NCPA - National Center for Policy Analysis


January 29, 2008

At the heart of the debate over how much to spend on the legal defense of alleged killers, lies a paradox, says Jeffrey Toobin in the New Yorker.  When the evidence is incontrovertible and the crime heinous, the cost of defending the alleged culprit is usually higher.

For example:

  • When it is fairly obvious the defendant committed a capital crime, the defense team is required to search for any mitigating factor that might convince a jury that the defendant's life be spared, which essentially means spending money on experts such as forensic psychiatrists. 
  • A 2003 Supreme Court decision extended the search for mitigating factors to a defendant's early life, making it more or less mandatory for defense teams to compile expensive mini-biographies of clients.

It isn't clear how to keep such costs down:

  • Some states cap the legal fees that can be spent on death-penalty cases; Florida sets its cap at $15,000 and South Carolina and Oklahoma at $25,000.
  • But spending on experts, which isn't subject to those limits, often push the total cost in those states to six figures.

The costs can be enough to derail a trial entirely, as is the case with the Georgia trial of Brian Nichols who, in 2005, shot a judge and a court reporter in a courtroom while making an escape; he then killed two more people, stealing cars and taking a hostage.

More than two years later, the cost of paying for experts has played a large role in exhausting the funds of the Georgia agency charged with covering the defense of death-penalty defendants.

  • It has already paid $1.2 million so far in legal fees and expert bills.
  • With Nichols's legal team refusing to go on without further payment, jury selection hasn't even been completed.

Source: Robin Moroney, "The High Price of Defending Killers," Wall Street Journal,  January 28, 2008, and Jeffrey Toobin, "Death In Georgia: The high price of trying to save an infamous killer's life," New Yorker, February 4, 2008.

For WSJ text: 

For New Yorker text: 


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