OFFICE OF
R. Davip STENGEL
Commonweattn’s ATTORNEY (502) 595-2300
Harry J. ROTHGERBER 514 W. Ligenty Street (502) 595-2340
First AssisTaNT Louisvite, Kentucky 40202-2887 Fax (502) 595-4650
www.louisvilleprosecutor.com
April 14, 2009
Mr. Norman W. Lawson, Jr.
Committee Staff Administrator
Legislative Research Commission
State Capitol
700 State Capitol Avenue
Frankfort, KY 40601
Dear Mr. Lawson:
On behalf of Commonwealth’s Attorney Dave Stengel, I am replying to your letter dated
March 23, 2009 in which you requested information relating to the death penalty in Jefferson
County. It is my pleasure to answer your questions to the best of our statistical abilities.
For a variety of reasons, primarily due to a lack of funding and staffing, this office does not
maintain a database that would allow us to answer most of your questions. With that limitation in
mind, your questions followed by our answers are below.
1. How many cases have been eligible to have been prosecuted as death penalty cases?
Unable to ascertain from our limited database.
2. How many cases were prosecuted as death penalty cases?
Since 2006, this office has tracked the number of Capital Cases that
were closed each year. By “Capital Case,” I refer to indictments that
were handed down on Capital Offenses. In 2006, 26 Capital Cases
were closed; in 2007, 24 Capital Cases were closed; and, in 2008, 40
Capital Cases were closed. Currently, there are 71 Capital Cases
pending on our caseload.
Mr. Norman W. Lawson, Jr.
April 14, 2009
Page Two
3. How many cases had the death penalty returned by the jury or the Judge?
Since 1990, a total of five cases have been returned with the
imposition of the death penalty as the case disposition.
4. How many cases have had the sentence of death reversed by a Kentucky or Federal
Court?
Unknown due io our limited database, and we do not track this.
5. How much has it cost prosecutors and the Attorney General at the trial, appellate,
and post-conviction levels to prosecute death penalty cases?
This answer only applies to the Commonwealth’s Attorney’s Office,
not the Attorney General’s Office over which we have no control. In
terms or salary and staffing costs, death penalty cases result in no
more expenditure than in any other felony case. The prosecutors,
paralegals, victim advocates, secretaries, and detectives in this office
who work on a death penalty case are all on salary, so they are going
to receive the same pay no matter what kind of case it is. There is no
overtime or compensatory time with which to deal either. Again, I
can only speak for the Commonwealth’s Attorney’s Office at the trial
level for this question.
6. What other costs have there been?
The only other costs that may be incurred would be for expert
witnesses if any were retained for a specific case. This is not
something that we track or keep statistics on.
7. If there is any other information that would be helpful to understanding the costs,
I would appreciate your providing it to me.
I will restate the fact that whether a murder case is prosecuted as a
Capital or a Non-Capital matter, whether the death penalty is
involved or not, there is no increase in personnel costs because all of
the trial prosecutors in this office are on a salaried basis, and not
dependent on the complexity or seriousness of any one case.
Mr. Norman W. Lawson, Jr.
April 14, 2009
Page Three
Please let me know if I can assist you in any other way.
may Vi , ,; ; f
HARRY J. ROTHGERBER
First Assistant
Commonwealth’s Attorney
HJR/tms
ce: R. David Stengel
SENATE MEMBERS
David L. Williams
President, LRC Co-Chair
Katie Kratz Stine
President Pro Tem *
Robert Stivers
Majority Floor Leader
Ed Worley
Minority Floor Leader
Dan Seum
Majority Caucus Chair
Johnny Ray Turner
Minority Caucus Chair
Carroll Gibson
Majority Whip
Jerry P. Rhoads
Minority Whip
To:
From:
Subject:
Date:
LEGISLATIVE RESEARCH COMMISSION
State Capitol 700 Capitol Avenue ‘Frankfort KY 40601
502-564-8100
Capitol FAX 502-223-5094
Annex FAX 502-564-6543
Irc.ky.gov
Robert Sherman
Director
MEMORANDUM
Representative Jim Wayne
Carlos Lopes, Ph.D.
