[WCADP-list] Washington State Bar Association: Final Report on the Death Penalty to the WSBA

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Final Report on the Death Penalty to the Washington State Bar Association

 

Members of the WSBA subcommittee representing those opposing the death
penalty included WCADP President, Jeff Ellis (Ellis Holmes & Witchley PLLC,
Seattle); WCADP Steering Committee member Mark Larrañaga (Walsh & Larrañaga,
Seattle; former Director, Death Penalty Assistance Center); and WCADP Member
Michael Iaria (Cohen & Iaria, Seattle).

 

To read the complete report of the subcommittee go to:
<http://www.wsba.org/lawyers/groups/committeeonpublicdefense.htm>
www.wsba.org/lawyers/groups/committeeonpublicdefense.htm 

 


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The following summary of the report comes to us from the Death Penalty
Information Center 

 <http://www.deathpenaltyinfo.org/article.php?did=2024&scid=64>
www.deathpenaltyinfo.org/article.php?did=2024&scid=64

 

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 in additional 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).

 


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The Washington Coalition to Abolish the Death Penalty
It's easy to support the death penalty when you don't have all the facts.
P.O. Box 3045
Seattle, WA 98114-3045
phone (206) 622-8952
fax (206) 622-2016
www.abolishdeathpenalty.org
 
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