Millions Misspent: What Politicians Don’t Say About the High Costs of the Death Penalty

Across the country, police are being laid off, prisoners are being released early, the courts are clogged, and crime continues to rise. The economic recession has caused cutbacks in the backbone of the criminal justice system. In Florida, the budget crisis resulted in the early release of 3,000 prisoners. In Texas, prisoners are serving only 20% of their time and rearrests are common. Georgia is laying off 900 correctional personnel and New Jersey has had to dismiss 500 police officers. Yet these same states, and many others like them, are pouring millions of dollars into the death penalty with no resultant reduction in crime.

The exorbitant costs of capital punishment are actually making America less safe because badly needed financial and legal resources are being diverted from effective crime fighting strategies. Before the Los Angeles riots, for example, California had little money for innovations like community policing, but was managing to spend an extra $90 million per year on capital punishment. Texas, with over 300 people on death row, is spending an estimated $2.3 million per case, but its murder rate remains one of the highest in the country.

The death penalty is escaping the decisive cost-benefit analysis to which every other program is being put in times of austerity. Rather than being posed as a single, but costly, alternative in a spectrum of approaches to crime, the death penalty operates at the extremes of political rhetoric. Candidates use the death penalty as a facile solution to crime which allows them to distinguish themselves by the toughness of their position rather than its effectiveness.

The death penalty is much more expensive than its closest alternative—life imprisonment with no parole. Capital trials are longer and more expensive at every step than other murder trials. Pre-trial motions, expert witness investigations, jury selection, and the necessity for two trials—one on guilt and one on sentencing—make capital cases extremely costly, even before the appeals process begins. Guilty pleas are almost unheard of when the punishment is death. In addition, many of these trials result in a life sentence rather than the death penalty, so the state pays the cost of life imprisonment on top of the expensive trial.

The high price of the death penalty is often most keenly felt in those counties responsible for both the prosecution and defense of capital defendants. A single trial can mean near bankruptcy, tax increases, and the laying off of vital personnel. Trials costing a small county $100,000 from unbudgeted funds are common and some officials have even gone to jail in resisting payment.

Nevertheless, politicians from prosecutors to presidents choose symbol over substance in their support of the death penalty. Campaign rhetoric becomes legislative policy with no analysis of whether the expense will produce any good for the people. The death penalty, in short, has been given a free ride. The expansion of the death penalty in America is on a collision course with a shrinking budget for crime prevention. It is time for politicians and the public to give this costly punishment a hard look.

Report by Richard C. Dieter, Esq. Executive Director, Death Penalty Information Center October 1992 - Revised, Fall 1994

Over two-thirds of the states and the federal government have installed an exorbitantly expensive system of capital punishment which has been a failure by any measure of effectiveness. Literally hundreds of millions of dollars have already been spent on a response to crime which is calculated to be carried out on a few people each year and which has done nothing to stem the rise in violent crime.

For years, candidates have been using the death penalty to portray themselves as tough on crime. But when politicians offer voters the death penalty as a solution to violence, the people actually become worse off in their fight against crime. The public is left with fewer resources and little discussion about proven crime prevention programs which could benefit their entire community. In today’s depressed economy, the criminal justice system is breaking down for lack of funds while states pour more money into the black hole of capital punishment expense.

Local governments often bear the brunt of capital punishment costs and are particularly burdened. A single death penalty trial can exhaust a county’s resources. Politicians singing the praises of the death penalty rarely address the question of whether a government’s resources might be more effectively put to use in other methods of fighting crime. A million dollars spent pursuing the execution of one defendant could provide far more effective long-term crime reduction: many additional police officers; speedier trials; or drug rehabilitation programs. Instead, in today’s political atmosphere, politicians worry about appearing soft on crime, even if soft means espousing proven methods of crime reduction. Thus, there is little debate about whether the death penalty accomplishes any good at all.

Meanwhile, the death penalty is reaching a critical stage in America. No longer isolated in the South, the death penalty has become a national phenomenon. There are more people on death row than at any time in the nation’s history. The list of states actually carrying out executions has grown to 20, with 4 new states added this year. The number of executions in 1992 is likely to be the largest in 30 years and the costs of pursuing the death penalty continue to mount. At the same time, the United States has parted company from the other democratic countries of the world which have largely abandoned capital punishment.

In the 1990 elections, politicians were particularly blatant in their promotion of the death penalty. It was advanced at all levels of the political process as an answer to crime and was used by liberals and conservatives alike. This year, the death penalty rhetoric, while not as blatant, continues the charade: vital crime fighting programs are being cut while the high-priced death penalty goes unchecked.

Like the emperor’s cowering subjects who praised his invisible robes, many politicians extol the death penalty as if it were a solution to the problem of crime. It is a cynical manipulation of the public’s legitimate fear of the growing tide of violence: a symbol without substance, a “solution” for politicians who know that no credible evidence exists linking the death penalty to a reduction of murder.

This report will focus first on the role the death penalty plays in the economic crisis facing states and local governments. As budgets everywhere are being tightened, the death penalty looms as an exorbitant and superfluous “luxury item.” Some counties have been pushed to the brink of bankruptcy and have had to enact repeated tax increases to fund these extremely expensive cases. As money is spent on the death penalty, it is thereby less available for the very programs which are the backbone of the effort to reduce crime in this country.

Secondly, the report will illustrate how politicians have manipulated the death penalty issue and avoided debate on the real causes of crime. Their approach has been typically marked by a simplistic rhetoric of revenge which ignores the ineffectiveness and costs of capital punishment. This superficial treatment comes precisely at a time when the economic crisis in criminal justice and crime prevention demands that the death penalty be given a harder look.