LRC Staff Economist
Death Penalty Costs vs Lifetime Incarceration Costs
January 3, 2011
HOUSE MEMBERS
Gregory D. Stumbo
Speaker, LRC Co-Chair
Larry Clark
Speaker Pro Tem
Rocky Adkins
Majority Floor Leader
Jeffrey Hoover
Minority Floor Leader
Robert R. Damron
Majority Caucus Chair
Bob DeWeese
Minority Caucus Chair
John Will Stacy
Majority Whip
David Floyd
Minority Whip
Per your request, this memo compares the cost of the death penalty to the costs of lifetime
incarceration for individuals convicted of capital crimes in Kentucky.
Supporters of capital punishment suggest that the death penalty is cost effective for two
reasons. First, the costs of incarceration may be lower, as those sentenced to death are
housed in institutions for shorter periods of time than those sentenced to life without parole.
Second, prosecutors may use the death penalty as a negotiating tactic. Individuals who
face death as a possible penalty may be more likely to enter a guilty plea in exchange for a
life sentence, and this may reduce legal costs for both the prosecution and the defense.
Supporters of capital punishment also claim that the death penalty may deter some crimes
and may further reduce costs incurred by the judicial system.
Opponents of capital punishment point out that legal costs may actually be higher in death
penalty cases. The costs involved with jury selection are higher in these cases because a
larger pool of jurors must be assembled and each juror must be willing to impose the death
penalty. In death penalty cases, jurors may be questioned individually, rather than in
groups, adding time to the selection process. Trial costs may also be higher, especially
since capital cases involve separate guilt and penalty phases and tend to last longer than
noncapital cases. Finally, the cost of appeals may be higher in capital cases because those
sentenced to death are granted automatic appeals.
Opponents also emphasize nonmonetary costs. For example, the death penalty is thought
by some to be unfair because it is more likely to be imposed on low-income individuals
who cannot afford private legal counsel, or it is more likely to be imposed depending on
1
demographic characteristics of the victim.’ In addition, there remains some risk of
executing innocent individuals. Liebman et al (2000) and Gelman et al (2003) find that
more than two out of three capital judgments received between 1973 and 1995 were
overturned on appeal. The researchers use this evidence to support the claim that these
defendants should not have been sentenced to death.” These nonmonetary costs are
difficult to quantify and are not easily comparable to monetary costs.
Previous Studies on the Benefits of Capital Punishment
Kuziemko (2006) studied the reinstatement of capital punishment in New York in 1995 and
finds evidence that prosecutors do successfully use the death penalty as a negotiating tactic.
She finds that where the death penalty is an option, defendants who plead guilty are more
likely to plead guilty to the charge for which they were originally arraigned. Where the
death penalty is not an option, defendants who plead guilty are found to be more likely to
plead to a lesser charge. However, because no evidence is found that the death penalty
increases the likelihood of a guilty plea, the net effect on costs is unclear. Legal costs will
not be affected in cases with no plea. Ifthe death penalty is used to induce defendants who
enter a guilty plea to accept longer prison sentences, then the costs of incarceration may
actually rise. On the other hand, longer prison sentences may cause crime to fall because
they keep criminals off the street for longer periods of time and also act as a deterrent to
crime.
The deterrence effect is also one of the arguments for the death penalty. Empirical
evidence for this is mixed. Dezhbakhsh, Rubin, and Shepherd (2003) compare crime rates
to executions in 3,054 U.S. counties from 1977 to 1996. They find a relatively large effect
and conclude that each execution results in approximately 18 fewer murders. Other
studies, such as Mocan and Gittings (2003), find smaller deterrent effects.
In sharp contrast, Donahue and Wolfers (2006) analyze the data and find little conclusive
evidence of an effect. They also find that crime rates in Canada closely match crime rates
in the U.S., though both countries have different policies on the death penalty. They
highlight technical errors in previous studies and conclude that any real effect, if it exists at
all, would be too small to find with the relatively low numbers of executions performed in
the U.S. today. Because of this, empirical evidence of a deterrence effect is questionable.
' Paternoster and Kazyaka (1988) find a “pattern of racial bias” in cases selected for the death penalty in
South Carolina between 1977 and 1981. Tabak and Lane (1989) find that capital punishment is racially
discriminatory and also more likely to be imposed on those with mental illnesses.
