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Ed Rendell and why we can't afford the death penalty in Pennsylvania

I'm pretty stoutly against the death penalty, but I'm often unsure that I should write about it—because, as a practical matter, Pennsylvania doesn't ever really put anybody to death. Still, the legal and theoretical existence of the death penalty skews the justice system here in undesirable ways—and Ed Rendell, to his credit, is trying to do something about it:
Rendell, a former Pennsylvania governor and the city's district attorney from 1978 to 1986, has written to Common Pleas Court President Judge Pamela Pryor Dembe urging her to administratively increase the flat-fee system now being challenged before the state Supreme Court.

The petition on behalf of three Philadelphians facing death if convicted of murder contends that the $2,000 flat rate paid court-appointed capital lawyers is so low that it violates the clients' constitutional right to "effectiveness of counsel."
Emphasis added. Now, that $2,000 just covers "trial preparation" time—defense lawyers get paid $200-$400 a day during the actual trial.

Now, I'm not in a position to turn down a $2,000 paycheck. But when you think about the time it must take to prepare a proper defense in capital murder trial, that preparation fee is incredibly low. Google doesn't offer me a ready-made estimate of defense billable hours in death penalty cases around the nation, but it's not uncommon to see figures like 463 hours—or many, many more—thrown around.

One wonders if a capital defense lawyer in Pennsylvania ends up making even minimum wage on a case. But this is troubling—and unjust—because prosecutors surely aren't limited to $2,000 of pay in preparing for a capital case. While government prosecutors don't have an unlimited budget, their resources simply overwhelm those of an indigent murder defendant. When the trial starts, the playing field is already weighted heavily toward the prosecution.

It's not supposed to work that way.

Rendell is trying to do something about it by getting a raise for defense attorneys because of that imbalance. "It results in a tremendous waste of money, but, far more importantly, it increases the very real possibility that someone who is not guilty or not deserving of the death penalty could be convicted and sentenced to death." He's right. But he's wrong about the solution.

Pennsylvania's budget--like government budgets everywhere--is coming down. There is no more money for defense attorneys, and it's never politically popular to increase spending on defendants anyway. The best way to ensure that capital murder defendants have something approaching a fair chance in Pennsylvania courts is to end the death penalty, once and for all.

This isn't about whether guilty defendants deserve to die. It's about whether the state can fairly administer justice, whether it can ensure that a condemned man legitimately deserves that condemnation. Right now, that doesn't appear to be the case. And since death row appears to mostly be a life sentence, anyway, the added costs of a capital murder trial seem wasted—if the intended result is an execution.

Death penalty jurisprudence in Pennsylvania is unbalanced, unfair, and ultimately ineffective. Why are we holding onto this system?


Glomarization said…
Think of it this way. As a lawyer I charge a little under $200 for the paper-pushing work I tend to do: contract negotiating, real estate transactions, and so on. Two grand is ten hours of my work, which doesn't involve attempting to preserve someone's basic liberties -- mostly it involves bringing a deal to a close, or winning someone's money back, or securing some intellectual property rights.

Criminal defense involves securing someone's fundamental liberty not to be kept in a prison by the government. A capital case involves securing someone's fundamental liberty not to be killed by the government. Even if I were to do that work for you for $200 per hour, wouldn't you hope I work more than 10 hours on your case?

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