To join the program, participating counties contribute according to a formula that takes into account both population size and the number of capital murder cases filed during a 10-year period, between 1998 and 2008.
The amount that counties contribute increases each year, reaching a maximum during year six. There is no cost to counties during the first year.
According to its recently approved contract, Parker County will pay $19,171 the second year, $25,561 the third, $38,341 the fourth, $51,121 the fifth and $63,902 in year six.
“It’s essentially an insurance risk pool,” Jack Stoffregen, chief public defender for the program, explained. “Counties hope they never have a case, but if they get one, they have protection.”
A capital murder case can cost $250,000 and up, Stoffregen said.
Stoffregen said the program does not cover appeals.
“There are inherent conflicts between the trial attorneys and appellate attorneys,” he said, “with the appellate attorneys raising the issue that the trial attorneys are not doing a good job.”
Death penalty factors
The cost of pursuing the death penalty can be significant, Swain said, but prosecutors can’t let affordability affect the decision of whether or not to seek it.
“We’re certainly aware of it, but we can’t be driven by it,” he said.
After determining the case meets one of nine legal definitions for capital murder — which include murder of a child under 10 years of age, murder during the course of committing another felony, murder for hire and murder of a peace officer or firefighter — prosecutors must look at other factors when deciding whether or not to seek the death penalty, Swain said.
They consider the way the offense was committed, the facts surrounding the case and the defendant’s criminal history, he said. They also look at the defendant’s other history, factoring in any offenses that demonstrate a threat to the community, even though the defendant may not have been convicted of them.
“In order to decide to seek the death penalty, you have to have the kind of facts to support seeking the death penalty,” Swain said.
During the punishment phase of a capital murder trial, a jury must look at whether there is a probability that the defendant poses a continuing threat to society and whether there are any mitigating circumstances warranting life imprisonment.
Prosecutors must decide if they can reasonably expect to prove certain things to the jury regarding those issues.
Though there will be other expenses associated with a death penalty case, Swain said, having a contract with the public defender program gives the county a set figure for much of the defense costs and cuts down on the risk of blowing the indigent defense budget for a year or longer.