? According to the Kentucky Department of Public Advocacy, there have been at least 92 death sentences
handed down in Kentucky since 1976. Of these, 42 were overturned on appeal, and 5 were granted clemency
by the Governor <http://dpa.ky.gov/ci/dp.htm>. .
2
Previous Studies on the Monetary Costs of Capital Punishment
In an early study, Garey (1985) concludes that “A criminal justice system that includes the
death penalty costs more than a system that chooses life imprisonment as its ultimate
penalty.” This article does not focus strictly on monetary costs in making this conclusion;
however, it does provide an early estimate of the monetary costs. Cost estimates for
various portions of the trial are produced from interviews with attorneys who have tried
capital cases previously. She finds that the costs associated with jury selection were
$87,400 higher than a noncapital case and that the costs of court time were $65,580 higher
than noncapital cases.* This study does not compare the costs of incarceration in capital
cases to costs of incarceration in noncapital cases. Because courts do not report the amount
of time spent on these activities, the validity of these types of studies depend on the
accuracy of cost estimates provided in personal interviews or surveys. If those who
respond to the survey overreport or underreport costs, then estimates produced from these
survey responses could be biased.
Ina more recent study, Forsberg (2005) finds that death penalty cases in New Jersey are
more expensive than noncapital cases. She finds that the death penalty has cost New Jersey
more than $250 million since 1982. She finds that the majority of the costs are incurred by
the prosecution. While prosecutors are normally paid salaries and are not paid higher
amounts to prosecute capital cases, she reports that “a former county prosecutor
interviewed for this report offered the opinion that prosecutors routinely spend three times
as much on a capital case as the Public Defender’s Office.” She then triples estimates of
state appropriations to public defenders for death penalty trials to produce estimates of
costs spent by prosecutors on death penalty trials. She concludes that if the death penalty
was eliminated, but resources not reduced, “it is conceivable that other criminal cases could
be brought to trial more quickly, more criminals might be convicted and fewer crimes
would go unsolved.” The main conclusion of this study relies on the accuracy of a
statement from a single former prosecutor.
A study commissioned by the North Carolina Administrative Office of the Courts used data
on actual hours billed for appointed public defenders, judges, and staff involved in various
stages of the process. ** This study finds that the extra costs in North Carolina for a capital
case that ends in execution are approximately $163,000. The authors estimate that
$330,000 is incurred in legal costs; however, approximately $166,000 of these costs are
offset by the reduction in costs of incarceration. The majority of the additional legal costs
are incurred in the postconviction phase of the process. While the vast majority of capital
cases are more expensive than noncapital cases, the authors point out that there can be
significant variation between cases, and some capital cases are actually less expensive to
prosecute than some noncapital cases. In their sample, the least expensive two-phase
>These estimates represent costs in 1984 and assume that attorneys bill $40 per hour. Cost differences for
these two aspects of the trial would likely be higher today.
* Cook, Philip J., Donna B. Slawson and Lori A. Gries. “The Costs of Processing Murder Cases in North
Carolina.” Terry Sanford Institute of Public Policy, Duke University, May 1993.
5 In this study, some data (that is, hours spent by prosecutors and full-time public defenders) was still
generated from survey responses, though this was not the sole source of data.
3
capital trial cost the court, prosecutors, and defense attorneys $24,777.° The most
expensive noncapital murder trial in the sample cost $30,952. These differences in costs
result from differences in the complexity of cases, such as differences in the quality of
evidence against the defendant and the number of hours spent by those working on the
case. For example, the average time expended by defense attorneys in North Carolina on a
two-phase capital trial is 613 hours, compared to 150 in noncapital cases. However, in one
two-phase capital case, only 252 hours were expended, compared to one noncapital case
where 281 hours were expended. It is important to note that this study finds that the
defense spends more resources defending these cases than the prosecution spends
prosecuting these cases. This contradicts the results found in Forsberg (2005) above and
emphasizes that results of these studies are highly sensitive to the quality of survey
responses. ‘
In addition, the authors of the North Carolina study point out that there may be something
different about capital-cligible cases that were not prosecuted as death penalty cases and
cases that were tried as capital cases. For example, some capital-eligible cases may be tried
as noncapital cases because the defendants do not have prior felony convictions and would
be less likely to be sentenced to death in the penalty phase of the trial. In these cases,
prosecutors may be less likely to try the case as a death-penalty case. While this study does
control for the number of prior felony convictions, the authors point out that there may be
additional factors that explain why defendants tried in capital cases are fundamentally
different from capital-eligible defendants tried in noncapital cases. This would be true in
other studies as well.