Death penalty cases are much more expensive than other criminal cases and cost more than imprisonment for life with no possibility of parole. In California, capital trials are six times more costly than other murder trials. [1] A study in Kansas indicated that a capital trial costs $116,700 more than an ordinary murder trial.[2] Complex pre-trial motions, lengthy jury selections, and expenses for expert witnesses are all likely to add to the costs in death penalty cases. The irreversibility of the death sentence requires courts to follow heightened due process in the preparation and course of the trial. The separate sentencing phase of the trial can take even longer than the guilt or innocence phase of the trial. And defendants are much more likely to insist on a trial when they are facing a possible death sentence. After conviction, there are constitutionally mandated appeals which involve both prosecution and defense costs.

Most of these costs occur in every case for which capital punishment is sought, regardless of the outcome. Thus, the true cost of the death penalty includes all the added expenses of the “unsuccessful” trials in which the death penalty is sought but not achieved. Moreover, if a defendant is convicted but not given the death sentence, the state will still incur the costs of life imprisonment, in addition to the increased trial expenses.

For the states which employ the death penalty, this luxury comes at a high price. In Texas, a death penalty case costs taxpayers an average of $2.3 million, about three times the cost of imprisoning someone in a single cell at the highest security level for 40 years. [3] In Florida, each execution is costing the state $3.2 million. [4] In financially strapped California, one report estimated that the state could save $90 million each year by abolishing capital punishment. [5] The New York Department of Correctional Services estimated that implementing the death penalty would cost the state about $118 million annually.[6]

The Recession and the Death Penalty

The effects of the present financial crisis on the criminal justice system vary widely, but the common thread has been cutbacks in critical areas. In a report released in August of this year, the American Bar Association found that “the justice system in many parts of the United States is on the verge of collapse due to inadequate funding and unbalanced funding.” The report went on to state that “the very notion of justice in the United States is threatened by a lack of adequate resources to operate the very system which has protected our rights for more than two centuries.”[7]

New Jersey, for example, laid off more than 500 police officers in 1991.[8] At the same time, it was implementing a death penalty which would cost an estimated $16 million per year, [9] more than enough to hire the same number of officers at a salary of $30,000 per year.

In Florida, a mid-year budget cut of $45 million for the Department of Corrections forced the early release of 3,000 inmates. [10] Yet, by 1988 Florida had spent $57.2 million to accomplish the execution of 18 people. [11] It costs six times more to execute a person in Florida than to incarcerate a prisoner for life with no parole. [12] In contrast, Professors Richard Moran and Joseph Ellis estimated that the money it would take to implement the death penalty in New York for just five years would be enough to fund 250 additional police officers and build prisons for 6,000 inmates. [13]

Ten other states also reported early release of prisoners because of overcrowding and underfunding. [14] In Texas, the early release of prisoners has meant that inmates are serving only 20 percent of their sentences and re-arrests are common. [15] On the other hand, Texas spent an estimated $183.2 million in just six years on the death penalty. [16]

Illinois built new prisons but does not have the funds to open them.[17] It does, however, have the fourth largest death row in the country. Georgia’s Department of Corrections lost over 900 positions [18] in the past year while local counties have had to raise taxes to pay for death penalty trials.

Police officers on the beat, imprisonment of offenders, and a functioning criminal justice and correctional system form the heart of the nation’s response to crime. Yet, in state after state, these programs are suffering drastic cuts while the death penalty absorbs time, money and political attention.

The Cost to Local Governments

An increasingly significant consequence of the death penalty in the United States is the crushing financial burden it places on local governments. The current economic recession has made it clear that there is no unlimited source of government largesse. Counties, which bear the brunt of the costs of death penalty trials, are also the primary deliverers of local health and human services in the public sector. [19] Hard choices have to be made among the demands of providing essential services, creative crime reduction programs such as community policing, and the vigorous pursuit of a few death penalty cases.

As Scott Harshbarger, Attorney General of Massachusetts, put it:

“Virtually every major program designed to address the underlying causes of violence and to support the poor, vulnerable, powerless victims of crime is being cut even further to the bone… . In this context, the proposition that the death penalty is a needed addition to our arsenal of weapons lacks credibility and is, as a sheer matter of equity, morally irresponsible. If this is really the best we can do, then our public value system is bankrupt and we have truly lost our way.” [20]

While state and national politicians promote the death penalty, the county government is typically responsible for the costs of prosecution and the costs of the criminal trial. In some cases, the county is also responsible for the costs of defending the indigent. Georgia, Alabama and Arkansas, for example, provide little or no funding for indigent defense from the state treasury.[21] In Lincoln County, Georgia, citizens have had to face repeated tax increases just to fund one capital case.

Even where the state provides some of the money for the counties to pursue the death penalty, the burden on the county can be crushing. California, for example, was spending $10 million a year reimbursing counties for expert witnesses, investigators and other death-penalty defense costs, plus $2 million more to help pay for the overall cost of murder trials in smaller counties. (Now, even that reimbursement is being cut.) But many financially strapped smaller counties still could not afford to prosecute the complicated death-penalty cases. Some small counties have only one prosecutor with little or no experience in death-penalty cases, no investigators, and only a single Superior Court judge. [22]

In Sierra County, California authorities had to cut police services in 1988 to pick up the tab of pursuing death penalty prosecutions. The County’s District Attorney, James Reichle, complained, “If we didn’t have to pay $500,000 a pop for Sacramento’s murders, I’d have an investigator and the sheriff would have a couple of extra deputies and we could do some lasting good for Sierra County law enforcement. The sewage system at the courthouse is failing, a bridge collapsed, there’s no county library, no county park, and we have volunteer fire and volunteer search and rescue.” The county’s auditor, Don Hemphill, said that if death penalty expenses kept piling up, the county would soon be broke. [23] Just recently, Mr. Hemphill indicated that another death penalty case would likely require the county to lay off 10 percent of its police and sheriff force. [24]

In Imperial County, California, the county supervisors refused to pay the bill for the defense of a man facing the death penalty because the case would bankrupt the county. The county budget officer spent three days in jail for refusing to pay the bill. A judge reviewing the case took away the county’s right to seek the death penalty, thus costing the county the partial reimbursement which the state provided for capital cases. The County took the challenge all the way to the California Supreme Court and ended up costing the County half a million dollars. [25] In the criminal trial, the defendant was acquitted.

