Brian Dorsey’s argument for why he should not be executed by the state of Missouri requires the kind of math familiar to any gig worker.
After Dorsey confessed to killing his cousins Sarah and Ben Bonnie with a shotgun in 2006, Missouri 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.
Dorsey is scheduled to be put to death on April 9, and a growing number of scholars, lawyers and activists are asking federal courts, along with Missouri Gov. Mike Parson, to stop the execution. They argue that regardless of how much these lawyers worked, the way they were paid created a perverse incentive: Work less to earn more per hour.
Paying lawyers a flat fee is a common practice across the legal system, from drunken driving to divorce cases, and it has been a way for cash-strapped courts and public defenders to keep their costs under control. But it has attracted more criticism when a life is at stake.
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. That figure does not begin to capture the scale of the issue, because some of the largest counties in California, including Los Angeles, paid flat fees in death cases for decades.
“Death sentences imposed under these systems often say more about the external funding limitations placed on counsel, and less about the nature of the crime or the culpability of the defendant,” said Emily Olson-Gault, director of the American Bar Association’s Death Penalty Representation Project.
Dorsey is one of at least three people on Missouri’s death row — out of 13 — whose lawyers were paid a set fee, according to the Missouri State Public Defender. So is David Hosier, who is scheduled to be executed on June 11. It’s impossible to tally the national scope of the problem, legal experts say, because courts don’t usually track such pay arrangements.
But using legal databases, The Marshall Project 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.
Willie Pye was the most recent person executed in the United States, on March 20 in Georgia. His lawyer was paid a lump sum of $345,000 to represent every single felony defendant in rural Spalding County in 1996, the year Pye was sentenced to death, according to his clemency petition.
Michael Aed, who represents Ger Lee for his role in the murders of four people in Fresno County, California, told KFSN-TV that getting paid a flat fee would be “basically suicide for my business.” After the ACLU of Northern California sent a letter of protest, the county agreed to pay him hourly but didn’t change its system for the future. Fresno County officials did not immediately respond to a request for comment.
Meanwhile, in Los Angeles County, records show a flat fee structure is still on the books for capital cases — and the rate has not increased for at least three decades. To the south in Orange County, lawyers say they’ve been asked to compete by bidding to get paid as little as possible. (A court spokesman in Orange County said there are relatively few death penalty cases there, and lawyers’ fees are determined on a case-by-case basis.)
“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.”
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.
A spokeswoman for Riverside County said in an emailed statement that officials there have had “a number of meetings with capital defense attorneys and we understand their concerns.” But she broadly defended the use of flat fees, saying the system is “used widely” throughout the state and that the $70,000 to $130,000 rate per case is “comparable to our surrounding counties.”
Courts across the country have been paying flat fees since at least the 1970s, when the U.S. Supreme Court briefly abolished and then revived the death penalty. The Missouri State Public Defender, a state agency, began paying some lawyers this way in the 1980s, according to Sean O’Brien, a longtime defense attorney who teaches law at University of Missouri-Kansas City. It kept costs for the state under control amid a wider crisis in public defense funding. For the lawyers paid a flat fee, “It can be a boost to your cash flow at the beginning, but it’s a drain on your cash flow if you actually do the work,” O’Brien said.
Flat fees have been slowly falling out of favor ever since. In 2003, the American Bar Association said flat fees would “discourage lawyers from doing more than what is minimally necessary.” And in 2013, the Kansas Supreme Court struck down a death sentence in which the defendant’s lawyer was paid such a fee.
With a flat fee, lawyers don’t need to track their work. In the Dorsey case, “I don’t know if these trial lawyers made minimum wage or $5,000 an hour, and you can’t know,” O’Brien said. The director of the Missouri State Public Defender, Mary Fox, wrote in a letter to the governor that her office stopped using flat fees after Dorsey’s trial, recognizing that they remove the incentive to do an effective job.
