Costs News and Developments: 2004

Kansas Death Penalty Advisory Committee Releases Report

A recent report issued by the Kansas Judicial Council Death Penalty Advisory Committee examines the state's application of capital punishment and the hefty price tag of seeking the death penalty. The Committee found that since Kansas reinstated the death penalty in 1994 there were 44 potential capital cases involving minority victims. However, none of these cases resulted in a death sentence. Of the eight defendants in Kansas who did receive death sentences, all of their victims were white. Of those eight cases, six originated in Sedgwick County and only two cases were from the entire rest of the state.

This disparity may be partially due to the high costs associated with capital punishment. The report noted that the cost of prosecuting a death penalty case is generally quite high because each side is more likely to employ costly expert witnesses and subsequent appeals are financially draining. The Committee concluded that larger and more populous counties in Kansas - such as Sedgwick County - can more readily absorb the cost of death penalty litigation because of a larger tax base.

In addition to the issues of race, costs, and geographic disparity, the panel also examined issues such as innocence, deterrence, and the state's ability to meet the needs of all murder victims' family members. (Report of the Kansas Judicial Council Death Penalty Advisory Committee on Certain Issues Related to the Death Penalty, November 2004) Read the Report. See also, Race and Costs.

$ Palm Beach Post Editorial: Plea Bargain Underscores the Arbitrariness of the Death Penalty
While applauding a life-sentence plea bargain arranged by Palm Beach County's State Attorney in an especially heinous murder, the Palm Beach Post said the state had "forfeit[ed] the moral standing to execute anyone else."
The State Attorney said that he agreed to let the defendant plead guilty to killing 5 people because the life-without-parole sentnece will bring finality. The Post noted: "The state saves not only the cost of a trial; the victims' relatives - who supported the deal - do not have to relive the horror. The state will save more by avoiding years of appeals; all credible research shows that incarceration is far cheaper than litigation. Most important, [the defendant] never again will threaten the public."
. . .
"But," the paper further stated, "[i]t is impossible to craft a law that reserves capital punishment for only a certain class of criminal. Because Florida and the 37 other states where the death penalty is legal won't accept that fact, governments waste untold millions each year on post-conviction appeals over whether the facts of the case support the ultimate punishment."
(Palm Beach Post Editorial, December 16, 2004). See Editorials and New Voices. See also Victims.


$ California Plans $220 Million Death Row While Inmates Wait 4 Years to Start Appeal
California already has the largest death row in the country and is now planning to build a new $220 million facility designed to house more than 1,400 death row inmates. State Supreme Court Chief Justice Ronald M. George said that the large death row reflects the consequences of a careful appeals process that is designed to ensure due process for those facing execution. "The virtues of the system also represent its vices because it does end up causing a lot of delay," stated the Chief Justice, a former prosecutor who notes that the leading cause of death on California's death row is old age. Currently, there is a four-year wait for inmates to be assigned a lawyer to begin their first appeal and 118 people on death row have not yet been assigned a lawyer. "We take great care to try and appoint competent counsel....I could take care of that backlog in two days if I were not following the very rigorous standards that California has established."
Since the state reinstated capital punishment in 1977, it has carried out 10 executions. There are 641 people currently on the state's death row. (New York Times, December 18, 2004). See Representation.

$ New Jersey Governor Calls for Death Penalty Moratorium
New Jersey Governor Richard Codey (pictured) proposed a moratorium on executions until a study commission could determine whether the state's death penalty system is fair and cost effective. The governor announced his moratorium proposal as the legislature began considering a bill to initiate the study. "The governor does not think it makes sense to do a study without a moratorium. So he does support a moratorium right now, and he supports it for 18 months to two years," Codey's spokeswoman, Kelley Heck, stated. Codey, who is also President of the New Jersey Senate, called for the halt to executions as he stalled a Senate vote on legislation that would have created a 13-member death penalty study commission. The bill would create a panel to determine whether the death penalty is consistent with "evolving standards of decency," whether it is discriminatory, and whether it is worth its cost - both in money for lawyers and the risk of executing an innocent defendant. Senator Shirley Turner, sponsor of the study commission legislation, echoed Codey's call for a moratorium and added, "If we're going to study the death penalty, I think we should not allow anyone to be executed until the report is in." New Jersey has not executed anyone in 41 years, and executions in the state are currently on hold as the Department of Corrections devises new lethal injection rules. The current execution procedures were struck down in February because they shrouded executions in secrecy and made no provisions for halting one once it was started, even in the event of a last-minute reprieve. (Star-Ledger, December 7, 2004).