A similar incident occurred recently in Lincoln County, Georgia. The county commissioners also refused to pay the defense costs when the attorney won a new trial for a death row inmate Johnny Lee Jones. As in California, the commissioners were sent to jail. Walker Norman, chair of the County Commission explained: “We’re a rural county of 7,500 people with a small tax base. We had to raise taxes once already for this case when it was originally tried, and now we are going to have to raise taxes again. It’s not fair.” [26] The first trial alone cost the county $125,000.[27] The second trial was completed in September and the defendant received a life sentence.

In Meriwether County, Georgia, a county of 21,000 residents and a $4 million annual budget, the prosecutor sought the death penalty three times for Eddie Lee Spraggins, a mentally retarded man. The case cost the county $84,000, not including the defense attorney’s bill for appealing, and the third conviction was again overturned by the Georgia Supreme Court. [28] Spraggins was finally granted a plea and received a life sentence.

In Mississippi, Kemper and Lauderdale Counties recently conducted a border survey battle to avoid responsibility for a capital murder trial. Faced with a case that could cost the county $100,000, Kemper County wanted to show that the scene of the murder was outside their border and conducted two surveys of the site. County Supervisor Mike Luke explained, “As much as we were talking about the taxpayers of Kemper County having to pay out, we believed we needed to be sure.” Luke said that the decision to seek the death penalty was not his—he only had to come up with the money. Lauderdale County, where the trial was originally scheduled, has now sent a bill to Kemper County for expenses incurred while holding the defendant in jail for 19 months. Kemper County is considering how much it will have to raise taxes just to pay the initial costs of the prosecution.[29]

In Yazoo City, Mississippi, the town is worried that it, too, might get stuck with an expensive death penalty case. “A capital murder trial is the worst financial nightmare any government body could envision,” said the editor of the local paper. [30]

With more death row inmates and more executions than any other state, Texas is also experiencing the high costs of executions. Norman Kinne, Dallas County District Attorney, expressed his frustration at the expense:

“[E]ven though I’m a firm believer in the death penalty, I also understand what the cost is. If you can be satisfied with putting a person in the penitentiary for the rest of his life … I think maybe we have to be satisfied with that as opposed to spending $1 million to try and get them executed… . I think we could use (the money) better for additional penitentiary space, rehabilitation efforts, drug rehabilitation, education, (and) especially devote a lot of attention to juveniles.” [31]

Vincent Perini of the Texas Bar Association, calls the death penalty a “luxury”:

“There’s some things that a modern American city and state have got to have. You have to have police and fire and public safety protection. You have to have a criminal justice system. You do not have to have a death penalty. The death penalty in criminal justice is kind of a luxury item. It’s an add-on; it’s an optional item when you buy your criminal justice vehicle.” [32]

Chief Criminal Judge, James Ellis, came to a similar conclusion in Oregon: “Whether you’re for it or against it, I think the fact is that Oregon simply can’t afford it.” [33] James Exum, Chief Justice of the North Carolina Supreme Court, agrees: “I think those of us involved in prosecuting these (death penalty) cases have this uneasy notion that . . . these cases are very time-consuming and very troublesome and take a lot of resources that might be better spent on other kinds of crimes… .”

Efforts are under way in both Congress and the Supreme Court to reduce the avenues of appeal available to death row inmates. But most of the costs associated with the death penalty occur at the trial level. [34] Whatever effect cutting back on the writ of habeas corpus may have on the time from trial to execution, it is not clear that the changes will make the death penalty any less expensive, and they may result in the execution of innocent people. With the number of people on death row growing each year, the overall costs of the death penalty are likely to increase.

Some state appeals courts are overwhelmed with death penalty cases. The California Supreme Court, for example, spends more than half its time reviewing death cases. [35] The Florida Supreme Court also spends about half its time on death penalty cases. [36] Many governors spend a significant percentage of their time reviewing clemency petitions and more will face this task as executions spread. As John Dixon, Chief Justice (Retired) of the Louisiana Supreme Court, said: “The people have a constitutional right to the death penalty and we’ll do our best to make it work rationally. But you can see what it’s doing. Capital punishment is destroying the system.” [37]

Alternatives for Reducing Crime

New York does not have the death penalty. In the early 1980s, the N.Y. State Defenders Association conducted a study to estimate how much the death penalty would cost if it were to be implemented in New York. The estimates were that each case would cost the state $1.8 million, just for the trial and the first stages of appeal. [38] The majority of those costs would be borne by the local governments. New Yorkers have consistently re-elected a governor whom they know will veto any death penalty legislation which comes across his desk. Now it appears that New York may be reaping the benefit of that choice.

Significantly, no city in New York State, without the death penalty, is among the nation’s top twenty-five cities in homicide rates according to statistics recently released by the FBI. [39] In particular, New York City bucked the national trend and experienced a decline in every major category of crime last year. [40] In the first four months of 1992 crime is again down across the board in New York, compared to the same period two years ago, with murders decreasing by over 11 percent. [41]

While direct causes for a decrease in crime are difficult to pinpoint, many experts have attributed New York’s success to an increasingly popular concept known as community policing. Two years ago, New York had 750 foot officers on the street. Today that number is 3,000. [42] Community policing is a strategy for utilizing police officers not just as people who react to crime, but also as people who solve problems by becoming an integral part of the neighborhoods they serve.

Such programs do not come cheaply, but they do seem to be effective. In Prince George’s County, Maryland, police Capt. Terry Evans said their community policing program is “the only thing I’ve seen in 23 years of law enforcement that’s had an impact, actually turned it around.”[43] Fully implemented, Prince George’s community policing program will cost the county $10 million per year.

