Testimony before the Pennsylvania Senate
Government Management and Cost Study
Commission
North Office Building, Room 1
Harrisburg, Pennsylvania
June 7, 2010
by Richard C. Dieter
Executive Director
Death Penalty Information Center
Introduction
Good morning, Chairman Argall, Members of the Commission. I would like to
thank you for the opportunity to testify before you today on this important issue.
My name is Richard Dieter. Since 1992, I have been the Executive Director of the
Death Penalty Information Center in Washington, DC. The Center is a non-profit
organization that conducts research and publishes reports on issues related to capital
punishment in the United States. I am an attorney and also an adjunct professor at the
Catholic University Law School in Washington.
The Center's role is not to advocate for particular pieces of legislation but to
focus on research and trends in the death penalty, identifying problems and pointing to
possible remedies. In my presentation today, I hope to give the Commission a national
perspective on the costs of capital punishment and to briefly address the corollary
question of whether the benefits of this system justify the costs. What I will not be able
to offer is a detailed account of what the death penalty is costing the Commonwealth of
Pennsylvania. That is an important, but by no means simple, research project of its
own. I would be more than happy to answer any questions that members of the
Commission may have at any time.
An Unusual Proposal
Perhaps some of you may be thinking that raising the death penalty as a cost
cutting measure is unusual, to say the least. Although money can be saved by
curtailing essential government functions such as schools and ambulances, no serious
lawmaker would consider eliminating them altogether.
1 Death Penalty Information Center (DPIC), 1015 18" St. NW, Suite 704, Washington, DC 20036; ph: 202-
289-2275; Web site: www.deathpenaltyinfo.org; email: rdieter@deathpenaltyinfo.org. Portions of this
testimony are drawn from a recent report from DPIC, "Smart on Crime: Reconsidering the Death Penalty
in a Time of Economic Crisis" (2009), which will be made available to members of the Commission.
Fortunately, your Chairman, Senator Argall, wisely asked everyone to keep an
open mind, and cautioned, "There are no sacred cows" here. But eliminating the death
penalty deserves your careful attention not because it is a wildly original idea, but
because the death penalty is not an essential government function and, in fact, is
probably one of the least effective and most costly programs, when measured in terms
of the people it affects. What Pennsylvania calls the death penalty is in reality a very
expensive form of life without parole. Despite having the fourth largest death row in
the country, Pennsylvania has not had an execution in 11 years.’ All three of the people
that the state has executed since the death penalty was reinstated by the U.S. Supreme
Court in 1976 have been defendants who waived their appeals. Pennsylvania has not
had a contested execution since 1962."
The second reason that the death penalty should be considered in a discussion of
costs is that choices have to be made from among many programs that claim to make
society safer. All aspects of the criminal justice system—apprehending offenders, trials,
and punishment—have costs. Cutbacks in any part of the criminal justice system can
potentially result in a less safe society. The death penalty is the most expensive part of
the system on a per-offender basis. Millions are spent to achieve a single death sentence
that, even if imposed, is unlikely to be carried out. Thus money that the police
desperately need for more effective law enforcement may be wasted on the death
penalty. Some programs will have to be cut.
In the 1990s, Pennsylvania was handing down close to 20 death sentences per
year. In recent years, however, the number of death sentences has dropped
dramatically—reflecting a national trend—and is now closer to 7 per year.’ This means
that about 1% of the murders committed in the state result in a death sentence.’ The
overwhelming majority —99%—are resolved with a life sentence or other punishment.
2 ‘Di, Argall, "Pa.'s New Cost-Cutting Commission Wants Your Ideas," Op-ed, Mar. 24, 2010, available at
http: / /senaterepublicannews.com/news/2010/0310/argall-032410.htm.
3 See DPIC's Web site http: / / www.deathpenaltyinfo.org, at Facts / Executions / Execution Database.
- Id. at Facts / Executions /Espy File.
. Id. at Facts/Sentencing.
. See FBI Uniform Crime Reports, annual. Pennsylvania had 723 murders in 2007.
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5
6
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But without using the death penalty, the state managed a significant drop in the
number of homicides in 2009. According to the recent FBI Uniform Crime Report,
Philadelphia experienced a 9% drop in homicides compared to 2008; Allentown had a
19% drop; and Pittsburgh had an impressive 46% decline in murders.’ There is much
that law enforcement is doing right in this state, but it is clearly not relying on the death
penalty.
What happens to a person sentenced to death in Pennsylvania?
In Pennsylvania, the state goes through the expensive and time-consuming
process of trying many death penalty cases and fighting appeals, but almost all cases
end with a life sentence. According to a recent Associated Press article, 124
Pennsylvania death sentences have been overturned and a re-sentencing has occurred.
