payments of counsel a state charge in order to add some control to the prevalence rate.. Dean Norman Lefstein, at Indiana University, in his 1996 article, "Reform of Defense Representation in Capital Cases: The Indiana Experience and its implications for the Nation" 29 Ind. L. Rev. 495, reveals the data which shows that the rate of death penalty prosecutions and verdicts was cut in half when Indiana doubled its hourly rate for counsel to only $70 per hour. His research demonstrated the direct causal link between the two. Unfortunately the data is hard to find for other regions to prove this correlation more conclusively, though its correctness is intuitively valid. I have recently argued in New York that the high rates for counsel we have established ($175 and $150/hr for lead and associate counsel), together with an effective statewide defender office, is what is mostly responsible for the low rate of prosecution thus far. There have been no trials yet. There is pressure here to reduce the rates set because, quite naturally, the cost in individual cases seems high for the representation by private appointed lawyers so far (even though low in comparison to the legal market and even what the state pays for private counsel in other matters). I have argued that these rates should not be tampered with, as even incremental increase in the prosecution rates now and in the next few years, as a result of decrease, or perceived decrease, in the effectiveness of counsel, can have disastrous effects on the state that will not be felt until it is too late to fix (e.g. California) So, a lot can be accomplished toward reducing the rates of prosecution and conviction by advocating for fair compensation of counsel at the trial level. This is in part an economic argument, but it also goes directly to the question of fairness and arbitrariness, and the "probability of fatal errors" that Herbert mentioned, and so on. Mark Mahoney, Buffalo, NY ------------------------------------------------------------- Private reply: "Mark J. Mahoney" Public replies: deathpenalty@assocdir.wuacc.edu List owners: Julian Killingley, julian.killingley@uce.ac.uk Ray Spring, zzspri@acc.wuacc.edu To unsubscribe, send message to: listserv@assocdir.wuacc.edu message merely says: unsub deathpenalty Technical question? Mark Folmsbee, zzfolm@acc.wuacc.edu Washburn's WashLawWEB, a comprehensive legal research site: http://lawlib.wuacc.edu/washlaw/washlaw.html