The programs apparently work best where governments can afford to add officers, rather than taking from existing numbers, leaving other work unattended. This is borne out in cities like Boston where murders dropped 23 percent in 1991, partly because of a program that put more police officers on the beat.[44] The need for more police officers is supported by a survey of Chiefs of Police from around the country, 70 percent of whom said they could no longer provide the type of crime prevention activities they did ten years ago because of too few police officers.[45]

Boston, like New York, is in a state without the death penalty, though Governor William Weld (R-Mass.) has been attempting to re-instate it. That proposal has met with opposition from the state’s district attorneys. Judd Carhart, past president of the district attorneys’ association said a majority of the state’s district attorneys oppose capital punishment partially on the grounds that it is a waste of money better spent on other areas of law enforcement and incarceration. [46] Attorney General Scott Harshbarger agreed: “We need major criminal justice and court reform now to address the crisis in our criminal justice system. The death penalty, however, has no place in this reform effort. It is a simplistic, arbitrary, misguided, ineffective and costly response, cloaked in the guise of a remedy to the brutalizing violence that angers and frustrates us all.” [47]

Compared to community policing and other successful programs, the death penalty, for all its cost, appears to have no effect on crime. A New York Times editorial noted recently that the number of executions in this country “constituted less than .001 percent of all murderers … and were only .000004 percent of all violent criminals. Even if U.S. executions were multiplied by a factor of 10 they would still constitute an infinitesimal element of criminal justice.” The public seems to agree: only 13 percent of those who support capital punishment believe it deters crime. [48]

New York and Massachusetts can be contrasted with Texas which is the nation’s leader in the use of the death penalty. Texas has the largest death row and has executed almost twice as many people as the next leading state. Houston alone accounts for 10% of all people executed in the United States since 1976.[49] Yet, the murder rates in three of Texas’ major cities rank among the nation’s top 25 cities. In all three, Houston, Dallas and Fort Worth, the number of murders increased significantly last year. [50]

Wherever the death penalty is in place, it siphons off resources which could be going to the front line in the war against crime: to police, to correctional systems, and to neighborhood programs which have proven effective. Instead, these essential services are repeatedly cut while the death penalty continues to expand. Politicians could address this crisis, but, for the most part, they either endorse executions or remain silent.

What drives this high spending on such an ineffective program? The answer lies partly in the promotion by politicians who hope to benefit by advocating the death penalty. Even though it fails to meet the cost-benefit test applied to other government programs, many politicians use capital punishment to distinguish themselves from their opponents. Politicians have generally not posed the death penalty as one alternative among a limited number of crime fighting initiatives which the people must ultimately pay for. Rather, the death penalty is used to play on the public’s fear of crime and to create an atmosphere in which the extreme view wins. The rhetoric then becomes policy and the people pay.

The Death Penalty in National Politics

Flush with his party’s convincing victory in the 1988 Presidential elections, Republican National Chairman Lee Atwater urged his fellow Republicans to capitalize on the issue of crime because “almost every Democrat out there running is opposed to the death penalty.” [51] Apparently, the Democrats were listening as well since politicians of all stripes rushed to proclaim their support of capital punishment.

From Florida to California, the political races in 1990 were marked by excessive attempts by politicians to appear tougher on crime by their willingness to execute people. Ironically, those who were most demonstrative about the death penalty were defeated, though seldom by opponents of capital punishment.

In this election year, the national political debate on the death penalty is more conspicuous for its silence. The utility of the death penalty as a defining issue was lost when most of the Democratic Presidential candidates supported the death penalty. George Bush and Bill Clinton are both in favor of the death penalty, though neither has made it a major campaign issue.

George Bush: From Willie Horton to the Crime Bill

In the previous campaign, George Bush was able to link a furlough for convicted murderer Willie Horton with Michael Dukakis’ position against the death penalty, thus portraying Dukakis as soft on crime. This time, President Bush has sought to convey a tough image by his support for a greatly expanded federal death penalty. When recent unemployment figures indicated that the economy was going to be a negative for the Bush campaign, his advisers called for a greater emphasis on crime to bolster the President’s popularity.[52]

In 1990, President Bush sought to identify the Republican Party as tough on crime. He introduced a crime bill whose centerpiece was an expansion of the federal death penalty to over 40 new crimes. Not to be outdone, the Democrats endorsed a bill allowing the death penalty in over 50 new crimes. Despite two years of debate and attempts to expand the death penalty even further, the bill remains in political gridlock. While the bill’s death penalty provisions and restrictions on federal habeas corpus appeals have received the most notice, proposals for law enforcement, prison construction, boot camps and other crime fighting provisions have received little attention.

Just prior to the last presidential election in 1988, the death penalty was also promoted as a way of appearing tough on drug crime. Legislation was passed imposing the death penalty in drug-related murders but that law has resulted in only seven prosecutions and one death sentence in almost four years. Bush’s bill is designed to have a much broader application. However, some parts of the current bill are also window dressing, having little to do with the public’s concern about crime.

The crime bill would impose death sentences for such offenses as treason, espionage, murder in the act of destroying a maritime platform, murder of federal egg product inspectors, horse inspectors and poultry inspectors. These proposals will have no real impact on crime in the streets, which is the rationale for proposing such legislation. As one legal commentator put it: “What they mean when they say they’re ‘getting tough’ is simply that they are talking tough.” [53]

An expanded federal death penalty could also prove to be enormously expensive. One amendment approved by the Senate would impose the death penalty for murders involving weapons used in interstate commerce. The Congressional Budget Office estimated that this proposal would cost as much as $600 million over four years. [54]

Senator Thomas Daschle (D.-SD) described much of the talk about the death penalty on Capitol Hill as political posturing: “We debate in codes, like the death penalty as a code for toughness on crime. The whole game is a rush to acquire the code: he who gets the code first wins… . It denigrates the national debate.” [55]

Bill Clinton: Insulating Himself from Attack

Although Clinton’s pro-death penalty stance has partially neutralized Bush’s use of this tactic in the current campaign, on the death penalty one can never be tough enough. For example, Vice President Dan Quayle recently attacked Clinton for being soft on capital punishment (despite having presided over four executions as Arkansas Governor) because Clinton had suggested that Gov. Mario Cuomo (D-NY) might make a good Supreme Court Justice. [56]

Bill Clinton has criticized Bush’s manipulation of the death penalty issue: “President Bush has used an expansion of the death penalty as a cover for actually weakening the partnership of the federal government in the fight against crime.” [57] However, Clinton bowed to the popular wisdom when he made a prominent demonstration of his support for the death penalty by leaving the primary campaign in January to preside over the execution of a brain damaged defendant in Arkansas.

