Almost two years ago the Atlantic Center for Capital Representation embarked on an effort to improve the absurdly low fees paid to court-appointed counsel in death penalty cases in Philadelphia. After two dismissals from the Philadelphia Court of Common Pleas – apparently we were not adept at properly numbering our paragraphs – the Pennsylvania Supreme Court accepted the matter, ordered hearings to make findings of fact, and sent the matter back to the Philadelphia courts. But things don’t always go smoothly when money is on the table – three days of hearings abruptly became one, and the special master recommended a very moderate hourly rate of $90 for court-appointed counsel handling our most serious cases. That recommendation sat in the Pennsylvania Supreme Court, gathering dust, for a gestation period of nine months – until in early December the Court asked for an update based on the fee schedule currently in place. You see, the Philadelphia courts went from $2000 and $400/day of trial to $10,000 and zero/day of trial. Both are hopelessly inadequate, the first because the numbers are so outrageously low that lawyers spent no time in preparation; and the second because, while the numbers are still far below every other major city in the country, lawyers now have no incentive to go to trial at all. Nationally respected ethicist Lawrence Fox, Yale Law Professor and partner at Drinker Biddle and Reath, called the current system “unconstitutional, unethical and embarrassing.”
Judge Lerner, who recommended the $90/hour rate in the first place and concluded in his initial recommendation to the Supreme Court that the Philadelphia fee schedule was “grossly inadequate,” noted the other day that the city paid $200,000 for capital defense services in 2010, and that the $90 hourly rate would require the city to spend $340,000 more per year. What he failed to mention was that the $200,000 figure was for more than 20 cases – the average amount of money spent for a SINGLE federal death penalty trial is $465,000! And for those who love the idea of saving money on the backs of poor people accused of our most serious crimes, keep in mind the recent conclusions from the Yale Law Journal’s How Much Difference Does the Lawyer Make: The Effect of Defense Counsel on Murder Case Outcomes by James Anderson and Paul Heaton – the lawyering prompted by such outrageously low fee schedules has cost the taxpayer in incarceration rates alone over $200 million in 11 years.
It appears that the Pennsylvania Supreme Court will take another look at Philadelphia’s system of representing poor people in capital cases. One only hopes that the Court does the constitutional, ethical, fiscally sound, and morally right thing – establishing a reasonable hourly rate so that competent attorneys can properly represent their clients in the most serious cases we have. And at the same time, Philadelphia can cease to be a national embarrassment.