A 2008 study published by the Urban Institute focused on the monetary costs in Maryland.
This study uses statistical techniques in an attempt to account for differences between
capital cases and capital-eligible cases that were not tried as death penalty cases. However,
this study also uses survey responses from a small sample of prosecutors and public
defenders to produce estimates of the amount of time spent by attomeys on three different
trial outcomes.’ These include capital-eligible cases that were not prosecuted as death
penalty cases, cases where the death penalty was unsuccessfully sought, and cases that
resulted in a sentence of death. These surveys report that cases where the death penalty
was unsuccessfully sought cost taxpayers approximately $700,000 more than cases where
the death penalty was not sought. Cases that resulted in a sentence of death cost
approximately $1.8 million more than cases where the death penalty was not sought. The
majority of the cost difference is due to higher costs in the guilt phase of death penalty
trials.* As with the studies outlined above, results are driven by small sample of survey
responses.
© Capital trials are frequently split into separate guilt and penalty phases. While the same jury is usually used
in both phases, this additional trial phase may add to the cost of capital trials.
7 A total of 52 surveys were sent out. The actual number of responses is low and not revealed in order to
promt the confidentiality of the respondents.
‘Additional appeals and separate penalty phases also add to the higher costs of death penalty cases; however,
the majority of costs are incurred in the guilt phase. This contradicts results found in the North Carolina
study that find the majority of legal costs are incurred in the postconviction phase.
4
There are a number of additional studies that compare the costs of capital-eligible trials
where the death penalty is not sought to capital trials. ° Many of these have similar
limitations. Some use data based on anecdotal information, and some do not consider
savings from relative incarceration costs which tend to offset capital trial costs. However,
they all conclude that the net effect of the death penalty is to increase monetary costs.
Estimates of these higher costs range from $163,000 to $1.8 million. These studies find
that these costs are distributed differently. Some studies find that the majority of the costs
are incurred by the prosecution in the guilt phase of the trial, while others find that the
majority of the costs are incurred by the defense in the postconviction phase of the trial.
These differences may be driven by the fact that (with the exception of Garey (1985)) each
of these studies is specific to one state and procedural differences across states may
contribute to these differences. It is also possible that weaknesses in these studies, such as
reliance on anecdotal information from small samples of surveys, contribute to these
differences.
Costs in Kentucky
Records provided by the Kentucky Administrative Office of the Courts show that there
have been 26 death sentences resulting from convictions since July 1, 1995. '° In
comparison, over the same time period there were 564 sentences of life without parole, and
120 sentences of life without parole for 25 years. In addition, there have only been three
executions in Kentucky since capital punishment was reinstated in the United States in
1976.
The Kentucky Department of Corrections reports that there are currently 34 inmates on
death row housed at the Kentucky State Penitentiary. According to the Bureau of Justice
Statistics, the average individual on death row in the U.S. has been there for 12.7 years.
The average individual currently on death row in Kentucky was sentenced at age 34 and
has been on death row for 16 years, which is 3.3 years longer than the U.S. average. One
individual has been on death row for 31 years. For the three individuals who have been
executed, the average stay on death row was 12.6 years. This figure is partially driven by a
relatively short stay by Marco Chapman, who waived his appeals and was considered to
“volunteer” to be executed.
According to the Commissioner of the Kentucky Department of Corrections, the average
daily cost to incarcerate an individual at the Kentucky State Penitentiary, where death row
is located, is $68.68. In comparison, the average daily cost to incarcerate an inmate in a
state correctional facility was $59.49 for fiscal year 2010. Depending on where an
individual is incarcerated, approximate annual costs will be between $22,000 and $25,000.
Given that the average individual on death row has been there for 16 years, Kentucky has
spent approximately $14.5 million in incarceration costs for these individuals. According
to the Department of Corrections, the total costs incurred for the execution of Marco
° Goodpaster (2002, 2008, 2010), South Dakota LRC (1999), Dieter (2009), Dellaplana (2009), Kansas
(2003)
'© The AOC data does not include Carlos Ordway, who was recently sentenced to death on October 29, 2010.
