Testimony of Richard Dieter Before the Legislative Commission Subcommittee to Study the Death Penalty

Testimony of
Richard C. Dieter
Executive Director, Death Penalty Information Center
Before the
Legislative Commission's Subcommittee to Study
the Death Penalty and Related DNA Testing

Assembly and Senate of Nevada
Las Vegas, Nevada

April 18, 2002
via videoconference

INTRODUCTION

Good afternoon. Madam Chair, and Members of the Committee. I want to thank you for this opportunity to appear before you and to offer my remarks on the costs of the death penalty.

My name is Richard Dieter and I am the Executive Director of the Death Penalty Information Center in Washington, DC, a position I have held for the past 10 years. I am also an attorney and an adjunct professor at Catholic University Law School. The Death Penalty Information Center is a non-profit organization whose focus is research and analysis of capital punishment.

I commend your efforts to study this important issue which has generated so much debate over the past few years, and indeed, for many years before. I think it is proper that the subject of costs appears as one of the last topics you are considering. But I don't think it is last because it is unimportant. To the contrary, I believe costs are the linchpin for many of the other issues related to capital punishment.

Beyond the fiscal considerations, costs are central to this debate for two reasons:
First, when we discuss the death penalty, what we are really talking about is the safety of the community. There are many ways to make the community safer, and most of these have costs associated with them. As legislators, you are keenly aware that there is no bottomless pot of government money to be spent on things that might help the community. The more you spend on one project, the less there is available for other worthwhile endeavors.

So, if it turns out that the death penalty amounts to a net expense to the state and the taxpayers, then it must be paid for at the expense of other projects. Or to put it another way, the extra money spent on the death penalty could be spent on other means of making the community safer: better lighting in crime areas, more police on the streets, perhaps longer periods of incarceration for some offenders, or on projects to reduce unemployment.

Secondly, the costs of the death penalty are central because they play the key role in how the death penalty is implemented. Supporters and opponents of the death penalty agree that a system of capital punishment should not take unnecessary risks with innocent lives and should be applied with a strict sense of fairness. In releasing its report on the death penalty in Illinois on Monday, Gov. Ryan's blue ribbon commission stressed that many of their recommendations for implementing the death penalty would require increased state expenditures.1 As with many things, the death penalty on the cheap is really no bargain. There is no abstract dollar figure for the cost of the death penalty -- it depends on what kind of death penalty you want.

COST STUDIES
I wish I could tell you exactly how much the death penalty costs in Nevada. But Nevada is like most states: they have not conducted a recent in-depth study of how much this government program is costing. It turns out to be a deceptively complex subject: it's like trying to put a dollar figure on heart disease -- it's easy to state the question, but complicated to answer. Nevertheless, there have been some studies by government agencies, by the media, and by independent researchers that create a clearer picture.

The studies differ widely in the states they cover, in their level of sophistication and in the assumptions they make. The surprising result, however, is that they have all come to the same conclusion, and their estimates of the costs are fairly close to each other. In fact, I am aware of no careful study that contradicts the conclusion that a death penalty system is considerably more expensive than a system in which life imprisonment is the most severe punishment.

COMMON PARAMETERS OF THE STUDIES
Before I discuss the actual estimates for the costs of the death penalty, I think it would be helpful to point out some commonalties in these studies. Typically, cost studies state their conclusions in terms of the net cost per execution. None of these studies focus on the costs of the actual execution, which represents a negligible amount compared to the costs of getting to that point. The cost per execution is merely a convenient way of expressing the total expense in a rate that is comparable from state to state.

Most of these studies do not simply look at the costs of an isolated case. Rather the best analysis compares a system in which the death penalty is employed to a system dealing with similar crimes in which a life sentence is the most severe punishment allowed. At every step of the analysis, the question is asked: how much more, or less, does the system with the death penalty cost compared to the other system?

There is no doubt that the death penalty costs more in all the steps leading up to an execution. Everything that is needed for an ordinary trial is needed for a death penalty case, only more so:

  • -more pre-trial time will be needed to prepare: cases typically take a year to come to trial
  • -more pre-trial motions will be filed and answered
  • -more experts will be hired
  • -probably two attorneys will be appointed for the defense, and a comparable team for the prosecution, compared to one in a non-death penalty case
  • -jurors will have to be individually quizzed on their views about the death penalty
  • -they are more likely to be sequestered
  • -two trials instead of one will be conducted: one for guilt and one for punishment
  • -the trial will be longer: the cost study at Duke University estimated that death penalty trials take 3 to 5 times longer than typical murder trials
  • -and then will come a series of appeals during which the inmates are held in the high security of death row.

