Testimony Submitted to the
Kentucky Senate
Standing Committee on Judiciary
Hearings on the Costs of the Death Penalty
March 1, 2012
Frankfort, Kentucky
by Richard C. Dieter
Executive Director
Death Penalty Information Center
Kentucky testimony, p.2
INTRODUCTON
Mr. Chairman, Members of the Committee: I want to thank Senator Jensen for
the opportunity and Senator Neal for inviting me to submit this testimony to you
regarding the costs of the death penalty in the United States.
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 U.S. I am also an attorney and an adjunct professor at the Catholic
University Law School in Washington.
The Center's role is not to advocate for particular legislation. We focus our
research on developments in the death penalty, identifying problems and pointing to
possible remedies. In my testimony, I hope to give you a national perspective on some
of the dramatic changes occurring in capital punishment around the country, and
explain why these changes affect the issue of costs. I would be happy to answer any
questions that members may have at any time, either by correspondence or in person.
MEASURING THE COSTS OF THE DEATH PENALTY
One of the most common misperceptions about the death penalty is the notion
that the death penalty saves money because executed defendants no longer have to be
cared for at the state's expense. If the costs of the death penalty were to be measured at
the time of an execution, that might indeed be true. But as every prosecutor, defense
attorney, and judge knows, the costs of a capital case begin long before the sentence is
carried out. Experienced prosecutors and defense attorneys must be assigned and
begin a long period of investigation and pre-trial hearings. Jury selection, the trial itself,
1 Death Penalty Information Center, 1015 18" St. NW, Suite 704, Washington, DC 20036; ph: 202-289-
2275; Web site: www.deathpenaltyinfo.org; email: dpic@deathpenaltyinfo.org.
Kentucky testimony, p.3
and initial appeals will consume years of time and enormous amounts of money before
an execution is on the horizon.
But even counting all of those steps would still miss the major contributor to the
high cost of capital punishment. The death penalty is an exceedingly expensive part of
the criminal justice system because it is necessarily very inefficient. I say "necessarily"
because, as the U.S. Supreme Court has repeatedly said, "death is different."? This
means that the ordinary system of due process is insufficient in capital cases. Virtually
every step in the criminal justice process will take longer in a death penalty case and be
more complicated. In terms of costs, it means that whatever expenses there are in an
ordinary criminal case, they will be much higher in a capital case. More experienced
lawyers will be needed, more experts will be employed, more questions will be asked of
potential jurors, more time will be taken for the trial and appeals. And the end result
will be that very few of the people selected for death penalty prosecution will ever be
executed. And yet, the costs of every one of those potential cases must be counted in
the costs of the death penalty.
The cost of our country's going to the moon cannot be restricted to the costs of a
single rocket and lander. We have to include all the experimental flights, all the
research, all the failures and partial successes that necessarily precede such a bold
venture. The same is true for the death penalty. A typical state has hundreds of cases
that are eligible for the death penalty. A formal capital prosecution will be undertaken
in less than half of these cases; much fewer will go to trial; only some will be sentenced
to death; and very, very few will survive appeals and result in an execution. Kentucky
is a good example. According to the recent American Bar Association’s Kentucky
? See, e.g., Kennedy v. Louisiana, No. 07-343 (U.S. 2008) (“When the law punishes by death, it risks its
own sudden descent into brutality, transgressing the constitutional commitment to decency and
restraint.”)
Kentucky testimony, p.4
Assessment Report, from 1976 to November 2011, there were 78 death sentences. Of
those cases, 52 sentences (67%) were reversed. Three inmates were executed, including
2 who waived their appeals.? The extra costs of the death penalty were present in all 78
of those death sentences, and even in cases in which the death penalty was sought but a
life sentence was given. Across the country, only about 15% of those who have been
sentenced to death have been executed.’
How much does the death penalty cost?
There is no national figure for the cost of the death penalty. Every state study is
dependent on that state's laws, pay scales, and the extent to which it uses the death
penalty. Studies have been conducted by research organizations, public defender
offices, legislative committees, and the media. Researchers have employed different
approaches, using different assumptions. However, all of the studies conclude that the
death penalty system is far more expensive than an alternative system in which the maximum
sentence is life in prison.
