March 01, 2012

Fourth Circuit Judicial Counsel Suspends Effective Date of Attorney Compensation Procedures in Death Penalty Cases

The Fourth Circuit Judicial Council suspended the March 1 effective date for implementation of new special procedures for requesting attorney compensation requests in death penalty cases to permit the council to consider concerns expressed by individuals and groups, including the ABA.

ABA President Wm. T. (Bill) Robinson III had urged the council to withdraw the proposed procedures in comments submitted Jan. 30 because he said the procedures are inconsistent with the delivery of high-quality legal representation for capital defendants and death-sentenced prisoners in the Fourth Circuit.

Robinson acknowledged that the Special Death Penalty Compensation Procedures are intended to maximize the use of limited funding for the largest number of indigent defendants, but said that the ABA was submitting comments because of its concern that any short-term financial savings that may be achieved will be negated by long-term consequences that are inconsistent with the goals of the justice system.

He explained that while the ABA’s policies, which do not endorse or support the death penalty, address the fair administration of the death penalty, including that every person facing a possible death sentence has the assistance of competent and skilled attorneys at every stage of the proceedings against them. Over the past 25 years the ABA Death Penalty Representation Project has worked to improve the quality and availability of counsel in death penalty cases by recruiting volunteer counsel from civil law firms to handle capital cases, and training judges and lawyers about the resources and skills necessary for an effective capital defense. The project also promulgated the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, widely accepted as the national standards in this area.

The proposed procedures would establish fee caps for defense counsel not only in federal capital trials, but for direct appeals for defendants sentenced to death and post-conviction proceedings for federal death row inmates. Robinson emphasized that such caps are specifically prohibited by ABA policy and would make the recruitment of qualified and experienced capital counsel in the Fourth Circuit more difficult.

“Capital cases are the most time-consuming and complicated kinds of criminal cases,” Robinson said, noting that thousands of hours must be spent preparing a capital case for trial or post-conviction proceedings to ensure that they are litigated competently. He also noted that because the federal government has no restrictions on the number of attorney hours or the amount of money it can commit to a capital case, additional disparities would be created between capital defendants who are represented by Federal Defender Offices and those represented by private attorneys appointed under the Criminal Justice Act.

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