It is only after an execution that the death penalty might actually cost less than a non-death penalty system. However, few cases result in execution, so the savings are relatively small.

The bulk of the costs of the death penalty come not from the cases that end in executions, but rather from the many cases which end shy of the death penalty being carried out. The death penalty is only imposed in a fraction of the cases in which it is sought. Death penalty cases may end in a plea bargain with a lesser sentence, they may end in a trial with a verdict of acquittal or of guilt to a lesser offense, or they may end with a life sentence even when death was an option. But because they began as death penalty cases, the meter of higher expense is running all the time.

Even more importantly, if the record for the past 25 years is any gauge, then very few of the death sentences that are handed down will ever be carried out. Roughly speaking, there have been about 7,000 death sentences since the death penalty was reinstated, and a little over 700 executions carried out.2 Nevada's experience is typical. Over 133 death sentences have been handed down, but only 9 executions have been carried out. That means that only about 10% of death sentences result in executions, but extra costs are incurred for all 100% of the cases.

The recent study by Professor James Liebman of Columbia Law School, whom I believe has already testified before this committee, found that over 2/3 of death penalty cases are overturned on appeal.3 And when these cases are retried, over 80% of the defendants receive a sentence of less than death. Only about 5% of the sentences resulted in executions. The excellent cost study conducted at Duke University similarly applied an execution rate of 10% in calculating the costs in North Carolina.4

What this means is that the cost of the death penalty is so high because it is an incredibly inefficient system. The only possible financial saving occurs after there is an execution. From that point on, the state does not have to pay the costs of housing and caring for the inmate, while in the non-death penalty jurisdiction, the costs continue as the life sentence is served.

But in over 90% of the cases, the states pays both ways: it pays the extra expense of seeking the death penalty, and then, because the death penalty is not carried out, it also pays the costs of life imprisonment. This explains why the death penalty, as a system, costs so much.

One final important point about the better cost studies: many of the costs of the death penalty do not appear as line items in the budget. It is not accurate to say that the time spent by the prosecution, by the judges, and even in some instances by the defense, could be calculated as no expense because, if these participants weren't doing death penalty cases, they would still have to be paid the same. This ignores what the studies call "opportunity costs." Time is money. If a prosecutor or judge works longer on a case because it is a death penalty case, then those hours are not available for other work. The same is true for the judge's staff, and even for the square feet of the courtroom used for the trial. If death penalty cases take more time, then that time difference is a net cost measured in the hours of all the participants.

HOW MUCH DOES THE DEATH PENALTY COST?
The major cost studies on the death penalty all indicate that it is much more expensive than a system where the most severe sentence is life in prison:

  • The most comprehensive study conducted in this country found that the death penalty costs North Carolina $2.16 million per execution over the costs of a non-death penalty system imposing a maximum sentence of imprisonment for life.5 As I mentioned earlier, these findings are sensitive to the number of executions the state carries out. However, the authors noted that even if the death penalty was 100% efficient, i.e., if every death sentence resulted in an execution, the extra costs to the taxpayers would still be $216,000 per execution.
  • Some years ago, the Miami Herald estimated that the costs of the death penalty in Florida were $3.2 million per execution, based on the rate of executions at that time.6 Florida's death penalty system has bogged down for a number of reasons, including a controversy over the electric chair. As a result, a more recent estimate of the costs in Florida by the Palm Beach Post found a much higher cost per execution: Florida spends $51 million a year above and beyond what it would cost to punish all first-degree murderers with life in prison without parole. Based on the 44 executions Florida had carried out from 1976 to 2000, that amounts to a cost of $24 million for each execution.7
  • In Texas, the Dallas Morning News concluded that a death penalty case costs 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.8
  • The Sacramento Bee found that death penalty costs California $90 million annually beyond the ordinary costs of the justice system - $78 million of that total is incurred at the trial level. Since California has averaged much less than one execution per year, the costs per execution are astronomical.9


