Some states still pay defense attorneys flat fees in death penalty cases, creating perverse incentives when a life is at stake, critics say. Though many states have turned away from flat fees in death penalty trials, including Texas and Missouri, a Marshall Project and Los Angeles Times review of court filings and media reports found they paved the way to death row for at least 20 people in the last four decades. It found death penalty cases in more than a dozen states — including California, Florida, Indiana and Arizona — that involved flat fees as far back as the 1980s, with pay ranging from $800 to $180,000. “An attorney that isn’t going to put in any work or minimal work will probably be making $200 an hour,” said Southern California defense attorney John Aquilina. “Somebody that’s going to put in thousands of hours may generate a dollar an hour. And there’s really no supervision. There’s no restriction. There’s nobody who’s telling you you’re putting in too many hours or you’re not putting in enough hours.”
Recently, Scholars, lawyers, and activists have been pointing to the flat fee structure while urging a federal court to stop the execution of Brian Dorsey in Missouri, who is set to be put to death on April 9. The state paid two lawyers $12,000 each to defend him. If they had worked 3,557 hours — the average time spent by defense lawyers in death penalty cases, according to a 2010 report commissioned by the federal courts — they would have each earned $3.37 per hour. Low flat rates have also driven experienced lawyers away from taking court appointments to work on death cases. After a particularly time-consuming case that ended this year in Riverside County, California, Aquilina — who’s been a lawyer since 1981 — finally decided that he couldn’t take any more death penalty cases in counties that pay flat rates. “It’s gonna be a cold, dark day before I take another one,” he said.
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