Some recent cost studies provide an example of how much the death penalty can
cost over the years that the policy is in existence:
> In Maryland, a comprehensive cost study by the Urban Institute in 2008
estimated the extra costs to taxpayers for death penalty cases prosecuted
between 1978 and 1999 to be $186 million.> Based on the 5 executions carried out
in the state, this translates to a cost of $37 million per execution.
> In 2008, the California Commission on the Fair Administration of Justice released
an exhaustive report on the state’s capital punishment system, concluding that it
° “Evaluating Fairness and Accuracy in State Death Penalty Systems: The Kentucky Death Penalty
Assessment Report: An Analysis of Kentucky’s Death Penalty Laws, Procedures, and Practices,”
American Bar Association (December 2011), at page xii.
+ See, e.g., Bureau of Justice Statistics Annual Report on Capital Punishment, at
http:/ /bjs.ojp.usdoj.gov /index.cfm?ty=pbdetail &iid=2236 (including data on 2010 and preliminary data
on 2011).
5 See J. McMenamin, “Death penalty costs Md. more than life term,” Baltimore Sun, March 6, 2008. The
study included projected future costs since many of the cases prosecuted during that time are still not
complete and are incurring additional expenditures.
Kentucky testimony, p.5
was “dysfunctional” and “broken.” The report found that the state was
spending $137 million per year on the death penalty. The Commission estimated
a comparable system that sentenced the same inmates to a maximum
punishment of life without parole would cost only $11.5 million per year.° Since
the number of executions in California has averaged less than one every two
years since the death penalty was reinstated in 1977, the cost for each execution is
over $250 million. The state has also indicated it needs another $400 million to
construct a new death row.
> In New York and New Jersey, the high costs of capital punishment were one
factor in those states’ decisions to abandon the death penalty. New York spent
about $170 million over 9 years and had no executions.’ New Jersey spent $253
million over a 25-year period and also had no executions.* In such states the cost
per execution obviously cannot be calculated, but even assuming they eventually
reached one execution every other year, and continued the annual expenditures
indicated in their studies, the cost per execution would be in the $20-to-$40
million range.
It is important to emphasize the high costs per execution do not mean that
executions themselves are expensive, or that pursuing one execution will cost tens of
millions of dollars. Rather, these costs reflect the reality that most capital prosecutions
never result in a death sentence, and most death sentences do not result in an execution.
Death Penalty Costs Are Increasing
The costs of the death penalty when measured per execution are rising. In 1988,
the Miami Herald estimated that the costs of the death penalty in Florida were $3.2
million per execution, based on the costs and rate of executions at that time.’ But today
® . See California Commission on the Fair Administration of Justice, http: / / www.ccfaj.org /rr-dp-
official.html, June 30, 2008 [hereinafter California Commission]. See also Judge Arthur L. Alarcon & Paula
M. Mitchell, “Executing the Will of the Voters?: A roadmap to mend or end the California legislature's
multi-billion dollar death penalty debacle,” 44 Loyola of Los Angeles Law Review S41, Special Issue
(2011).
7 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).
8 See Newsday, Nov. 21, 2005.
°.D. Von Drehie, "Bottom Line: Life in Prison One-sixth as Expensive," Miami Herald, July 10, 1988, at
12A.
Kentucky testimony, p.6
there are more people on death row, fewer executions per year, and higher overall
costs, all contributing to a significantly higher cost per execution. A recent estimate by the
Palm Beach Post found a much higher cost per execution: Florida now spends $51 million
a year over what it would spend to punish all first-degree murderers with life in prison
without parole. Based on the 44 executions Florida carried out from 1976 to 2000, that
amounts to a cost of $24 million for each execution, a significant rise from earlier
projections.”
A similar increase appears in California. In 1988, the Sacramento Bee found that
the death penalty cost California $90 million annually beyond the ordinary expenses of
the justice system, of which $78 million was incurred at the trial level.'’ But the costs
have increased sharply since then. As noted above, the costs now are estimated at $137
million per year.”
