Appropriations for FY2005: Commerce, Justice, State, the Judiciary, and Related Agencies Page: 64 of 94
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CRS-57
specifically for panel attorney compensation. The supplemental brought the total
FY2004 appropriation for this account up to $624.1 million.
The Consolidated Appropriations Act (P.L. 108-447, enacted December 8,
2004) appropriates$676.4 million for Defender Services in FY2005, an 8.4% increase
over total FY2004 funding of $624.1 million. The appropriation, however, is subject
to a 1.34% cut in discretionary spending (as the result of two rescissions in the act
which affect Judiciary budget accounts), leaving Defender Services with $667.3
million in available funding for FY2005.
Nearly all (95%) of the Judiciary's requested increase for FY2005 was sought
for inflationary and other adjustments to maintain current services. Inflation and
current services adjustments included $45.9 million to cover increased costs of an
additional 11,000 projected representations of indigents in non-capital cases (cases
in which federal prosecutors do not seek to impose the death penalty), 3,300
representations not funded by the FY2004 appropriation, and $3.5 million in
additional costs associated with capital cases (cases in which prosecutors do seek the
death penalty). The increase also included $12.9 million to provide pay and benefit
adjustments to Federal Defender Organization staff and $2.7 million for a 1.7% hike
in the hourly rate paid to panel attorneys. The hourly rates paid would increase from
$90 to $92 for non-capital casts and $125 to $127 for capital cases, effective January
1, 2005.
The Judiciary also requested one program increase for the Defender Services
account, specifically an increase in the hourly rate of compensation to panel attorneys
in capital cases. In these cases, the current hourly pay rate for panel attorneys, in
place since 1989, is $125. The Judiciary requested $3.0 million to allow for the rate
to be increased, beyond the inflationary increase referred to above, to $159. The
Judiciary noted that the Antiterrorism and Effective Death Penalty Act of 1996
established $125 per hour as the statutory maximum while also, however, providing
for annual cost of living adjustments to this rate. The $159 figure, according to the
Judiciary, represented the culmination of all statutorily authorized adjustments since
1996.
Testifying before the House CJS Appropriations Subcommittee on March 11,
2004, a Judiciary spokesman underscored the need for a substantial increase in the
hourly rate paid to panel attorneys in capital cases. In his prepared statement, U.S.District Judge John G. Heyburn II said that a "very limited number of attorneys"
have the qualifications set by law to represent defendants charged with the death
penalty. Consequently, the same lawyers are asked repeatedly to assume this "very
burdensome responsibility." When lawyers take on a capital case, he said, the
remainder of their practice is foregone for the length of the case, which frequently
lasts at least two years. Since most of these lawyers are sole practitioners or in very
small firms, their sole source of income for the duration becomes the $125 an hour
paid by the government, "well below the rates charged in private practice." The
$125 rate, Judge Heyburn said, must cover not only the attorney's salary but also
overhead expenses, including retirement and benefits and salary for office staff.
During the case, "future work is foregone and the law practice has to be rebuilt at the
[case's ] conclusion .... ." Further, Judge Heyburn observed, the number of capital
cases is increasing. He concluded that the hourly pay for panel attorneys in capital
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Fergusson, Ian F. & Epstein, Susan B. Appropriations for FY2005: Commerce, Justice, State, the Judiciary, and Related Agencies, report, January 12, 2005; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metacrs7885/m1/64/: accessed July 17, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.