When the cases went through the justice system a second time with the original errors
corrected, 95% (118) resulted in life sentences or less. Only 6 inmates were re-sentenced to
death. Twenty-one inmates on death row have died of natural causes or suicide since
1983. Six inmates have been exonerated when their convictions were reversed and they
were freed following acquittals or dismissal of all charges.°
Eliminating the Death Penalty Would Not Be Unusual
Judging by Pennsylvania's neighbors, eliminating the death penalty would not
be unusual at all. New York abandoned the death penalty in 2007 after a 12-year
experiment failed to produce any executions or any death sentences upheld by the
state's high court. New Jersey also abolished the death penalty in 2007 after a state
study commission strongly endorsed its end. Maryland came close to ending the death
penalty last year, and will probably try again next year. All executions have been on
hold since 2005. West Virginia does not have the death penalty and has a murder rate
far below the national average.
In other areas of the country, New Mexico abolished the death penalty last year.
Colorado, Montana, and Connecticut all came very close with at least one of their two
7 Id., 2009 Preliminary Report at <http:/ / www.fbi.gov /ucr/prelimsem2009/index.html>, Table 4 (pub.
May 2010).
8 "Facts about Pennsylvania's Death Penalty," Associated Press, July 24, 2009.
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legislative houses voting to end capital punishment. A recent poll of the nation's police
chiefs revealed they ranked the death penalty /ast among their priorities for crime-
fighting, they do not believe the death penalty deters murder, and rate it as the least
efficient use of limited taxpayer dollars.’
Pennsylvania's death penalty most closely resembles that of California.
Pennsylvania's population is roughly one-third of California's. Similarly, its death row
is about one-third of theirs, and the number of executions in the past 30 years is
proportionately comparable—they have had 13 executions to Pennsylvania's 3. The
leading criminal justice experts in California have concluded their death penalty system
is a disaster: Ronald George, Chief Justice of the California Supreme Court, called the
state's death penalty "dysfunctional" and said it would take even more money to fix the
system." The California Commission on the Fair Administration of Justice, chaired by
former Attorney General John Van de Kamp, labeled the system "broken" and "flawed"
and concluded that California would save hundreds of millions of dollars if capital
punishment was eliminated. Their report stated, “The families of murder victims are
cruelly deluded into believing that justice will be delivered with finality during their
lifetimes. . . .The strain placed by these cases on our justice system, in terms of the time
and attention taken away from other business that the courts must conduct for our
citizens, is heavy.”
How Much Does This System Cost?
Without a sophisticated cost study, it is impossible to know how much the death
penalty is costing Pennsylvania. We can, however, learn something from states that
have conducted such studies. The California Commission cited above found that the
state was spending $137 million per year on the death penalty (a system in which the
same defendants were sentenced to life without parole would cost $11.5 million per
° See RT Strategies, "Omnibus Poll and The Law Enforcement Leadership Poll," Oct. 29-Nov. 14, 2008.
The margin of error for the poll was +5.1 percent.
* Associated Press, April 30, 2006.
" “Report: California death penalty system deeply flawed,” New York Times, July 1, 2008 (AP article).
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year).” If the one-third size ratio holds true for costs, then Pennsylvania may be
spending as much as $46 million per year on the death penalty.
During the 9 years that New York had an active death penalty, it was estimated
that the state spent about $170 on this program, or close to $20 million per year.”
During that time the state had 7 death sentences. Pennsylvania has a much larger death
penalty system, with more than 50 times as many death sentences as New York. A cost
study in New Jersey estimated that the state had spent $253 million on the death
penalty since 1983." When New Jersey ended its death penalty in 2007, it had 9 people
on death row. A recent cost study in Maryland found the cost to taxpayers for 20 years
of the death penalty to be $187 million.” The state has 5 people on death row and has
conducted 5 executions in those 20 years.
Thus, states with death penalty systems much smaller than Pennsylvania's were
spending $10-20 million annually on capital punishment, with little or nothing to show
in return. Pennsylvania's bill is likely much higher, perhaps as much as $46 million per
year, but also with virtually no return.
Why Does the Death Penalty Cost So Much?
The principal reason why the death penalty is so expensive can be summed up in
one phrase: "death is different.""” Whenever the government seeks to execute a human
being, the legal system is required by a long line of U.S. Supreme Court precedent,
buttressed by American Bar Association guidelines, to apply a more methodical and
reliable process. The older, less guided form of capital punishment, was struck down as
unconstitutional in 1972.”