It is also revealing to examine the costs of specific features of the death penalty
system, as revealed through state and federal studies:
> In Maryland, the 106 cases in which a death sentence was sought but not imposed
will cost the state $71 million. This extra cost is solely due to the fact that the
death penalty was pursued, even though the ultimate outcome was a life or long-
term prison sentence.”
> The average cost for just the defense at trial in a federal death case is $620,932,
about 8 times that of a non-capital federal murder case.'*
> In Kansas, the trial costs for death cases were about 16 times greater than for non-
death cases ($508,000 for death case; $32,000 for non-death case). The appeal
costs for death cases were 21 times greater."°
1°. V. Date, "The High Price of Killing Killers," Palm Beach Post, Jan. 4, 2000, at 1A.
HES: Maganini, "Closing Death Row Would Save State $90 Million a Year," Sacramento Bee, March 28,
1988, at 1.
2 See note 6, above; see also Los Angeles Times, March 6, 2005 (California has now had 13 executions).
13 J. McMenamin, see note 5 above.
4 Office of Defender Services of the Administrative Office of the U.S. Courts, "Update on Cost, Quality,
and Availability of Defense Representation in Federal Death Penalty Cases," June 2008; prepared by Jon
Gould and Lisa Greenman.
1 Performance Audit Report: Costs Incurred for Death Penalty Cases: A K-GOAL Audit of the
Department of Corrections, Kansas (2003).
Kentucky testimony, p.7
> In California, the cost of confining one inmate to death row is $90,000 per year more
than the costs of incarcerating the same inmate in a maximum-security prison.
Death row inmates require higher security, often in single cells, where meals and
other essentials are brought to them daily. This is a very inefficient means of
confinement. With California’s current death row population of over 700, that
amounts to at least $63 million annually."°
Opportunity Costs
Generally, offices involved in the prosecution or defense of criminal cases
expand or contract according to the work that must be done. The extra time required
by death penalty cases typically has caused the size and budgets of such offices to
increase, but 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, have been reluctant to
divulge the time and related expenses reflecting their part in capital 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 a study would be
incomplete if it did not 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,
perhaps to pursue cold cases, or choose to keep fewer employees. There is a financial
1 California Commission, see note 6 above, at 70.
Kentucky testimony, p.8
dimension to all aspects of death penalty cases, and proper cost studies take these
“opportunity costs" into account.”
The Effect of Plea Bargaining
One asserted refutation that has been offered 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 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
7 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
penalty 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.").
19 See P. Cook, note 17 above.
20 Indiana Criminal Law Study Commission, January 10, 2002.
21 See note 15 above.
® See California Commission, note 6 above.
Kentucky testimony, p.9
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
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.”°
3 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.
2B R. Lardini, “A year later, state assesses justice without death penalty,” New Jersey Star Ledger,
December 15, 2008.
25 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
Kentucky testimony, p.10
THE DECLINING USE OF THE DEATH PENALTY
If anything, the death penalty is becoming a less efficient system as concerns
about mistakes have increased. Twenty years ago, the use of the death penalty was
expanding. Executions, the size of death row and public support for the death penalty
were all on the rise in the early 1990s. New states were adopting the death penalty and
the federal death penalty was greatly expanded. By the end of the 1990s, executions in
the U.S. had climbed to almost 100 per year. The number of death sentences was near
300 per year, and many states were seeking ways to speed up the death penalty.
But beginning around the year 2000, there has been a clear and steady national
trend away from the use of the death penalty. Death sentences have dropped by 75%
since the mid-1990s, executions have declined 56%, and death row has decreased in
size.” Public support has dropped from a high of 80% support in 1994 to 61% in the
most recent Gallup Poll. * Moreover, when the public is given a choice between a
sentence of life-without-parole for murder and the death penalty, the country is about
evenly split. The sentence of life without parole is now available in virtually every state
in the country.”
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.