$ Indiana Spends Millions on Death Penalty But Prosecutors Unsure of its Future
According to a recent news report, Indiana taxpayers spend millions of dollars to send dozens of people to death row, but more than half of those sentenced have had their convictions overturned or their sentences vacated. In addition, the rising costs of the death penalty have resulted in a more arbitrary application of capital punishment due to funding constraints in certain rural counties, a fact that has many state residents questioning the punishment's true value. Defense expenses in capital trials can cost the state more than $500,000 per case, and that figure does not reflect the millions of additional dollars spent to pay for prosecutorial expenses, appeals, and incarceration costs. In small Indiana jurisdictions such as Pike County and Posey County, those financial figures and staffing shortages contributed to prosecutors' decisions not to seek the death penalty. Posey County prosecutor Jodi Ubelhack, who recently faced three death-eligible cases, noted, "We only have two prosecutors that handle criminal matters. If you have 3 death penalty cases, then nothing else gets handled." Clark County prosecutor Steven Stewart said that high costs could eventually lead to eliminating capital punishment. "Once the judges accept that and start spending that kind of money on every death penalty case, it's only a matter of time before the public at large says it's not worth it," Stewart said. (WFIE News, November 20, 2004)


$ Editorials Note Growing Unease With Death Penalty
Editorials in papers around the country have noted that many Americans are rethinking the death penalty because it is deeply flawed. Among the recent editorial observations were the following:

New Jersey's Star-Ledger

Fewer people are being given the death penalty in the United States, according to the Justice Department, which says such sentences are at a 30-year low. Last year, the number of people who were sentenced to die totaled 144.

While these numbers are heartening in that they reflect a decrease in executions, they ought to cause states to rethink the wisdom and fairness of the death penalty altogether.
. . .
Getting sentenced to death has become just what the U.S. Supreme Court, in its landmark 1972 Furman vs. Georgia ruling, said it should not be -- a punishment so "wantonly and so freakishly imposed" that it is like getting struck by lightening.
. . .
Whatever one's moral views on the death penalty, there are compelling reasons to consider getting rid of it.

Cost is one. It takes from $2.3 million to $3.2 million to bring a death prosecution in New Jersey.

Human error is another reason. In recent years, more than 100 death-row inmates nationwide have been exonerated, mostly using DNA evidence.

The question is whether anybody is willing to kill this badly broken system. (Star Ledger Editorial, November 20, 2004).

Florida's Daytona Beach News-Journal

Over the past 10 years, Americans have been forced to face reality: Death penalty laws are deeply flawed.

More than 100 death row inhabitants have been freed after their convictions were overturned, many of them exonerated by DNA evidence that conclusively proves their innocence. Years, sometimes decades, pass between conviction and execution. And executions gruesomely botched have many recoiling in horror.
. . .
Why are Americans turning away from this vestige of frontier justice? One possible explanation is the growing international pressure on the United States as the last industrialized nation to so enthusiastically apply the death penalty. But a more likely theory hits closer to home. The continuing spate of stories about inequities in the way the death penalty in administered has forced many to consider whether the notion of retributive justice is itself fundamentally flawed.

The myth that capital punishment is a deterrent has been exploded. Death penalty proponents argue that over the past 10 years, the number of executions increased while murder rates have decreased. But that's true in states that don't have the death penalty -- and on average, their murder rates are dropping faster than they are in the states that still execute, the Death Penalty Information Center reports.

The other likely contributer is the number of death sentences overturned, a statistic that throws the permanent, irrevocable nature of the death penalty into sharp focus. As DNA evidence has freed increasing numbers of inmates, the number of Americans who say they favor the death penalty has remained fairly stable -- but the number of Americans who say they oppose the death penalty has steadily increased. While 60 to 70% of Americans say they approve of the death penalty, the number drops to about half when they are asked to choose between death and life in prison without parole.

This growing uneasiness about the death penalty is already bearing fruit. Last month, President Bush signed the Justice For All Act, which (among other things) provides more hope to inmates awaiting DNA tests that could prove their innocence. The act does not go far enough -- it limits access to other scientific tests, for example -- but it will provide $25 million to states over the next five years to conduct post-conviction DNA tests.

Yet too many death penalty inmates are still tried, convicted and sentenced in states that deny them adequate legal representation. Without a competent lawyer at trial, the accused lose much of their ability to appeal wrongful convictions.
. . .
A better solution -- the right solution -- is to recognize the death penalty for what it is -- inefficient, ineffective, expensive, slow, unjust and morally reprehensible -- and abolish it now, rather than wait for it to wither away. (Daytona Beach News-Journal Editorial, November 17, 2004).

