Gideon Alert: Philadelphia death penalty assigned counsel rates challenged

BY David Carroll on Friday, April 8, 2011 at 3:28 PM

On April 6, 2011, the Atlantic Center for Constitutional Representation (ACCR) filed a motion in four court-appointed death penalty cases arguing that the rate of attorney compensation Philadelphia County pays in capital cases is so low as to be unconstitutional, as reported in the Philadelphia Inquirer.  The petition seeks one of two remedies: a) adequate compensation in each of the four cases, or b) not allowing the Commonwealth of Pennsylvania to seek the death penalty in each case.

The 2003 American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (Guideline 9.1) is the prevailing national standard on death penalty compensation.  The Guidelines require that “[c]ounsel in death penalty cases should be fully compensated at a rate that is commensurate with the provision of high quality legal representation and reflects the extraordinary responsibilities inherent in death penalty representation,” specifically banning “[f]lat fees, caps on compensation, and lump-sum contracts.”  The Guidelines further require appointed counsel to be fully compensated for “actual time and service performed” at “prevailing rates for similar services performed by retained counsel in the jurisdiction” and with “no distinction between rates for services in or out of court.” 

The Philadelphia County compensation rates fail all of these standards.  Philadelphia County pays a flat-fee of $1,700 for all pre-trial preparation in death penalty cases and an additional $200 for each in-court half day (three hours or less) or $400 for each in-court full day (three hours or more).   

Under this scenario, an attorney has little financial incentive to do necessary preparation, ACCR argues, “given that she will receive the same fee for one hour’s preparation or two thousand.” At the same time, the attorney has a financial incentive to then take that case to trial as she has the potential to double her take home pay after a fourth day of in-court trial work.  The Philadelphia compensation rates force ethical attorneys to lose money while doing an appropriate amount of work (see sidebar example), while financially rewarding unprepared lawyers for taking cases to trial quickly (whether or not going to trial was in the client’s best interest in the first place).

This is a potentially deadly scenario for indigent defendants. As the motion notes, the Philadelphia County District Attorney seeks the death penalty more than any other jurisdiction in the country, while the County pays its court-appointed lawyers less money than any other comparable jurisdiction in the country. (The American Bar Association has the most current information on state-by-state assigned counsel rates in both capital and non-capital cases.)  Perhaps it is no wonder then that Philadelphia County has the “highest reversal rate of death penalty cases for ineffective assistance of counsel of any city in the country.” 

A hearing has been set for April 27th in the matter.

A challenge such as this to the funding of indigent defense in Pennsylvania should have been long predicted.  Though the Commonwealth of Pennsylvania requires each of its counties to establish a public defender office, Pennsylvania remains one of only two states that have elected to delegate its entire right to counsel financial obligation under Gideon v. Wainwright and its progeny to its counties (Utah is the other).  Click here for more information on Pennsylvania’s historical struggles to meet Gideon’s promise.

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