7 See, e.g., Bureau of Justice Statistics Annual Report on Capital Punishment, at
http:/ /bjs.ojp-usdoj.gov / index.cfm?ty=pbdetail &iid=2236 (including data on 2010 and preliminary data
on 2011).
8 See Gallup Poll, http: / /www.gallup.com/poll/1606/Death-Penalty.aspx (October 2011). See also,
Lake Research Partners Poll released by DPIC, Nov. 16, 2010, showing majority support for alternatives to
the death penalty. http: / / www.deathpenaltyinfo.org /pollresults.
» Only Alaska does not use a sentence of life without parole.
Kentucky testimony, p.11
Every region of the country has seen a decline in the annual number of death
sentences between the 1990s and the current decade.” Almost all of the states with the
death penalty have averaged less than one execution per year over the past 30 years.
The executions that have been carried out have predominantly been restricted to
just one area of the country-the south. In 2011, there were 43 executions—74% were in
the south, and over half of those were in just two states—Texas and Alabama. Most
states with the death penalty had no executions in 2011 and no executions in 2010.
Courts, too, have applied far greater scrutiny to capital punishment than in the
past. The U.S. Supreme Court has restricted the use of the death penalty and placed
more demands on states to oversee this process carefully through a series of decisions.
It barred the use of the death penalty for defendants with mental retardation, for those
who committed their crime before the age of 18, and for all crimes against an individual
except murder. Moreover, a series of decisions has required better representation by
defense attorneys in capital cases."
Recently, four states have taken conclusive action in response to the evidence
that the death penalty system is broken. New York, New Jersey, New Mexico, and most
recently Illinois have abolished the death penalty completely. (New York and New
Jersey took action in 2007. New Mexico abolished the death penalty in 2009 and Illinois
in 2011.) Other states have come very close to the same action: the Connecticut
legislature voted to abolish the death penalty, though the measure was vetoed by the
governor. In Colorado and Montana, one of the two houses voted to abolish the death
penalty. In Maryland, legislation to abolish the death penalty has come very close to
%° See Death Penalty Information Center, "Sentencing," at http:/ / www.deathpenaltyinfo.org / death-
penalty-sentences-have-dropped-considerably-current-decade.
5ST See, e.g., Atkins v. Virginia (2002) (excluding the mentally retarded), Roper v. Simmons (2005) (excluding
juvenile offenders), Kennedy v. Louisiana (2008) (excluding crimes against a person where no death
resulted), and Wiggins v. Smith (2003) (requiring more thorough mitigation investigations).
Kentucky testimony, p.12
passage and the people re-elected their governor who has made this legislation a
priority of his administration. Other states such as California, New Hampshire, North
Carolina, Maryland and Tennessee instituted studies of their death penalty process.
A number of reasons have been put forward for the decline in the use of the
death penalty. Probably the most compelling reason for this turnaround has been the
emergence of the innocence issue, strengthened by the advent of DNA testing.” The
images of death row inmates walking out of prison greeted by their attorneys and the
journalism students who helped free them have had a profound impact on the use of
the death penalty. Other factors have also contributed, including the availability of life-
without-parole sentences, and a sense that the death penalty is being applied in an
arbitrary and unfair manner.
THE INNOCENCE ISSUE
The decline in the use of the death penalty has correlated directly with the rise in
importance of the innocence issue. The American people now know that the problem of
innocence is a lot more serious than was previously thought. Since 1973, 140 people
who were sentenced to death in 26 states have been freed after their convictions were
reversed. On average, it took about 9.5 years between the defendant's sentencing and
his or her exoneration.
In the vast majority of these cases, the defendants were acquitted of all charges at
a retrial or the prosecution decided to drop all charges.* In the few remaining cases, a
governor granted a complete pardon based on innocence. For every 9 people who have
* See Frank Baumgartner et al., The Decline of the Death Penalty and the Discovery of Innocence (2008)
(Cambridge Press).