Colorado's Denver Post

It's probably too early to call it a radical change, but there's a flicker of hope that American society is coming to think of capital punishment as a cruel anachronism. . . .[A] new report has found that the number of death verdicts hit a 27-year low last year. Possible factors include the exoneration of about 100 death-row inmates and the fact that jurors now have the option of imposing life without parole in 47 states.
. . .
Despite support in public-opinion surveys, jurors seem less enthusiastic about capital punishment. "I'm not surprised at the reluctance on the part of American juries to impose the death penalty," said U.S. District Judge John Kane, who speculated that some death-penalty jurors may hesitate because of news reports and television shows about errors in death-penalty cases.
. . .
Over time, the Supreme Court has narrowed application of the death penalty, banning execution of the mentally retarded, for example. Early this year, the court agreed to re-examine execution of defendants who were juveniles when their crimes were committed.

The Post has opposed capital punishment since 1965. Perhaps growing antipathy for actually imposing the death penalty will someday lead the court to conclude that it has truly become a "cruel and unusual punishment" and ban it altogether. (Denver Post Editorial, November 21, 2004).

See Editorials. See also Innocence, Deterrence, and Representation.



$ California Bar Association Urges Death Penalty Moratorium
A group of 450 attorneys participating in the Conference of Delegates of the California Bar Association has urged a moratorium on the death penalty in California until the state reviews whether capital punishment laws are enforced fairly and uniformly. "If you make a mistake, it's not like you can go back and correct a mistake because the person is dead," said Los Angeles County Deputy District Attorney Danette Meyers, supporter of the measure and a member of the Bar Association that represents prosecutors, criminal defenders and civil attorneys from dozens of bar groups throughout the state. The group called on California lawmakers and Governor Arnold Schwarzeneggar to impose a two-year moratorium on executions and to create an independent committee focusing on race, the reliability of convictions and whether the condemned had adequate legal representation. It also requested an inquiry into the financial cost of capital punishment and whether capital punishment is imposed too often. Executions are rare in California even though it has the nation's largest death row of 640 inmates. One reason for the delay is that more than a quarter of those on California's death row have not been given a lawyer for their first and mandatory appeal to the state's Supreme Court. The state has carried out 10 executions since the death penalty resumed in 1976. (Associated Press, October 17, 2004) See Representation, Race, and Innocence.


$ Report Analyzes Washington Death Penalty System
A new report from the Washington Death Penalty Assistance Center reviews the efficiency of Washington State's death penalty system. The report includes an overview of Washington's statute and an explanation of the differences between capital and non-capital cases, demonstrating why capital cases require significantly greater resources. The authors report that:

o Of death penalty cases that completed the appeals process, 81% were overturned after errors were found. When those cases were tried a second time, not one of the inmates received a death sentence.

o For cases between 1999 and 2003, on average a death penalty trial cost twice ($432,000) as much as a non-death penalty murder trial ($153,000).

o From the arrest of the defendant through sentence, death penalty cases take longer (20 months) than non-death penalty cases (15 months). Appellate review for non-death penalty cases lasts an average of two years; death penalty reviews last seven.

o Since the death penalty was reinstated in Washington, four cases resulted in executions; three of those four inmates gave up part of their appeal. Only one case resulted in an execution after all review was exhausted, which took 11 years.

The reversals resulted from a variety of errors, including errors by trial judges, prosecutors, and defense lawyers. The reversals were not attributable to one identifiable factor, and the authors concluded that they are due to systemic problems with capital punishment. They note that Washington State has spent millions of dollars, numerous years, and a significant amount of resources on this flawed system.

Mark A. Larranaga and Donna Mustard, Washington's Death Penalty System: A Review of the Costs, Length, and Results of Capital Cases in Washington State (2004) Read the report.


$ New Voices: Time to Re-Think the Death Penalty
An op-ed in Oregon's Albany Democrat Herald called on the state to re-think its reliance on the death penalty:

20 years after voters in Oregon reinstated the death penalty, it is time to take a dispassionate look and conclude that it hasn't done much good.

In the general election of 1984, Oregon voters overwhelmingly called for the death penalty to be resumed. 2 initiatives were on the ballot that year. One, calling for capital punishment or mandatory life sentences for aggravated murder, passed by 893,818 to 296,988. A companion measure, exempting the death penalty from the provision in the state constitution against cruel and vindictive punishment, passed by 653,009 to 521,687.

One of the main arguments was that once killers were executed, we could be sure that they would never do any more harm.

The justification - prevention of additional killings - has not worked out in practice. For one thing, the death penalty does not apply to ordinary 1st-time murder convictions. For another, the judicial system has failed to live up to the intention expressed by the voters. For countless legal and procedural reasons, the system has so far failed to carry out the mandate of 1984. And the pace of murders in Oregon has been roughly the same since the 1970s - 100 or more a year.

The rate per 100,000 has declined as the population increased, perhaps because of Measure 11, which put people in prison for violent crimes well short of murder, rather than letting them off on probation.