See California Commission on the Fair Administration of Justice, http: / / www.ccfaj.org/rr-dp-
official.html, June 30, 2008 [hereinafter California Commission].
. See, e.g., D. Wise, “Capital Punishment Proves to Be Expensive,” New York Law Journal, April 30,
2002, at p.1; see also “Costly Price of Capital Punishment—Case Shows Effort Expended Before the State
takes a Life,” Albany Times-Union, Sept. 22, 2003 (over $160 million spent in 7 years); N.Y. Times, Feb. 28,
2005 (citing costs of $170 million).
See Newsday, Nov. 21, 2005.
1 See J. McMenamin, “Death penalty costs Md. more than life term,” Baltimore Sun, March 6, 2008.
1 See Gregg v. Georgia, 428 U.S. 153, 188 (1976) (“penalty of death is different in kind from any other
punishment’).
7 See Furman v. Georgia, 408 U.S. 238 (1972).
Every stage of a capital case is more time-consuming and expensive than in a
typical criminal case. Jury selection takes much longer; more mental health and
forensic experts will be needed; two trials will be required—one for guilt and one for
sentencing; and the appeals will be far more complex, focusing on both the conviction
and the death sentence. Two attorneys are usually appointed for the defense, so that
issues of guilt and sentencing can be separately explored. The prosecution has to
respond with equal or greater resources since they have the burden of proof.
The exposure of so many mistakes in death penalty cases in recent years has
shown that the ideal of "heightened due process" in capital cases has often been
ignored. It has become clear that a shoddy, less expensive death penalty risks innocent
lives. It can also make the punishment of death depend on whether a state is willing to
provide adequate representation. The choice today is between a very expensive death
penalty and one that risks falling below constitutional standards.
Costs alone may not carry the day in deciding the future of an institution as
entrenched as capital punishment. The costs of the death penalty must be compared to
other ways of achieving a safer community. The money saved by giving up the death
penalty is desperately needed elsewhere: for hiring and training police, solving more
crimes, improving forensic labs and timely DNA testing, and crime prevention.
Expensive Life Sentences
It is important to note that all of these expenses are incurred in the many death
penalty cases that never result in an execution. Sentences or convictions can be
reversed, defendants may die of natural causes or suicide, governors occasionally grant
clemency, and entire statutes can be overturned by the courts. This often means that a
life sentence is the end result, but only after a very expensive death penalty process.
According to one comprehensive study, 68% of death penalty cases are reversed at
some point in the appeals process. When these cases are retried without the defect that
8 See, e.g., B. Miller, "D.C. Case Has Court Struggling for a Jury," Washington Post, April 29, 2001, at C1
(after 5 weeks of jury selection in a capital case, jury was still not complete).
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led to the reversal, 82% result in a sentence of life or less.” This is an extremely wasteful
process.
Opportunity Costs
Not every cost associated with the death penalty appears as a line item in the
state budget. Prosecutors, who are not paid by the hour, may say that nothing would
be saved by eliminating the death penalty because they would shift to other cases.
Judges and public defenders are usually salaried employees who will be paid the same
amount whether assigned to death penalty cases or other work. But it would be
misguided not to include the extra time that pursuing the death penalty takes compared
to cases prosecuted without the death penalty in calculating costs.
If it takes 1,000 hours of state-salaried work to arrive at a death sentence and only
100 hours to have the same person sentenced to life without parole, the 900 hours
difference is a state asset. If the death penalty is eliminated, the county or the state can
decide whether to direct those employee-hours to other work that had been left undone,
or choose to keep fewer employees. There is a financial dimension to all aspects of
death penalty cases, and proper cost studies take these "opportunity costs" into
account.”
The Effect of Plea Bargaining
One response to the high cost of the death penalty is that the threat of this
punishment produces financial savings because defendants are more likely to accept
plea bargains, thus avoiding the cost of a trial.” However, whatever savings are
19 See J. Liebman, et al., Capital Attrition: Error Rates in Capital Cases, 1973-1995, 78 Texas Law Review
1839 (2000). The author notes that in an additional 7% of the cases there is not even a conviction after
retrial.
” See, e.g., P. Cook, "The Costs of Processing Murder Cases in North Carolina," Duke University (May
1993). This is one of the most comprehensive cost studies conducted in the country. It included the costs
of the extra time spent by prosecutors, judges, and other personnel on death penalty cases and concluded
that the death penalty costs North Carolina $2.16 million per execution over the costs of a non-death
enalty system imposing a maximum sentence of imprisonment for life.