* See R. Dieter, Innocence and the Crisis in the American Death Penalty, Death Penalty Information Center
(2004), listing the first 116 cases and discussing the problem generally. See also DPIC'’s Web site
http: / /www.deathpenaltyinfo.org under "Innocence" for a complete list of all cases and the criteria for
inclusion on the list.
Kentucky testimony, p.13
been executed since 1973, there has been one person slated for execution who was
innocent and fortunately freed from death row. That represents a substantial risk when
human lives are at stake.
This problem of innocence has not been restricted to the earlier years of the death
penalty. Most of the 140 people who have been freed were exonerated since 1995. Four
people were exonerated in 2008 and nine in 2009.
The reversals in these 140 cases do not prove that the system works. Many of the
cases indicate just the opposite. The 17 cases where people were freed as the result of
post-conviction DNA testing are a stark reminder of the fallibility of our justice system.
DNA testing evolved as a tool of science. If this technology had emerged ten years
later, many of those 17 people may have been executed. It is important to note that the
typical DNA case resulted not only from a unanimous jury conviction and a unanimous
vote for a death sentence, but was also affirmed at numerous levels of appeal.
Many of the other exonerations occurred because of fortuitous circumstances
outside of the normal justice system. In some instances, journalism students were able
to uncover glaring flaws in the original evidence, and were even able to locate the actual
murderer. The media played an important role in many of the cases, and in others,
volunteer lawyers from major law firms revisited the evidence and trial records. They
donated thousands of free hours resulting in the freeing of death row inmates. But that
kind of attention, and the millions of dollars for appeals that accompany it, is only
applied to a few cases. Many people have been executed where there was considerable
Kentucky testimony, p.14
evidence that they may have been innocent, but there was neither the time nor the
resources to thoroughly examine their cases.™
CAPITAL CASES ARE TIME CONSUMING
In addition to contributing to the declining use of the death penalty, the
innocence issue has also affected the pace of capital cases and increased their costs.
Much of the delay in carrying out the death penalty is a healthy caution resulting from
the near executions of innocent people. It is also the result of years of a very broad use
of capital punishment, which created large death rows and a backlog of cases in the
appellate courts.
For executions carried out in 2010, the average time between sentencing and
execution was 15 years, the longest time for any year since the death penalty was
reinstated in 1976.* Even in Texas, the time between sentencing and execution is ten
years. In some states, inmates are on death row for 20 or even 30 years awaiting
execution. About 275 inmates have been on death row for 24 years or more.”
This extensive delay results in the imposition of two sentences on the defendant:
a life sentence in highly restricted confinement, and a death sentence. Of the capital
cases that have been concluded, only about one-quarter of those sentenced to death
were executed.” Three-quarters of the defendants were permanently removed from
death row for other reasons.
Such a system is enormously expensive for the state and a source of frustration
for many. Death penalty cases are very costly to prosecute and defend compared to
+ See, e.g., T. Ganey, “Was the Wrong Man Executed, “St. Louis Post-Dispatch, July 11, 2005, regarding
the case of Larry Griffin who was executed in 1995 in Missouri. For a list of other such cases, see DPIC
http: / / www.deathpenaltyinfo.org / article.php?&did=2238.
3% See Bureau of Justice Statistics, note 27 above.
3° See Bureau of Justice Stati: , Capital Punishment, 2005 (2006), appendix Table 3.
3” See Bureau of Justice Statistics, note 27 above.
Kentucky testimony, p.15
similar cases without the death penalty. When a death sentence is handed down, there
will be years of expensive appeals and a form of incarceration that is much more
expensive than the costs in general population. And at the end of the process, most
defendants will end up with a life sentence anyhow—though one achieved through the
most expensive process in the criminal justice system—the death penalty.* Those left
with a death sentence will probably not be the worst offenders, but rather an
unfortunate few determined by arbitrary factors. Even for many supporters of capital
punishment, this system makes little sense.
It has also created skepticism among the public regarding the value of such a
nebulous form of justice. Indeed, some family members have remarked that, given the
extensive time, the unpredictability of the outcome, and the painful re-living of the
tragedy that inevitably accompanies this process, it would have been better if a life
sentence had been imposed in the first place.”
