FISCAL NOTE
Date Requested: March 08, 2021
Time Requested: 10:11 AM |
| Agency: |
Public Defender Services |
|---|
| CBD Number: |
Version: |
Bill Number: |
Resolution Number: |
| 2744 |
Introduced |
SB572 |
|
|---|
| CBD Subject: |
Crime |
|---|
|
FUND(S):
0226
Sources of Revenue:
General Fund
Legislation creates:
Increases Existing Expenses
Fiscal Note Summary
Effect this measure will have on costs and revenues of state government.
Summarize in a clear and concise manner what impact this measure will have on costs and revenues of state government.
The passage of Senate Bill 572 would reinstate the death penalty for murder in the first degree if aggravating circumstances are present without offsetting mitigating circumstances. A mandatory appeal to the Supreme Court of Appeals of West Virginia is set forth. If the death penalty is not imposed, Senate Bill 572 provides that the punishment is to be life without probation or parole, thus eliminating the finding of mercy that, at this time, permits eligibility for parole.
The passage of the bill means that charges of murder in first degree which cannot be pled to a reduced charge will be tried and appealed due to the harshness of the penalty. This will increase the compensation paid by Public Defender Services to counsel who take appointments to such a case and to support staff consisting of experts, paralegals, investigators, and social workers. For those cases tried in circuits in which a public defender corporation operates, it will mean the hiring of counsel who have training and expertise in death penalty cases and the hiring of mitigation specialists. It will also require the agency to have on staff two additional appellate counsel and two additional habeas counsel dedicated solely to such cases, together with a paralegal and investigator to support the counsel.
The amount of these increased expenses is estimated to be $3,081,700.
Fiscal Note Detail
| Effect of Proposal |
Fiscal Year |
2021
Increase/Decrease
(use"-") |
2022
Increase/Decrease
(use"-") |
Fiscal Year
(Upon Full
Implementation) |
| 1. Estmated Total Cost |
3,081,700 |
3,081,700 |
3,081,700 |
| Personal Services |
460,800 |
460,800 |
460,800 |
| Current Expenses |
2,520,900 |
2,520,900 |
2,520,900 |
| Repairs and Alterations |
0 |
0 |
0 |
| Assets |
100,000 |
100,000 |
100,000 |
| Other |
0 |
0 |
0 |
| 2. Estimated Total Revenues |
0 |
0 |
0 |
Explanation of above estimates (including long-range effect):
Please explain increases and decreases in personal services, current expenses, repairs and alterations, assets, other costs and revenues, including assumptions and data sources and delineation between start-up and ongoing costs. Please also include a long-range schedule of costs and revenues if fiscal impact is expected to vary in future years.
The calculation for the fiscal note required separate consideration of three entities: (i) the private counsel who are on a panel in a judicial circuit to take court appointments (“Panel Attorneys”); (iii) the salaried public defenders (“Public Defenders”); and (iii) Public Defender Services’ Office of Legal Representation, which includes an Appellate Advocacy Division and a Habeas Corpus Division (the “Agency”).
Panel Attorneys take court appointments in circuits in which no public defender corporations operate (12 judicial circuits) and take court appointments in the remaining circuits when the public defender corporations have a conflict or extensive caseload. In FY2020, Panel Attorneys submitted invoices for services in 228 cases in which murder was the most serious charge. Invariably, murder in the first degree is alleged with the realization that through pleas or lesser included instructions, the charge may be reduced. Presumably, the penalty of execution or life without possibility of probation or parole means that more murder charges will be resolved by pleas to lesser charges. However, if murder in the first degree is pressed, no incentive exists to do other than try the case considering the penalties (or at lease present substantial evidence relating to aggravating or mitigating circumstances). For this fiscal note, the assumption is that, out of the 228 cases, 25 would proceed to trial. The final calculation for these trials is the total amount of $1,727,300 as set forth below.
No certification yet exists for handling cases that could result in life imprisonment. As a counter to this lack of certification, two counsel are appointed to these cases in many circumstances in the belief that the combined experience and knowledge will overcome any challenges. Presumably, with the reinstatement of the death penalty, the courts will continue the practice of appointing two counsel to handle such matters. While the experience may vary between the two counsel, the rate of compensation is the same under the governing statute. The calculation is based on the representation by two attorneys. The calculation assumed; (i) a pretrial phase in which the total compensation to the attorneys would be $14,400; the expense of a paralegal would be $2,000; the expense of experts would be $12,500; and the expense of a social worker, providing assistance with mitigation efforts, would be $800; (ii) a trial on the charge in which the total compensation to the attorneys for out of court work would be $2,400; the total compensation to the attorneys for in-court work would be $6,400; the total expense of a paralegal would be at the capped amount of $1,000 for in-court work and $400 for out of court work; and experts’ testimony would be compensated at $10,000; (iii) a sentencing phase in which the total compensation to the attorneys for out of court work would be $960; the total compensation to the attorneys for in-court work would be $2,560; the total compensation for experts’ testimony would be $5,000; the total expense of paralegal work out of court would be $320; and the total expense of a social worker’s mitigation support would be $320; (iv) an automatic appellate proceeding for which compensation would be $8,100, which is four times the average cost of a normal proceeding, justified by the severity of the issue and the additional obligation of reviewing the sentencing phase; and (v) a habeas corpus proceeding based on the ineffective assistance of counsel that would be compensated at $1,932, which is the average cost of habeas proceedings in FY2020. The total cost of the prosecution and conclusion of a trial of a first degree murder charge would be $69,092. Multiplied by the 25 anticipated trials, the total amount of compensation to be paid and expenses to be reimbursed by the Agency would be $1,727,300.
The Public Defenders handled 62 murder cases in FY2020. Because “death penalty” cases require expertise that does not generally exist, the Agency would hire six (6) attorneys with experience in handling “capital” cases or “death penalty” cases in the federal system. These attorneys would be dedicated to handling all such cases on behalf of all 18 public defender corporations. This can be done by housing the attorneys in 6 public defender corporations with memoranda of understanding existing between and among the corporations or by creating an office of capital representation within the Agency. These attorneys would be supported by 2 social workers and 2 paralegals and would have incidental costs such as rent, experts’ expenses, and supplies. The total cost of this staffing would be $893,600, i.e., a budget of a small public defender corporation office.
The Agency handles significant appeals from cases handled by both Panel Attorneys and Public Defenders. The serious nature of the appeal in the death penalty case requires counsel separate from trial counsel so that trial counsel’s actions can be objectively evaluated. The record from the trial would be presumably substantial. Accordingly, the Agency’s Appellate Advocacy Division will probably be asked to handle many of the automatic appeals. The Agency would anticipate the need for 2 additional advocates at a cost of $166,400 including salary and benefits.
The Agency handles habeas corpus cases when courts cannot find private counsel to take such labor intensive and often expensive proceedings. Accordingly, the Agency’s Habeas Corpus Division would anticipate the need for 2 additional attorneys at a cost of $166,400, including salary and benefits.
The Agency would need to hire an additional paralegal and investigator to support these additional attorneys at a cost of $128,000, including salary and benefits.
The total cost of the amounts set forth above is $3,081,700.
Memorandum
Please identify any areas of vagueness, technical defects, reasons a bill would not have a fiscal impact, and/or any special issues not captured elsewhere on this form.
The Agency did not, and cannot, calculate the additional costs associated with any federal proceedings arising out of such cases.
Person submitting Fiscal Note: Dana F. Eddy
Email Address: Dana.F.Eddy@wv.gov