' | See, e.g., K. Scheidegger, "The Death Penalty and Plea Bargaining to Life Sentences,” Working paper
09-01, at 13, Criminal Justice Legal Foundation (Feb. 2009) ("repeal of the death penalty would likely
result in fewer pleas to life or long sentences, requiring that prosecutors either take more cases to trial at a
substantial financial cost or accept bargains to lesser sentences at a substantial cost to public safety.").
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produced through this ethically questionable practice are overwhelmed by the costs of
preparing for a death penalty prosecution even if it never goes to trial.
Some of the most thorough cost analyses conducted over the past 15 years
specifically address plea bargaining as an area that could affect the costs of the death
penalty, including those in North Carolina,” Indiana,” Kansas,™ and California,”
though some considered it too speculative to measure. These studies nevertheless
concluded that the death penalty added significantly to the costs of the criminal justice
system.
The dubiousness of any savings from this practice is underscored by a federal
death penalty cost study. The Judicial Conference of United States concluded that the
average cost of representation in federal death penalty cases that resulted in plea bargains
was $192,333. The average cost of representation in cases that were eligible for the
death penalty but in which the death penalty was not sought was only $55,772.” This
indicates that seeking the death penalty raises costs, even when the case results in a plea
bargain. It would be far cheaper to pursue murder cases if the death penalty were
never on the table, even taking some non-capital cases to trial, than to threaten the use
of the death penalty to induce a plea bargain because the legal costs of preparing for a
death penalty case far exceed the costs of a non-death penalty trial.
Moreover, data from some states refute the notion that the death penalty
increases the incentive to plea bargain. Prosecutors in New Jersey said that abolition of
the death penalty there in 2007 has made no difference in their ability to secure guilty
® See P. Cook, note 20 above. A more recent cost study at Duke University in North Carolina estimated
that the state is spending about $11 million per year on the death penalty, excluding the extra costs to the
prosecution and judicial system. P. Cook, "Potential Savings from Abolition of the Death Penalty in North
Carolina," American Law and Economics Review, advance access, December 11, 2009.
® Indiana Criminal Law Study Commission, January 10, 2002.
4 Performance Audit Report: Costs Incurred for Death Penalty Cases: A K-GOAL Audit of the
Department of Corrections, Kansas (2003).
® See California Commission, note 12 above.
* See, "Federal Death Penalty Cases: Recommendations Concerning the Cost and Quality of Defense
Representation," Judicial Conference of the United States (May 1998). The prosecution costs in death
cases were 67% higher than the defense costs, even before including the investigative costs of law
enforcement agencies.
pleas.” In Alaska, where plea bargaining was abolished in 1975, a study by the National
Institute of Justice found that since the end of plea bargaining, “guilty pleas continued
to flow in at nearly undiminished rates. Most defendants pled guilty even when the
state offered them nothing in exchange for their cooperation.”*
In addition, the practice of charging the death penalty for the purpose of
obtaining plea bargains is an unethical and unconstitutional interference with a
defendant's Sixth Amendment right to trial. It risks convicting innocent defendants who
plead guilty solely to avoid the possibility of a death sentence—which has occurred on
numerous occasions.”
Can the Costs of the Death Penalty Be Reduced?
An understandable reaction to the high costs of the death penalty is to ask
whether there are ways it could be made less expensive, such as by 1) curtailing the
appeals process, or 2) limiting trial expenses. However, the first interferes with a
critical part of the death penalty process and could result in the execution of innocent
defendants, and the second could end up costing more than the current system.
Although the appeals process is a tempting target for critics, it actually does not
constitute most of the death penalty’s costs. In the cost study conducted by Duke
University, trial costs in North Carolina made up over 4 times the appeals costs for each
death sentence imposed.” But cutting back on appeals presents another, more serious
problem.
” R. Lardini, “A year later, state assesses justice without death penalty,” New Jersey Star Ledger,
December 15, 2008.
28 _R. Fine, “Plea Bargaining: An Unnecessary Evil,” in Criminal Justice?, Robert Bidinotto, ed. Irving-on-
Hudson: Foundation for Economic Education, 1996; cited in “Plea Bargaining: Economic Costs and
Benefits,” undergraduate paper for The Economics of the Law, Washington University in St. Louis,
December 5, 1996; www.dianahsieh.com/ undergrad / pb.html.
»® See, e.g., P. Hammel, “Pardons granted to five in murder they didn't commit,” Omaha World-Herald,
January 27, 2009. The defendants who were pardoned had confessed to the crime to escape the threat of
the death penalty. “We were all scared of it. They were all threatening us with it,” said James Dean, one
of the five who was exonerated. Ada Joann Taylor, another defendant, said, “They told me they wanted
to make me the first female on death row." Id.
