Column: Simply Put, the Death Penalty Cost Too Much

Stan Garnett, the District Attorney in Boulder, recently told the people of Colorado that, although he was not morally or philosophically opposed to the death penalty, he had simply concluded that it was too expensive, time consuming, and subject to random application. As reported in Colorado’s Daily Camera, he said that he found it to be impractical and of limited law enforcement relevance.

A recent death verdict had cost the state $18 million to fund its appeals. The budget of the county prosecutor’s office is $4.6 million a year, and he had 1,900 other felonies to prosecute. Boulder County has not executed anyone in the 140 years since statehood.

Damon Thibodeaux had confessed after a nine-hour interrogation to raping and killing his 14-year old cousin. He later recanted the confession but was convicted and sentenced to death in Jefferson Parish, Louisiana. He spent 15 years on Death Row in Angola Prison. In September of this year, after a five-year investigation in which the District Attorney cooperated fully, including DNA evidence, his conviction was set aside and he was released a free man. Capital defense experts claim that 140 other Death Row prisoners have been exonerated since 1973, 18 by DNA.

These two factors—financial burden and fear of executing an innocent person—are defining the terms of the current debate on the death penalty. Few such discussions seriously mention factors formerly considered crucial—morality, religion, deterrence, racial discrimination, except in passing. Nor do other seemingly important matters such as random unfairness, mental illness of offenders, logistical problems with the humane administration of lethal injection drugs, seem to affect the great majority of the populace or political decision makers very much.

Whatever the nature of the debate, the trend is clear. Five states in the last five years have ended capital punishment. Twenty-nine states have not conducted an execution in over five years, twenty-three in over ten years. There were 224 death sentences and 85 executions in 1985 compared to 78 death sentences and 43 executions in 2012.

Thirty-three states still have the death penalty but few use it. Three-fourths of the executions in the U.S. in 2012 took place in just four states: Texas, Oklahoma, Mississippi, and Arizona.

Even a conservative Supreme Court has whittled away at the scope of permissible candidates for the death penalty by eliminating broad categories: Cohen-1977 (rape not resulting in death); Emmund-1982 (minor participants who do not kill or attempt to kill); Ford-1986 (insane persons); Thompson-1988 (juveniles 15 and under at the time of the crime); Atkins-2002 (mentally retarded); Roper-2005 (under 18 at the time of the crime); Kennedy-2008 (victim’s life is not taken).

For voters, however, constitutional issues have little sway. By far, the most important consideration is simply that capital punishment costs too much. The budget pressures and burgeoning costs faced by state and local government, especially in a time of economic uncertainty, are leading to a reconsideration of a host of subjects previously thought to be politically untouchable—mandatory minimum sentencing, law enforcement expenses, police on the street, and state corrections systems. Get tough on crime has given away to what can we cut out of the budget.

Repeated studies and estimates have concluded that capital prosecution costs have skyrocketed: Maryland ($37 million in overall costs for each execution since 1978, $3 million for each prosecution); Florida ($3.2 million per case); Texas ($2.3 million per case); Utah ($1.6 million). Federal capital cases are said to cost eight times the cost of non-capital murder cases.

With the highest number of prisoners on Death Row, California’s example is illustrative. The state has spent approximately $ 208 million in overall costs for every execution administered. It currently costs about $100,000 per year per prisoner on Death Row.

Despite these expenditures, the Chief Justice of the California Supreme Court estimates that it will be over three years before problems relating to lethal injections can be resolved in the courts sufficiently to permit executions. About 1 % of the death sentences imposed in the last thirty years have resulted in an execution. Capital punishment in California, which has almost a fourth of all prisoners on Death Row, appears to be an irremediable mess.

There is one voice of counter-argument to the growing momentum on the cost issue. Dudley Sharp, Resource Director of Justice For All, has written and spoken prolifically that these cost studies are flawed and that capital case costs could be brought to an acceptable level. His forceful essays are easily accessible on the internet and are worth reading.

Although I respect his analysis, my problem with Mr. Sharp’s position comes primarily from working next to four of the best and brightest trial and appellate prosecutors I have met. Each investigated and prosecuted capital cases and devoted enormous amounts of time and energy. None resulted in a death verdict, but in the zero sum game of prosecutors the cases kept them from pursuing other proactive cases. The prosecutions also consumed a huge amount of time and resources of investigators, defense attorneys, judges, and court staff at every stage of the case, investigation, pre-trial, trial, and appeals. I cannot conclude that these costs are comparable to non-capital prosecutions.

Moreover, it appears to me that the studies seem to leave out some expenditures and costs to society, particularly intangible, difficult to quantify ones. Perhaps more importantly, regardless of whether these costs could be contained, local governments increasingly believe that their escalation is exorbitant and inevitable. This perception is driving the momentum. Even Mr. Sharp’s hometown of Houston, once called the democratic capital of capital punishment in the world, is slowly decreasing its use.

The other factor affecting the debate on capital punishment is the waning confidence that no state will execute an innocent defendant. Since 1980 DNA tests have exonerated about 300 felony prisoners, many of whom had already served lengthy prison sentences. This development has led to some public questioning of the assumption that our multi-layered system of constitutional protections guarantees truthful verdicts and just sentences. Instead some criminologists believe that from 1-3% of those in prison did not commit the offense of which they were convicted.

Professor Samuel Gross of the University of Michigan estimates that the conviction error rate in capital cases since 1990 is between 2.5 and 4 %. Professor John Blume of Cornell Law School conducted a study that concluded that 88% of the executed defendants who “volunteered” by terminating their appeals were either mentally ill or had a serious substance abuse problems.

Other experts consider these figures to exaggerate the problem, and some earlier studies dispute the assertion that the legally exonerated were factually innocent. However, to a person on the street, the small but nagging uncertainty about the state taking the life of an innocent person is increasingly adding to the tipping point in the decision about the death penalty.

The United States ranks fifth in the number of executions imposed, behind China, Iran, Saudi Arabia, and Iraq. Nice club to be a member of. No other G7 nation permits capital punishment. To these latter countries the evolution of justice has made punishment by death a barbaric anachronism.

On many of these factors and sub-questions in the debate, I think that reasonable minds can differ, and I respect the contrary views of others, particularly former law enforcement colleagues, who still cling to the propriety of the death penalty. It is not an unreasonable conclusion that, from a policy and moral perspective, capital punishment is an appropriate sanction in the most extreme cases.

Just so the record is clear, however, my personal view is that the death penalty in the 21st Century is morally wrong in a civilized society; that it can be freakishly wanton in its selection of people to execute; that its unforgiving finality strains the entire criminal justice system; that it provides precious little or no deterrence to craven impulsive murderers; and that there continues to be a possibility of a botched and inhumane administration of the instrument of death.

Yes, and that in a perfect storm of unlucky factors, a poorly represented, especially African American charged with killing a white victim, in a rural county of the South particularly but not exclusively, faces a real risk of being convicted and executed, even though he is an innocent man. A real enough risk to convince him to plead guilty to life imprisonment to something he didn’t do.

If I ever move to Texas, that should be enough to convince some trial prosecutor to use one of his peremptory challenges to keep me off of a capital jury.

Regardless of our disagreements on these different aspects of the debate, I believe that an increasing number of people, including law enforcement folks, are coming to the conclusion that the exorbitant costs of the death penalty do not represent a wise use of the scarce resources devoted to investigating and prosecuting crime.

And that reason, if for no other, should be enough to end the death penalty in America.

Read Part 1

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