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On January 4, 2012, the U.S. Court of Appeals for the Fourth Circuit issued a Notice of Special Procedures for Reviewing Attorney Compensation Requests in Death Penalty Cases.
The Judicial Council of the Fourth Circuit adopted certain amendments to the existing procedures for reviewing attorney compensation requests in federal capital prosecutions. Specifically, they added that requests for compensation in amounts over $100,000 per attorney would be presumed excessive at the district court level, if made in connection with a federal capital prosecution. Similarly, amounts in excess of $50,000 at the appellate level are presumed excessive.
For cases involving 28 U.S.C. 2254 or 2255, compensation requests over $50,000 at the district court level and $30,000 at the appellate level are presumed excesssive.
Criticizing these new procedures, the American Bar Association responded with comments submitted to the Judicial Council of the Fourth Circuit.
While the ABA does not take a position on the death penalty, it does promote the fair administration of the death penalty and has devoted resources to ensuring that every person facing the death penalty is afforded the assistance of competent and skilled counsel at every stage.
In their comments, the ABA points out that the new procedures are inconsistent with the delivery of high quality representation for the clients involved. As the ABA writes, "high quality legal representation is demanded for all cases in which the death penalty is a possibility." Compensation, the ABA states, is linked to the quality of representation.
The ABA also points out that the current limitations on the fees does not correlate to the actual number of hours that qualified counsel is required to put into a capital case, thus making it extremely difficult to recruit competent capital counsel.
The new procedures took effect on March 1, 2012.