® See P. Cook, note 20 above, at p. 97, table 9.1.
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Since 1973, 138 people have been exonerated and freed from death row.” In
many of these cases, the appeals process was critical in overturning an unfair conviction
and allowing a new trial at which the defendant was acquitted. In other cases, even the
appeals failed to find evidence of innocence or a constitutional flaw in the process that
led to conviction, but the process at least allowed for the passage of time, during which
exonerating DNA evidence was discovered and tested, or the person actually
responsible for the crime was identified. The average time between sentencing and
exoneration was 9.8 years. If the appeals process were truncated there might not have
been time for the mistakes to be found or new evidence to emerge. Most of the innocent
people who were sentenced to death would have been executed before they could
demonstrate their conviction was a mistake.
The same can be said for attempts to shortchange the defense in capital trials.
Good lawyers who are given adequate resources often can uncover the evidence that
leads to the acquittal of an innocent defendant.
Good representation and thorough appeals are also necessary for guilty clients.
It is impossible to know before the process has run its course who is guilty and who is
innocent. Qualified defense lawyers are needed to ensure that juries have all the
information they need to make an informed sentencing decision. In 2003 the American
Bar Association issued new guidelines for the appointment and performance of defense
counsel in capital cases.” These guidelines were intended to establish a national
standard of practice, and courts that ignore them risk reversal at a later time.
From a cost perspective, the reasons for providing a full defense are also
compelling. In recent years the U.S. Supreme Court has overturned several death
penalty cases because of inadequate representation, including one from Pennsylvania.”
The thrust of these decisions is that death penalty cases require defense attorneys to
investigate every aspect of their client's history in order to prepare an adequate defense
on penalty as well as guilt. This implies states should hire experienced attorneys who
3! See DPIC, http: / / www.deathpenaltyinfo.org/innocence-and-death-penalty (visited June 3, 2010).
* "ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases,"
31 Hofstra Law Review 913 (2003) (revised edit.).
* See, e.g., Wiggins v. Smith, 539 U.S. 510 (2003); Rompilla v. Beard, 545 U.S. 374 (2005) (Pa.).
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know how to conduct such investigations, and give them the resources to carry them
out. If not, the case may have to be done over, requiring all the expenses of a death
penalty trial a second time. Cost studies of the death penalty indicate that 70% of the
expenses occur at the trial level. Two trials greatly increase the cost of the death
penalty, especially when the passage of time makes re-trial more difficult. If anew
conviction or sentence is handed down, a second appeals process must also be
conducted.
Conclusion: Time is Ripe to Reconsider the Death Penalty
The death penalty is on the decline across the country. Death sentences have
dropped dramatically since 2000. In the 1990s, the annual number of death sentences
averaged close to 300, but in recent years the number is down to 115, a 62% drop.
Skeptical juries concerned about innocence™ and the availability of life without parole
sentences have played a part in this decline. The rising costs of the death penalty have
caused some prosecutors not to seek the death penalty or to accept plea bargains.* The
current economic climate could accelerate this trend.
Ironically, a death penalty that is rarely used raises its own concerns. Are the
few people chosen for execution really the worst of the worst, or was their sentence just
the unfortunate product of ineffective representation or their crime being committed in
a high-death penalty county? Do the rationales of deterrence and retribution make
sense in a system where only a tiny fraction of eligible criminals in only a few states
receive the ultimate punishment?
Referring to the costs of the death penalty often evokes a response that money is
irrelevant when it comes to justice and a safer society. But the death penalty is not
essential to those goals, as the 15 states in the U.S. and the growing majority of countries
in the world without the death penalty have demonstrated. Even states with the death
penalty rarely use it. Justice can be achieved far more reliably and equitably without
the death penalty. There are more efficient ways of making society safer.
+ See R. Dieter, "A Crisis of Confidence: Americans' Doubts About the Death Penalty," DPIC (2007).
® See, e.g., T. Coyne, "Indiana Executions at slowest pace in 15 years," Chicago Tribune, June 14, 2009
(citing prosecutors’ hesitations due to the high costs of the death penalty).
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The economic crisis that began in 2008 continues, and its impact on states will be
felt for years to come. There is no reason the death penalty should be immune from
reconsideration, along with other wasteful, expensive programs that no longer make
sense. The promised benefits from the death penalty have not materialized. Deterrence
is not credible; vengeance in the name of a few victims in a handful of states is both
divisive and debilitating. If more states choose to end the death penalty, it will hardly
be missed, and the economic savings will be significant. The positive programs that can
be funded once this economic burden is lifted will be readily apparent. Such an
approach would be smart on crime.
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