This brings the total to 27 sentences since 1995.
"! Harold McQueen (1997), Edward Lee Harper (1999), and Marco Chapman (2008).
5
Chapman on Nov 21, 2008, were $39,264.80. This included $17,926.44 for the execution
itself and $21,338.36 for security services from the National Guard and the Kentucky State
Police. Therefore, the execution of a prisoner costs slightly less than 2 years of
incarceration.
If the average prisoner who is sentenced to life without the possibility of parole is
incarcerated for at least 2 years more than the average prisoner sentenced to death, then it is
reasonable to conclude that the death penalty may actually reduce incarceration costs. Data
from the Bureau of Justice Statistics shows that there have been six individuals who died of
natural causes while on Kentucky’s death row since the death penalty was reinstated.'? For
these individuals, the costs of incarceration would likely have been similar had they been
sentenced to life without the possibility of parole.
This does not consider legal costs, which may represent the bulk of the costs associated
with the death penalty. According to the Commonwealth’s Attorneys for the 12", 31%, and
34% judicial circuits, costs (both monetary and time) associated with the recent prosecution
of capital cases have not been higher than those associated with the prosecution of other
cases.
However, defendants in capital-eligible cases are frequently indigent and must be
appointed an attorney who is paid by the state. According to the Department of Public
Advocacy, costs involved with defending a capital case are considerably higher than a
similar case that is not being prosecuted as a capital case. According to a recent Indiana
study cited by the Department of Public Adovcacy, legal costs are approximately 10 times
greater in capital cases. Specifically, the “costs of attorneys, expert witnesses, other costs
and appeals” associated with murder trials where the death penalty was sought and received
between 2000 and 2007 were, on average, $449, 887.'> For murder trials where life without
parole was sought and received, the costs were $42,658. This same analysis does find that
the costs associated with a capital-eligible trial where the defendant pleads guilty to avoid
the death penalty were lower on average than the costs in cases where there was no guilty
plea. However, these costs are still higher than in cases where the death penalty was not
sought and no plea was reached. In other words, this analysis suggests that the use of the
death penalty as a bargaining tool does not appear to reduce costs. As stated above, if the
use of the death penalty as a bargaining tool can induce defendants to accept longer prison
terms in exchange for their guilty pleas, then it is reasonable to conclude that incarceration
costs may actually rise.
In summary, most studies find that death penalty cases are more costly to prosecute, though
the costs of incarceration and execution for those actually sentenced to death may be lower,
especially when the length of stay for prisoners on death row is relatively short. In general,
studies that do find that the costs of incarceration for prisoners sentenced to death is lower
also find that the higher legal costs tend to offset these lower incarceration costs. These
studies generally do not consider any potential positive effects of the death penalty on
incarceration costs that may arise due to plea bargains. In addition, each of these studies is
limited by the methodology used to obtain these estimates.
” Capital Punishment, 2009 — Statistical Tables, December 2010, NCJ 231676, p. 21.
® Goodpaster, Mark. Fiscal Impact Statement LS 6130, Indiana Legislative Services Agency, Jan 6, 2010.
6
In Kentucky, the relatively long stay for prisoners on death row may suggest that the costs
of incarceration for individuals sentenced to death will be higher than the costs of
incarceration for condemned prisoners in other states. Because only three individuals have
actually been executed while six have died of natural causes on death row, it is not clear to
what extent the costs of incarceration in Kentucky for prisoners on death row will be lower
than a similar prisoner sentenced to life in prison.
While it appears that the monetary costs associated with death penalty cases may be higher
than the costs associated with capital-eligible cases where the death penalty is not sought, it
is important to note that some of the benefits of the death penalty, such as crime deterrence,
are difficult to quantify and are not included in the cited studies. While studies of the
deterrence effect may be inconclusive, if the threat of execution does reduce the number of
murders in Kentucky, then any higher costs associated with death-penalty trials could yield
other benefits. Because of these issues, it is difficult to objectively conclude that death
penalty cases are more “costly” than other cases.
Tf you have any questions, please contact me at ext. 402.
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