Georgia isn’t the only state with the death penalty that is reporting these problems. In Kentucky, the American Bar Association announced after a two-year investigation that the state’s capital defenders, investigators and mitigation specialists are “routinely overworked and underpaid, carrying caseloads ranging from 12 to 25 capital cases at any given time.”
In Pennsylvania, which has twice the death row population as Georgia, a Philadelphia judge ruled in March that paying capital defenders based on a 15-year-old fee schedule was “woefully inadequate.”
Across the country, it’s the same story, said Richard Dieter, the executive director of the Death Penalty Information Center.
“I think ultimately, there’s no such thing as death penalty on the cheap,” Dieter said.
In the past seven years, funding has dropped $2.3 million for the local Capital Defender Office, which represents the pending Richmond County death penalty cases of Kelvin Johnson and Adrian Hargrove. In the case of Hargrove, who is charged with the murder of three people, his defenders said “serious budget restrictions” were hampering their ability to effectively represent their client “due to potential travel restrictions and restrictions on the hiring of experts.”
Teri Thompson, who is defending Johnson in the killing of Martha Greene in 2009, has said her workload has increased from four or five clients at the same time to seven or eight cases. Thompson says in court papers that she is constantly preparing for the most pressing death penalty case, which leads to delays in other cases.
The problems expressed by capital defenders in Georgia are shared around the U.S.
Capital defenders in Kentucky are handling a caseload similar to their counterparts in Georgia. American Bar Association guidelines set the maximum number of capital cases per defender at four, but in court papers, Georgia defenders say they routinely handle more than six at once. With higher caseloads in Kentucky, 50 of the state’s 78 death penalty convictions have been overturned.
Kentucky Public Advocate Ed Monahan said mistakes are the result of defenders not having adequate time to complete their cases before trial. The cases have to be done right the first time, but the workload and lack of funds for mitigation specialists (who help find evidence to would spare the defendant’s life) and investigators doesn’t make that possible, he said.
“Our challenge to competently staff capital cases in Kentucky is increasingly complicated,” Monahan said.
The results of adequately funding a capital defender’s office can be found in New York, which did not have an execution between the reinstatement of the death penalty in 1995 and its abolishment in 2004. Kevin Doyle, the state’s former capital defender, said funding was never an issue, in part because the state government could see the savings in having dedicated capital defense attorneys versus hiring private counsel for indigent defense.
Doyle’s office was shuttered before the economy went into a recession; now, with governments cutting essential services such as teachers and public safety, Doyle doesn’t foresee a long future for the death penalty in the United States.
“As people look at the costs and risks of executing people ... it’s beyond justification to fund a death penalty that’s proven fallible,” he said.
Under current funding levels in Georgia, capital trials have resulted in seven death penalty verdicts out of 125 cases since 2005. In five cases the district attorney withdrew death notice, and in one case a client died in custody. There remain 51 cases pending across Georgia.
Despite funding challenges, the difference in death penalty representation before 2005 and today’s work by capital defenders is “a little greater than the difference between night and day,” said Stephen Bright, a senior counsel for the Southern Center for Human Rights.
Critics have called the long delays excuses with the ultimate goal of abolishing the death penalty altogether. Dieter said that’s not the case, simply proof of an adversarial law system designed to challenge every step of the death penalty process.
Dieter also sees a bleak forecast for the death penalty, at least with current funding levels.
“I think it may be a larger cost benefit analysis than a moral issue as to whether the death penalty survives,” he said.