There have been 2 executions since the death penalty went back on the books. In both cases, the condemned men refused to participate in appeals; they wanted to be executed. The system works when murderers want the state to help them end their incarceration. It does not work when the criminals refuse to consent to be put to death, which is most of the time.

29 men were on Oregon's death row as of last spring, some for as long as 16 years. One of those who had been there the longest, since 1988, had just had his conviction overturned for the third time, and his case was sent back to the trial court for another penalty phase.

Death penalty cases are more expensive and take longer than other murder cases. Typically the defendant gets 2 expert attorneys appointed for him rather than 1. And there are 2 trials in each case, one to determine guilt, the other to set the penalty.

Summing up: Executions have been all but non-existent. Even so, death penalty cases cost more. The existence of the penalty has not deterred murders. Lifelong prison terms have the same result as executions in keeping the public safe.

It's not that repeat murderers don't deserve the death penalty. They do. But the existence of the penalty in Oregon is not doing anything except to cause expense and delays. It's time to let it go.

We don't even need a constitutional change, which is unlikely anyway. All we need is prosecutors making up their mind to seek true-life sentences instead.

(Hasso Hering, Albany Democrat-Herald, August 29, 2004) (emphasis added). See Costs, Deterrence, and Life Without Parole.


$ Prosecutors Offer a Variety of Reasons for Foregoing Death Penalty
The San Mateo County District Attorney's Office reflected on a number of factors in deciding to forego seeking a death sentence for Seti Christopher Scanlan, whose first trial ended in a mistrial after he took the stand and begged jurors to sentence him to death. Prosecutors are now seeking a sentence of life in prison for Scanlan after concluding that "it was not reasonably likely that we would get a jury that would deliver the death penalty." The case has already cost taxpayers more than half a million dollars and that number would have doubled if prosecutors had chosen to seek a capital conviction during the second trial. Deputy District Attorney Steve Wagstaffe noted that even if a jury were to sentence Scanlan to death, years of subsequent appeals would cost taxpayers millions more. The decision to seek life effectively ends the case against Scanlan, who has admitted to killing a Burlingame bank manager. He will be sentenced to seven life sentences and possibly another 90 years on September 20, 2004. David Martel, whose wife was murdered by Scanlan, concurred in the decision not to seek death: "Scanlan has one very dark future. He won't know what it's like to live in freedom. It's gone, and it should be," he said. (Mercury News, August 24, 2004). See Victims, and Life Without Parole.


$ Prosecutor Forgoes Costly Death Penalty Trial
In Alameda County, California, prosecutors announced that they will not seek the death penalty against Richard Dean Wilson because it is unlikely that a jury would return a death sentence. State authories say the decision to seek a life sentence for Wilson avoids a costly death penalty case and saves taxpayer dollars from financing a lengthy trial with an uncertain outcome. Wilson pleaded no contest to the murder of Angela Marie Bledsoe. Prosecutor Jim Anderson noted, "This was the best penalty phase mitigation I have ever seen. We thought...the likelihood of getting a death vote on this guy was small. The best we would have ever gotten was hung jury after hung jury." (Tri-Valley Herald, July 30, 2004) See Life Without Parole.


$ Kansas Turns to Death Penalty Alternative to Save Money
A bill establishing the sentencing option of life without parole in capital cases has been sent to Kansas Governor Kathleen Sebelius for signature into law. The state legislature passed the bipartisan measure in an attempt to curb costs associated with the death penalty. A legislative audit released in December 2003 found that the average cost of a death penalty case in Kansas is $1.2 million. An advisory group of judges and attorneys who studied the stateÕs death penalty law last year concluded that a life-without-parole sentence could save the state between $400,000 and $500,000 per trial. Of the 38 states that have the death penalty, 35 have an alternative sentence of life without parole at least for some offenses. The exceptions are Kansas, New Mexico, and Texas. (Associated Press, April 1, 2004) See Life Without Parole.

$ Partial Costs in the Virginia trials of John Muhammad and Lee Malvo
An article in the Washington Post reported figures from the Virginia state courts on the costs of the capital prosecutions of John Muhammad and Lee Boyd Malvo:

Defense Costs

  • Muhammad's attorneys were paid $790,726 for their work and expenses.
  • Malvo's attorneys were paid over $781,000.

Police and Prosecution Costs

  • Police reported expenses of approxmately $500,000 to prosecute Muhammad. The prosecutors' legal costs were not listed.
  • Police spent $295,751 to prosecute Malvo. Prosecution salary costs were about $210,000.

Costs do not include appeals. The jury in Muhammad's case voted for a death sentence; Malvo's jury voted for a life sentence.
(Washington post, February 14, 2004)