In recent years, Dorsey’s current lawyers say they have made discoveries about his past that his original lawyers might have brought to the jury if they’d sought money for investigators.
According to their interviews with people from his past, he was a successful football player in high school, raising the question of whether head injuries might have played a role in his erratic behavior, as they have for many prominent athletes. He began using crack cocaine in high school, possibly as a way to treat his undiagnosed depression, and he attempted suicide twice. Doctors who examined his case recently wrote he was likely experiencing psychosis during the murders, undermining his first-degree murder charge, which requires intent in Missouri.
Prosecutors argued that Dorsey sexually assaulted Sarah Bonnie after killing her and poured bleach on her body. Because he pleaded guilty, these claims were not fully tested in court. (Dorsey has no memories of the crime, but his lawyers note he was never charged with rape, and only one police officer said he smelled bleach.) In media reports and court records, the Bonnies’ family members appear to be split on whether Dorsey should be put to death.
The lawyers who received $12,000 each, Scott McBride and Chris Slusher, declined to comment for this article. During a 2011 hearing over Dorsey’s appeal, they acknowledged they could have asked for more money for a fuller investigation but said that dwelling on his possible psychosis and other mitigating factors might have undercut their overall strategy: Accept blame, express remorse and seek mercy.
That strategy, they added at the hearing, was why they encouraged him to plead guilty in the first place. But this also happened to save them hundreds of hours of work. Dorsey’s current lawyer Megan Crane points out that they failed to use a tactic required by ethical standards: demand that prosecutors drop the death penalty in exchange for a guilty plea.
The Missouri Supreme Court and state attorney general have pushed back at his appeal and argue Dorsey has failed to find enough evidence that the flat-fee arrangement adversely affected his lawyers’ choices. “Attorneys are not exempt from the desire to balance working to earn money and having enough free time to enjoy their life outside of work,” Assistant Attorney General Terrence Messonnier wrote in a 2016 court filing, adding that an hourly rate might encourage lawyers to be less efficient and pad the bill.
There’s not much research comparing payment arrangements, but a 2012 Yale Law Journal study found that, in Philadelphia, public defenders who are paid a salary “reduce their clients’ murder conviction rate by 19% and lower the probability that their clients receive a life sentence by 62%” compared with private lawyers paid flat fees.
And when the ACLU pushed to end the flat-fee system in Los Angeles County in the mid-2000s, it was because civil rights attorneys had started to notice a stark difference in the outcomes. “All the cases that were going to trial and ending in death were handled by private, appointed counsel — and they were paid by this flat-fee contract,” said Natasha Minsker, a lawyer and consultant who was overseeing the organization’s death penalty work at the time.
Last week, Los Angeles County officials said they are “currently analyzing the issue” and “open to considering potential changes, including transitioning to an hourly rate to better align with the federal courts.” In the meantime, the county pointed out that lawyers can petition the courts for additional money.
Dorsey’s scheduled execution comes at a moment of flux for Missouri, which was an epicenter of executions a decade ago and now has dueling efforts in its state legislature to expand the death penalty and abolish it. (Both are led by Republicans.) Dorsey is also joining a wave of federal lawsuits around religious rights in the execution chamber. Missouri prison officials may set IV lines for lethal injection by making incisions — a procedure known as a “cut-down” — without pain medication, which Dorsey argues in court filings will interfere with his ability to speak with his spiritual advisor.
Dorsey’s lawyers argue that his death will be especially traumatic for corrections officers who spend their days with Dorsey. More than 70 of them have called for the governor to spare his life. They even allow him, as the prison barber, to use scissors to cut their hair. “They all attest to Brian’s rehabilitation, remorse and ultimately his redemption,” said Crane, his lawyer. “He says he wants to find a way to make people's lives better to atone for what he’s done.”
She noted that Dorsey’s original lawyers could have visited him more often, getting to see his remorse so they could fully convey it to the jury. But under the flat-fee arrangement, visiting him would have cost them money.