Ever since he lost the Governor’s race in Arkansas after serving only one term, Clinton has made clear his support for the death penalty. Clinton returned to office as Governor in 1983 and has granted no commutations to anyone on death row and has presided over all four of the state’s executions in the modern era. However, as Arkansas was returning to executions, its murder rate was increasing: murders in Little Rock, alone, jumped 40 percent in the past year. [58]

The Death Penalty in State Politics

The death penalty is almost the exclusive function of the states rather than the federal government. It is not surprising, then, that some of the most blatant attempts at political manipulation of the death penalty have occurred on the level of state politics.

Florida and Texas are two states with the largest death rows and most active execution chambers. They were also the scene of recent gubernatorial races featuring candidates boasting of their ability to secure more executions than their opponent. In 1990, Florida’s Governor Bob Martinez campaigned with background shots of smirking serial killer Ted Bundy, while reminding the voters how many death warrants he had signed. Martinez was defeated by Democrat Lawton Chiles who also favors the death penalty.

The Texas Campaign: “Who Can Kill the Most Texans?”

The governor’s race in Texas presented a variety of candidates vying to demonstrate their greater support of the death penalty. As populist Democrat Jim Hightower put it, the race boiled down to one issue: “Who can kill the most Texans?” [59]

Former governor Mark White portrayed his toughness by walking through a display of large photos of the people executed during his term. Attorney General Jim Mattox insisted that he was the one who should be given credit for the 32 executions carried out under his watch. Meanwhile, the Republican candidate, Clayton Williams showed pictures of a simulated kidnapping of young children from a school yard and then touted his backing of a separate law to impose the death penalty for killing children. His ad ended with the slogan: “That’s the way to make Texas great again.” [60]

In the end, the campaigns succeeded only in gaining embarrassing notoriety for Texas as Democrat Ann Richards became the eventual winner. Richards has continued Texas’ leadership in carrying out the most executions of any state. However, while Texas is spending hundreds of millions of dollars on the death penalty, it is having to release other prisoners early to avoid overcrowding. Inmates serve only an average of one-fifth of their sentences. In Harris County (Houston), arguably the death penalty capital of the country, 67 percent of those arrested are recidivists and crime is the people’s number one concern.[61]

California Politics: A Case of Neglect

California’s 1990 gubernatorial race also involved jockeying for the position of “death penalty candidate.” Dianne Feinstein was the most outspoken, describing herself in commercials as “the only Democratic candidate for governor in favor of the death penalty.” [62] This ploy caused her Democratic rival, John Van de Kamp, to respond with ads assuring the voters that he wouldn’t let his conscience get in the way of carrying out executions. Although personally opposed to the death penalty, his ads proclaimed his record as attorney general of putting or keeping almost 300 people on California’s death row and featured pictures of the condemned inmates in the background.

Van de Kamp lost to Feinstein and Feinstein then lost to Republican Pete Wilson, another strident pro-death penalty candidate. This year Feinstein is running for the Senate and all 11 of the major candidates for California’s two Senate seats support the death penalty. [63]

California is in the throes of an extreme financial crisis. The state paid its workers with IOUs for two months and most social services are facing major cuts. Los Angeles County alone is considering laying off 500 sheriff’s deputies to cope with the loss of state funds. Such cuts are likely to have a direct effect on public safety. As one official remarked, “The public doesn’t seem to have a heightened sense of urgency about this yet, and I don’t think they ever will—until they become victims themselves.”[64] Nevertheless, the state has been paying an estimated $90 million per year over normal costs to carry out the death penalty.[65] With over 300 people condemned to death, California has the second largest death row in the country.

The Los Angeles riots were a stark reminder of the anger which simmers as a result of social neglect. Reforms like community policing were contemplated in L.A. but were viewed skeptically by former Police Chief Daryl Gates because no funds were available: “The first problem, ” Gates said in his new book, “is the need for more officers. But again, how much more can taxpayers be asked to pay?” [66] As a result, L.A.’s police force was described by one expert as “the antithesis of community policing. The department was cool, aloof, disconnected from the community.” [67] The city burned.

New York Politics: Grandstanding on the Death Penalty

New York illustrates that voters are not monolithic when it comes to the death penalty. Although more executions have been carried out in New York since 1900 than in any other state, it does not have the death penalty now and has not executed anyone since 1963. For ten straight years, the state legislature has passed death penalty legislation and for ten years Governor Cuomo has vetoed the bills, continuing the tradition of Governor Hugh Carey before him. Although the majority of New Yorkers appears to support capital punishment, Cuomo has been re-elected repeatedly. Cuomo’s 1990 Republican opponent, Pierre Rinfret, built a campaign around the death penalty but failed to win voter support. Even fellow Republican and death penalty supporter Jack Kemp didn’t support such blatant manipulation:

“He’s running on the death penalty for drug pushers. I mean, goodness gracious, if … that’s what politics has descended into in the 1990s—who can get to the far right on the death penalty—it is a sad day… . I don’t want to be in the Republican Party of New York if that’s all they can talk about, the death penalty. I am for the death penalty, but that pales in significance to the need for a healthy economic and opportunity-oriented state, whether it is New York or the state of the economy nationally.”[68]

The New York legislature has often come close to overriding Cuomo’s veto. Lately, however, that movement has been losing steam. The controversy demonstrates that switching one’s allegiance on the death penalty issue to join the mainstream is not always a ticket to electoral success. In the 1990 elections, three Assemblymen who once opposed the death penalty, but who had lately switched their votes, were all defeated. [69] As a result, the vote to override Cuomo’s veto lost by a larger margin in the next session.

