Page 235 - Ad Hoc Report June 2018
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 For both § 2254 and § 2255 habeas petitions, 18 U.S.C. § 3599(a)(2) requires the appointment of counsel and securing of funding for “any defendant who is
or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services.” However, the same section places limits on funding for representation and related services. Section 3599(g)(1) sets
the hourly rate of capital counsel, authorizing the Judicial Conference to raise it as required; it is currently set at $185 an hour. Section 3599(g)(2) sets a cap of $7,500 for “[f]ees and expenses paid for investigative, expert, and other reasonably neces- sary services” that can be obtained from the district court without circuit approval. Although Congress has raised the hourly rate over the years, the presumptive cap on reasonably necessary services has not been increased since 1996.912
Expenses for investigative or expert services may only exceed this decades-old cap of $7,500 if: 1) payment in excess of that amount is certified by the district court as necessary to provide fair compensation for services of an unusual character or duration; and 2) the excess payment is approved by the chief judge of the circuit court of appeals or the chief judge’s designee.913 Habeas corpus is a review of mat- ters collateral to, and thus outside of, the trial record. Development of such claims requires the investigation, or re-investigation, of matters which might have been but were not litigated at trial, on appeal, or even in the initial state habeas petition. This work cannot be done without significant assistance from expert witnesses and other specialized service providers who may or may not have been involved in the orig- inal trial.914 Given the crucial role that specialists play in capital habeas petitions, the presumptive limit of $7,500 is far too low, and the vast majority of habeas cases require authorization for additional funds, as discussed below.915
Despite habeas being a “highly complex and challenging area of law,” requir- ing investigation of matters outside the trial and appellate record, both § 2254 and
912 RichardBurr,TexasRegionalHabeasandAssistanceProject,PublicHearing—Birmingham,Ala., Panel 3, Writ. Test., at 8 n.6.
913 18U.S.C.§3599(g).
914 Manyfederalandsomestatecapitaltrialdefenseteamsutilizemitigationspecialists.Amitigation specialist is an expert qualified to investigate, evaluate, and present psychosocial and other mitigating evidence to persuade a judge or jury that a death sentence is an inappropriate punishment for the defendant. A mitigation specialist coordinates the investigation of the defendant’s life history, identifies issues requiring evaluation by a psychologist, psychiatrist, or other professional, and helps attorneys find experts to present testimony and documentary materials for review. A defense counsel’s failure
to investigate or present mitigating evidence at the state or federal trial level could have harmed the defendant and possibly result in a claim of ineffective assistance of counsel. Therefore, habeas counsel often need to conduct their own investigation into the mitigating circumstances for a defendant. For more, see generally Public Hearing—Birmingham, Ala., Panel 3 transcript and written submissions.
915 Thisistrueindirectdeathcasesaswellasauthorizeddeathcasesinfederaldistrictcourts routinely exceed the $7,500 threshold. A 2010 AO study found that the median service provider cost in an authorized case was $83,029, and was even higher if the case went to trial. See Jon B. Gould & Lisa Greenman, Update on the Cost and Quality of Defense Representation in Federal Death Penalty Cases, Report to the Committee on Defender Services, Judicial Conference of the United States (2010).
No recommendation presented herein represents
the policy of the Judicial Conference of the United 2 0 1 7 R E P O R T O F T H E A D H O C C O M M I T T E E T O R E V I E W T H E C R I M I N A L J U S T I C E A C T 191
 States unless approved by the Conference itself.

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