RELATIONSHIP BETWEEN COSTS AND INNOCENCE
The death penalty on the cheap is really no bargain. There is no abstract dollar
figure for the cost of the death penalty--it ultimately depends on the quality of the
system a state demands. In Illinois, a blue-ribbon commission recommended 85
changes to make the death penalty more reliable; those changes were essential to a fair
*8 | A study at Columbia University Law School demonstrated how few capital cases actually result in an
execution: the study found that 68% of death penalty sentences or convictions are overturned on appeal.
The serious errors that were discovered required at least the sentencing phase to be done over. When
these death penalty cases were re-tried, approximately 82% resulted in a life sentence. Thus, the typical
death penalty case has all the expenses of its early stages and appeal; it is then overturned, and a life
sentence is imposed, resulting in all the costs of a lifetime of incarceration. James S. Liebman, "A Broken
System: Error Rates in Capital Cases," (Columbia Univ. June, 2000) (executive summary).
*% James O'Brien's daughter Deidre was murdered in 1982, and the capital trials and appeals for the man
convicted of the crime lasted many years. O’Brien stated, “I've lived through the state's process of trying
to kill [a murderer], and I can say without hesitation that it is not worth the anguish that it puts survivors
through...” Because of the “horrendous toll” the process took on his family and the little closure it gave
them, O’Brien, a resident of St. Michael’s, Maryland, called for abolition of the death penalty. Regarding
closure for the family, he said, “the death penalty forces that closure further away than any other
punishment on the books.” J. O’Brien, “Death Penalty Punishes Victims’ Families, Too," The Daily
Record, Nov. 25, 2007.
Kentucky testimony, p.16
and reliable system, but many would also be expensive.” Ultimately, the state elected
to abolish the death penalty completely.
There is little dispute that the death penalty is expensive. Sentencing someone to
life in prison is also very expensive. But death penalty costs are accrued up-front,
especially at trial and for the early appeals, while life-in-prison costs are spread out over
many decades. A million dollars spent today is a lot more costly to the state than a
million dollars that can be paid gradually over 40 years.
Theoretically, Kentucky might fashion a more efficient death penalty system.
Texas, for example, has executed about 45% of the people it has sentenced to death.
Even at that rate, it has been estimated that the extra costs of the death penalty in Texas
are about $2.3 million per case." And Texas's "efficient" death penalty system has also
been accompanied by a record of sleeping lawyers, prosecutorial misconduct, and sharp
reprimands from the U. S. Supreme Court.”
The increasing costs of the death penalty can have a direct and negative impact
on the administration of justice:
> In New Mexico, the state Supreme Court held that more resources had to be
made available for indigent defendants facing capital punishment. The
legislature declined and adjourned for the year. A trial judge then ruled that the
state could not pursue the death penalty in a prosecution and the attorney
general's office concurred, thus halting the capital prosecution.” The death
penalty was then abolished in 2009.
Vv
In Georgia, the death penalty prosecution in one death penalty case (Brian
Nichols) cost the state over $2 million and resulted in a jury verdict for life.
There was no question of Nichols' guilt, but seeking the death penalty has
proven enormously expensive. The case has resulted in a crisis in indigent
funding across the state. The head of the death penalty unit of the public
401. Report of the Governor's Commission on Capital Punishment (Illinois, released April 15, 2002).
. C. Hoppe, "Executions Cost Texas Millions,” Dallas Morning News, March 8, 1992, at 1A.
*® See, e.g., Miller-El v. Dretke, 125 S. Ct. 2317 (2005) (race bias in jury selection).
8 Scott Sandlin, “Death Penalty Out in Guard Killing,” Albuquerque Journal, April 4, 2008.
Kentucky testimony, p.17
defender's office resigned because he said his office could no longer fairly
represent its clients and many cases have ground to a halt.“*
> In New Jersey, police chief James Abbott served on the commission that
reviewed that state's death penalty law. He concluded that the money spent on
the death penalty was wasteful and that there were better ways to reduce crime.