The New York Daily News, long a supporter of the death penalty with such subtle headlines as FRY HIM!, has apparently become frustrated with the political games-playing surrounding the issue and now rejects the death penalty. In an editorial earlier this year, the News took particular aim at those pro-death penalty politicians who vote against the alternative sentence of life-without-parole because it would make their own death penalty bill harder to pass: “Why won’t the Legislature adopt the obvious alternative—life without parole? Because pols would rather grandstand on the death penalty. It is cheap political expedience, not wise public policy.” [70]

The death penalty’s chief proponent in the New York Assembly, Vincent Graber from Buffalo, acknowledged the kind of manipulation the News criticized. Graber admitted that the life-without-parole bill was rejected because it interfered with the quest for capital punishment: “This being an election year,” Graber said in 1990, “I don’t think the Senate is in the mood to go with mandatory life, no parole. The death penalty would become less of a campaign issue and I don’t think they want to do that.” [71]

Politics in Other Places

Politicians are quick to capitalize on an opportunity to promote the death penalty. Massachusetts does not have the death penalty, but when Carol Stuart, a young white, pregnant woman, was brutally murdered in 1989, the city of Boston reacted in angry shock. The media and the public were misled to believe that a young black man was the attacker and the Republican Party called a press conference within hours of Stuart’s death demanding a return to capital punishment. [72] After the embarrassing truth came out that Stuart was probably murdered by her own husband, the campaign fizzled.

In Arizona, state Representative Leslie Johnson (R-Mesa) called for the death penalty for child molesters after a particularly horrendous crime in Yuma. On the floor of the House, Johnson proposed the quick fix: “If we do away with these people, if we do have the death penalty and if you are a sex offender, you’re just out of here — dead, gone. And if we get a few innocent people, fine and dandy with me. I’ll take the percentage, folks, because I don’t want to put my children at risk anymore.” [73]

And in the District of Columbia, Senator Richard Shelby (D-Ala.) proposed that the death penalty be enacted for the city by Congress after one of his aides was killed on Capitol Hill. Congress responded by cutting out the Mayor’s $25 million youth and anti-crime initiative while imposing a referendum on the death penalty. The hidden but inevitable costs resulting from having capital punishment were not addressed in the appropriations bill. But if the experience of other states is any indication, it will be nine years before any execution is carried out, after an expenditure of $100 million or more, either from federal or DC funds.

Finally, the death penalty is manipulated by those politicians who are closest to it: the elected state attorneys and prosecutors who make the decisions on which cases to pursue the ultimate punishment. A campaign advertisement for district attorney Bob Roberts of North Carolina, for example, lists all the defendants for whom he won a death sentence. His slogan: “If one of your loved ones is murdered, who do you want to try the accused? Bob Roberts with his splendid record and experience or his inexperienced opponent.” [74]

As a public defender, attorney general Grant Woods of Arizona had argued before a judge that it would be murder if the judge sentenced his innocent client to death. Now, as chief prosecutor and staunch defender of the death penalty, Woods turned on his client, Murray Hooper, saying he is guilty and deserves the death penalty. Since Hooper is still on death row, such a representation has raised questions of legal ethics and client loyalty. Woods claims he is just doing his job. [75]

A district attorney in Georgia, Joseph Briley, was also charged with numerous breaches of legal ethics in a Supreme Court amicus brief signed by 12 legal ethics professors from around the country. When the conviction of Tony Amadeo was overturned, Briley first announced that he would again seek the death penalty. However, he later allowed the defendant to plead guilty in exchange for a life sentence after the defense proffered three expert witnesses to testify that his ethical violations should disqualify him from retrying the case. Briley’s frustration at having to take the plea was summed up in his comment to one of the defense attorneys: “You’ve probably made me unelectable.” [76]

In Kentucky, Commonwealth Attorney Ernest Jasmin made a name for himself by obtaining a death sentence against the killer of two teenagers from Trinity High School. He then campaigned as the Trinity Prosecutor, taking ads in the high school newspaper and campaigning with one of the victims’ parents frequently at his side. [77]

In Nebraska, attorney general Don Stenberg took the unusual step of attaching a personal letter to his Supreme Court brief urging the execution of Harold Otey, whom he described as a “vicious killer” who “still smirks at the family of the victim….” [78] While pushing publicly for Otey’s death, Stenberg also sat as one of three decision makers at Otey’s clemency hearing and two of his staff presented gruesome details of the murder.

In sum, there has been a steady stream of politicians attempting to capitalize on the death penalty issue in recent years. Real solutions to crime get overshadowed in the tough talk of capital punishment. When some of these politicians are successful, the death penalty gets implemented or expanded and the people begin to pay the high costs. Somewhere down the road there may be an execution, but the crime rate continues to increase. Politicians do the people a disservice by avoiding the hard economic choices that have to be made between the death penalty and more credible methods of reducing violence.

The death penalty is parading through the streets of America as if it were clothed in the finest robes of criminal justice. Most politicians applaud its finery; others stare in silence, too timid to proclaim that the emperor has no clothes. Instead of confronting the twin crises of the economy and violence, politicians offer the death penalty as if it were a meaningful solution to crime. At the same time, more effective and vital services to the community are being sacrificed. Voters should be told the truth about the death penalty. They should understand that there are programs that do work in reducing crime, but the resources to pay for such programs are being diverted into show executions. Being sensible about crime is not being soft on crime. Too much is at stake to allow political manipulation to silence the truth about the death penalty in America.

