Page 241 - Ad Hoc Report June 2018
P. 241

 9.3.1 Inconsistent Defense Across the Nation
As with voucher review and other aspects of the system for delivering public defense, the Committee found significant disparities in capital cases across dis- tricts and circuits. Ruth Friedman, who as Capital 2255 Project Director works to coordinate representation in these cases across the country, told the Committee that in some circuits, “there is a history, there is a culture,” of not adequately funding and supporting effective capital representation, whether at trial or on habeas review.
She said that in these circuits there are clear, “across the board” challenges to effec- tive capital representation. “It’s true in terms of money spent, it’s true in terms of whether the courts listen to or accept our recommendations. It’s true in terms of who gets sentenced to death and how many.”928
She summed up the concerning state of affairs:
The level of funding litigants receive for expert and investigative services, as well as the compensation their CJA counsel receive, appears to be an acci- dent of geography, rather than the result of any uniform standard applied across all federal jurisdictions. Certainly some differences may be expected across the country. But where neither state law concerns nor state practices are legally relevant, the wide variation in the kind of process a federal capi- tal prisoner receives in his collateral proceedings is troubling at best.929
A federal defender in the Philadelphia hearings noted that “the disparity [in] funding between districts in certain regions in this nation versus the funding given in other districts is incredibly dramatic....[I]t’s the core of what I’ve described as
a fundamental flaw in the system, [which] is that we’ve got a totally deregulated system that turns on individual judges’ appreciation of the defense function.”930 Therefore, a person facing a death sentence in one district may have a “wildly dif- ferently funded defense” than someone in another district under what should be a national standard of due process and effective Sixth Amendment representation.931 The Committee is deeply concerned that sheer geography or judge assignment could prove to be a substantial factor in deciding whether a defendant will be sen- tenced to death and executed.
The Committee heard testimony that disparities can be rooted in both formal and informal policies. The Fifth Circuit, for instance, has a presumptive cap on attorney’s fees in habeas representations. That circuit has set its own limitations, adopting a presumptive cap of $35,000 for federal capital habeas representation in
928 RuthFriedman,Director,FederalCapitalHabeasProject,PublicHearing—Birmingham,Ala., Panel 3, Tr., at 37.
929 RuthFriedman,Director,FederalCapitalHabeasProject,PublicHearing—Birmingham,Ala., Panel 3, Writ. Test., at 17.
930 JimWyda,FPD,D.Md.,PublicHearing—Philadelphia,Pa.,Panel10,Tr.,at21. 931 Id.
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 197
 States unless approved by the Conference itself.

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