He wrote: “I no longer believe that you can fix the death penalty. Six months of
study opened my eyes to its shocking reality. I learned that the death penalty
throws millions of dollars down the drain -- money that I could be putting
directly to work fighting crime every day -- while dragging victims' families
through a long and torturous process that only exacerbates their pain... Asa
police chief, I find this use of state resources offensive. ... Give a law
enforcement professional like me that $250 million, and I'll show you how to
reduce crime. The death penalty isn't anywhere on my list.””
Vv
In Florida, a budget crisis has led to a cut in funds for state prosecutors’ offices.
As a result, some prosecutors will be cutting back on use of the death penalty
because it is so costly. Florida State Attorney Harry Shorstein recently said that
cuts to his budget might mean abandoning expensive death penalty cases. "There
will be cases that can’t be tried. Will it mean we can’t get to the trials? Will it take
longer? Will it, will it clog the criminal justice system? Yes. ... We are strained to
the breaking point. . . . Instead of seeking the death penalty, maybe we'll seek
something else," he said."
Economic downturns in the past have meant that states have had to make drastic
cuts in law enforcement and other services such as reducing the number of police
officers, closing libraries, laying off prison guards and nurses, and neglecting to repair
essential vehicles.” The death penalty is not responsible for these budget crises, but it
does force legislators to choose among programs that can make a difference in people's
lives.
An article in the Wall Street Journal noted that in states where counties are chiefly
responsible for prosecuting capital cases, the expenses can put an extraordinary burden
“Shannon McCaffrey, “Georgia Senate slashes money for public defenders,” Macon Telegraph,
February 20, 2008; see also New York Times, September 7, 2007.
4 James Abbott, “Less money, more pain and injustice,” Fort Worth Star-Telegram, January 20, 2008.
*© Jacksonville Daily Record, September 13, 2007.
*” See, e.g., New York Times, June 7, 2003 (cuts in prison guards and police forces; Lakeland (Florida)
Ledger, December 14, 2003 (cuts in libraries); Associated Press, April 2, 1999 (not replacing nurses or
fixing vehicles).
Kentucky testimony, p.18
on local budgets comparable to that caused by a natural disaster.’ Katherine Baicker of
Dartmouth concluded that capital cases have a "large negative shock" on county
budgets, often requiring an increase in taxes. She estimated the extra expenses on
counties to be $1.6 billion over a 15-year period.”
The net effect of this burden on counties is a widely disparate and arbitrary use
of the death penalty. "Rich" counties that can afford the high costs of the death penalty
may seek this punishment often, while poorer counties may never seek it, settling for
life sentences instead. In some areas, this geographical disparity can have racial effects,
as well, depending on the geographical location of racial minorities within the state.
Some counties have approached the brink of bankruptcy because of one death penalty
case that has to be done over a second or third time.”
CONCLUSION
The death penalty in the United States has become unwieldy. In most states,
executions are rare, the delay between sentencing and executions has lengthened, and
the costs of the death penalty system have grown considerably. Yet for all this
additional effort, death penalty cases are still prone to error and the risk of executing an
innocent person remains. The public and the families of victims have a right to be
frustrated with this system. But there is no simple way to reduce delays and costs while
ensuring that innocent lives are protected and that the system works fairly. This
“R. Gold, "Counties Struggle with High Cost of Prosecuting Death-Penalty Cases,” Wall St. Journal, Jan.
9, 2002.
*_K. Baicker, "The Budgetary Repercussions of Capital Convictions," National Bureau of Economic
Research, Working Paper 8382, July 2001.
5° See generally, R. Dieter, "Millions Misspent: What Politicians Don't Say About the High Costs of the
Death Penalty," (revised edit., 1994) and “Smart on Crime: Reconsidering the Death Penalty in a Time of
Economic Crisis” (2009) (available from the Death Penalty Information Center).
Kentucky testimony, p.19
dilemma is one of the principal reasons that the use of the death penalty has declined so
dramatically in recent years.
I would be happy to provide this body with more extensive information on the
points I have raised.