Since the publication of Millions Misspent in the fall of 1992, more judges, prosecutors and other state officials have joined those questioning the death penalty in light of its exorbitant costs. At a time when crime is the nation’s primary concern, new data confirms the Report’s earlier conclusion that the death penalty is draining state treasuries of funds which could be spent on effective crime prevention measures.

The financial burden is particularly acute in counties where administrators are being forced to choose between raising taxes and bankruptcy in order to prosecute death penalty cases. While many politicians continue to ignore these costs in using the death penalty to sound tough, some prosecutors are now deciding not to seek executions because the cases are simply too expensive.

The Duke University Study

In May, 1993, a federally funded study brought a new perspective to the cost debate. [79] This model study was prompted by an American Bar Association proposal and was conducted at Duke University’s Terry Sanford Institute of Public Policy. It is one of the most comprehensive and thorough analyses on this topic.

Authors Philip Cook and Donna Slawson spent two years comparing the costs of adjudicating capital and noncapital cases in North Carolina and concluded that capital cases cost at least an extra $2.16 million per execution, compared to what taxpayers would have spent if defendants were tried without the death penalty and sentenced to life in prison. [80] Moreover, the bulk of those costs occur at the trial level.

Applying their figures on a national level implies that $82 million was spent just for U.S. executions in 1993, and that the national bill for the death penalty has been over $500 million since the death penalty was reinstated.[81] Yet, the national concern about crime indicates that few feel safer for all this expense.

Time Is Money

Death penalty cases are so expensive because they take longer at every stage and require vast resources for both the prosecution and the defense. The authors of the North Carolina study identified 24 principal areas in which a death penalty case would likely be more expensive than if the case were tried non-capitally. [82] These areas included:

• More investigative work by both law enforcement officials and the defense team
• More pre-trial motions
• More questioning concerning individual jurors’ views on capital punishment and more peremptory challenges to jurors at jury selection
• The appointment of two defense attorneys
• A longer and more complex trial
• A separate penalty phase conducted in front of a jury
• A more thorough review of the case on direct appeal
• More post-trial motions
• Greater likelihood that counsel will be appointed for a federal habeas corpus petition
• Greater likelihood that there will be full briefing and argument on federal review
• More preparation for, and a longer clemency proceeding.

The North Carolina study estimated that a death penalty trial takes about four times longer than a non-capital murder trial. And, of course, not every death penalty trial results in a death sentence. Based on the experience in North Carolina, the authors found that less than a third of capital trials resulted in a death sentence. [83] Nevertheless, each of the these trials had the extra expense associated with death penalty proceedings. The trial costs alone were about $200,000 more for each death penalty imposed than if no death penalty was involved. [84]

The authors computed the costs of appealing a death penalty case and subtracted the savings which accrue to the state when an execution finally occurs. The “savings,” which are due to the inmate no longer being kept at state expense, only occur when an execution is actually carried out. As with the trial level, there is a “failure” rate resulting from the fact that many inmates who are sentenced to death will never be executed. Many cases will be overturned on appeal, some inmates will commit suicide, others will die of natural causes. Again, based on the experience in North Carolina, the authors estimated that only one inmate would likely be executed for every ten who are sentenced to death. [85] This is actually higher than the national rate where only about one in every eleven cases which have been resolved has resulted in an execution. [86]

Bulk Of Costs at Trial Level

The importance of accounting for this failure rate is critical for two reasons. First, it represents a truer picture of what it is actually costing the state to achieve an execution. It is not just the cost of a single person’s trial and appeals. That would be comparable to saying that the cost of landing a man on the moon was the cost of fuel for the one rocket which brought him there. The state has to pay more for all the trials and appeals which start out as death penalty cases but for which there will never be the “saving” associated with an execution.

Second, the per execution costs reveal that the bulk of death penalty costs occur at the trial level. Often those who acknowledge the high costs of the death penalty believe that the expense is due to “endless appeals.” By taking into account the capital cases which will never result in an execution, the North Carolina study makes clear that the trials produce the largest share of death penalty costs [87] and these costs will not be substantially lessened by tinkering with the opportunities that death row inmates have to appeal. A significant financial corollary of this finding is that taxpayers must pay death penalty expenses up front, whereas the costs of a life sentence are meted out gradually over many years, making that alternative even less expensive.

Evidence from Other States

There have been numerous indications from other areas of the country that the death penalty is straining the budgets of state and local governments and that the financial drain is getting worse. Some counties have been brought to the brink of bankruptcy because of death penalty cases. More county commissioners have risked going to jail for balking at paying for capital prosecutions, [88] while others reluctantly raise taxes to pay the costs of even one capital case.

• In San Diego, California, the prosecution costs alone (not counting defense costs or appeals) for three capital cases averaged over half a million dollars each. [89] One estimate puts the total California death penalty expense bill at $1 billion since 1977. [90] California has executed two people during that time, one of whom refused to appeal his case.
• In Jasper County, Mississippi, the Circuit Judge and the District Attorney had to address the county supervisors to get more money for death penalty prosecutions. The only solution was to raise county taxes. “It’s going to be a fairly substantial increase,” said the board president, John Sims. “I hope the taxpayers understand….” [91]
• In Connecticut, a state with only a handful of death row inmates, The Connecticut Law Tribune was unable to calculate the total costs of capital punishment but concluded that the “costs are staggering.”[92] State’s attorney Mark Solak said he spent between 1,000 and 1,500 hours preparing one capital prosecution. [93] The defense attorney in the case noted that if his client had been given an offer of life in prison without parole he would have accepted it “in a heartbeat.” “The case,” he said, “would have been over in 15 minutes… . No one would have spent a penny.” [94]

Other items from The Connecticut Law Tribune’s report:

• Jury selection in death cases can take eight weeks. [95]
• One state’s attorney in one case spent about 7 months distilling a 10,000 page trial transcript, and three other attorneys assisted him, putting in a total of 15 months’ work. [96]
• The state’s public defender office spends about $138 defending an average criminal case. Death penalty cases, however, have cost over $200,000 each to defend. [97]

In South Carolina, The Sun News reported that the bills for death penalty cases are “skyrocketing” because of a state supreme court ruling that attorneys in death penalty cases deserve reasonable fees. Before the decision, attorneys received no more than $2,500 for each death penalty case.[98]

It took six years to extradite Charles Ng from Canada to California mainly because Canada resisted the prospect of sending someone to a possible death sentence. Since coming to California, the case has cost Calaveras County $3.2 million, an amount which would have bankrupt the county except for the fact that the state agreed to reimburse the county until 1995. Now it looks as though the bailout will have to last until the year 2000, with millions more in expenses yet to come. [99]

In Harris County, Texas, there are 135 pending death penalty cases. State Judge Miron Love estimated that if the death penalty is assessed in just 20 percent of these cases, it will cost the taxpayers a minimum of $60 million. Judge Love, who oversees the county’s courts, remarked: “We’re running the county out of money.” [100]

Reactions to the High Costs

There have been many similar reactions from state and local officials who wonder about the wisdom of spending such exorbitant sums on such unpredictable and isolated cases. In Tennessee, the number of people sentenced to death has dropped because prosecutors say death penalty cases cost too much. [101]

In Texas, Judge Doug Shaver from Houston was also concerned about the high costs of so many capital cases: “I can’t figure out why our county is prosecuting so many more (death) cases than comparably large counties around Texas. When the law changed so defendants can be sentenced to 40 years flat time (as an alternative to death), and when you start taking into account what the taxpayers are getting for their money, it seems like some defendants should be tried … without the death penalty.” [102]

Former Texas Attorney General Jim Mattox agrees: “Life without parole could save millions of dollars.” “In other words,” he wrote, “it’s cheaper to lock ‘em up and throw away the key … . As violent crime continues to escalate, it’s something to consider.” [103]

California has been hit particularly hard by natural disasters and the economic recession. Many social programs have had to be cut. Yet the state continues to spend hundreds of millions of dollars on the death penalty which has resulted in two executions in seventeen years. Even supporters of the death penalty recognize that it is a financial loser. In financially strapped Orange County, Vanda Bresnan, who manages the criminal courts, remarked: “Even though I do believe in the death penalty, I wonder how long the state or county can afford it,” [104] she said. Defense attorney, Gary Proctor, who practices in the same county, believes that the solution will be found by cutting other services: “What I see happening is that other services provided to the taxpayer — such as libraries and parks — will be cut back. Certain people are not aware of the tradeoffs.” He added: “Strong beliefs are easy enough to hold if you don’t think they’re coming out of your pocket.”[105]

In rural Kentucky, tax bases are small and budgets are already stretched. When an expensive capital case is about to be heard in court, the state and county often argue for weeks about who will pay. As Michael Mager, executive director of the Kentucky County Judge-Executives Association, points out, “A little rural county in Kentucky just can’t deal with bills like that.” [106]

And in Connecticut, the Chief State’s Attorney, John M. Bailey, echoed similar concerns: “Every dollar we spend on a capital case is a dollar we can’t spend anywhere else… . We have to let the public know what it costs” to pursue a capital case. [107]

Political Manipulation of the Death Penalty

Despite the overwhelming weight of evidence pointing to the unmanageable and growing costs of imposing capital punishment, politicians continue to ignore these costs in using the death penalty to appear tough on crime. This hypocrisy reached new heights with the passage of the federal crime bill. Every time this legislation was considered, the number of new death penalty crimes grew. While debate immediately before the bill’s passage centered on whether the proposed crime prevention measures were too expensive, little was said about the costs that these new death penalties would bring or whether they were likely to do any good.

Ultimately, funding for crime prevention programs was cut back but the 60 new federal death penalty crimes were left intact. Unfortunately, the legacy of the death penalty will probably outlast all the other provisions of the legislation. Federal funding for new police, prisons and programs like midnight basketball will be phased out in a few years but the costs of expanding the death penalty will last for decades. Federal prosecutions in death penalty cases are likely to be even more expensive than in the states. Thousands of offenses will now be eligible for the federal death penalty. Even if only a small fraction of these cases are pursued, the costs of additional federal prosecutors, additional federal public defenders and judges will be draining. The federal government will be joining the states in spending millions of dollars for an occasional execution, with no effect on the real problem of crime.

Some Representatives and Senators voted in conscience against the crime bill because of its death penalty provisions. But, for the most part, politics prevailed. Philip Heymann, the former U.S. Deputy Attorney General who recently resigned from the Justice Department, commented that the entire crime debate was “so mired in politics and ideology that no one in the Government dared speak the truth about the subject.” The truth, as he saw it, was that the crime bill was a deeply flawed quick fix that sounded great “for the first 15 seconds,” the perfect length for a campaign ad sound bite. [108]

Robert Morgenthau, the District Attorney for Manhattan, similarly castigated the politics behind expansion of the federal death penalty: “I know of no law-enforcement professional who believes that all the death penalty provisions and new Federal crimes would affect public safety in the slightest.” The bill, he noted, “would provide no new Federal judges, prosecutors or courtrooms. That isn’t surprising: the new crimes and death sentences are window dressing.”[109]

Conclusion

Recent studies of death penalty costs reinforce the existing evidence that the death penalty is becoming unmanageably expensive. Like a black hole, it absorbs vast quantities of resources but emanates no light. Nevertheless, politicians and much of the public are drawn to it in the hope of finding a quick fix to the crime problem. But as the actual costs of capital punishment become clearer, the public should be in a better position to judge the death penalty as they would other programs. If a program is highly cost intensive, given to years of litigious expense, focused on only a few individuals, and produces no measurable results, then it should be replaced by better alternatives.

Amanda Smith assisted in the preparation of this Epilogue.