A variety of other studies in New York, Kansas, Nebraska and on the federal level also found high expenses associated with the death penalty, though none of these calculated the costs throughout the whole process. In a report from the Judicial Conference of the United States on the costs of the federal death penalty, it was reported that defense costs were about 4 times higher in cases where death was sought than in comparable cases where death was not sought. Moreover, the prosecution costs in death cases were 67% higher than the defense costs, even before including the investigative costs of law enforcement agencies.10

A recent article in the Wall Street Journal noted that in states where counties are chiefly responsible for prosecuting capital cases, the expenses can put an extraordinary burden on local budgets, comparable to that caused by a natural disaster.11 Katherine Baicker at Dartmouth published a study concerning the "Budgetary Repercussions of Capital Convictions" and concluded that the capital cases have a "large negative shock" on county budgets, often requiring an increase in taxes. She estimated the extra expenses to be $1.6 billion over a 15-year period.12

The net effect of this burden on counties is a widely disparate and somewhat arbitrary use of the death penalty. "Rich" counties that can afford the high costs of the death penalty may seek this punishment often, while poorer counties may never seek it at all, settling for life sentences instead. In some areas, this geographical disparity can have racial effects, as well, depending on the geographical location of racial minorities within the state.

Even counties that do pursue capital cases have found that they have had to cut back on other services such as libraries, ambulances, or even patrol cars for the police. Some counties have approached the brink of bankruptcy because of one death penalty case that has to be done over a second or third time.13

Many of the costs of the death penalty are inescapable and are likely to increase in the near future, as the demands for a more reliable and fairer system are heard. The majority of the costs occur at the trial level, and cannot easily be streamlined or reduced. There was, however, one significant recommendation from the recent report of the Illinois Commission on Capital Punishment which will not cost more money. Instead, it could radically reduce the cost of the death penalty. The greatest waste and inefficiency of the death penalty occurs when cases are not done correctly during the "main event" -- the trial. And states and counties that tend to use the death penalty disproportionately more often than other places, tend to have the most errors -- and hence the most added costs.

The Illinois Commission recommended that Illinois reduce the number of qualifying crimes from the present 20 down to 5.14 This would focus the death penalty on the "worst of the worst" offenders, and in these kinds of cases, fewer mistakes are made. This not only saves the state money because the death penalty is sought less frequently -- it also eliminates from the system the borderline cases which are most likely to be overturned. With pressure off the courts, the prosecution, and the defense community because of a smaller caseload, cases can be completed with the utmost care, and not result in overturned convictions and sentences. I think this alternative deserves serious consideration.

Thank you for this opportunity. I would be happy to answer any questions the Committee may have.


ENDNOTES

1. Report of the Governor's Commission on Capital Punishment (Illinois, released April 15, 2002).
2. See "Capital Punishment 2000," Bureau of Justice Statistics (Dec. 2001), at p.15.
3. James S. Liebman, "A Broken System: Error Rates in Capital Cases," (Columbia Univ. June, 2000) (Executive Summary).
4. P. Cook, "The Costs of Processing Murder Cases in North Carolina," Duke University (May 1993), at p.98.
5. P. Cook, "The Costs of Processing Murder Cases in North Carolina," Duke University (May 1993).
6. D. Von Drehle, "Bottom Line: Life in Prison One-sixth as Expensive," The Miami Herald, July 10, 1988, at 12A.
7. S. V. Date, "The High Price of Killing Killers," Palm Beach Post, Jan. 4, 2000, at 1A.
8. C. Hoppe, "Executions Cost Texas Millions," Dallas Morning News, March 8, 1992, at 1A.
9. S. Maganini, "Closing Death Row Would Save State $90 Million a Year," Sacramento Bee, March 28, 1988, at 1.
10. See, "Federal Death Penalty Cases: Recommendations Concerning the Cost and Quality of Defense Representation," Judicial Conference of the United States (May 1998).
11. R. Gold, "Counties Struggle with High Cost of Prosecuting Death-Penalty Cases," Wall St. Journal, Jan. 9, 2002.
12. K. Baicker, "The Budgetary Repercussions of Capital Convictions," National Bureau of Economic Research, Working Paper 8382, July 2001.
13. See generally, R. Dieter, "Millions Misspent: What Politicians Don't Say About the High Costs of the Death Penalty," (revised edit., 1994) (available from the Death Penalty Information Center).
14. Report of the Governor's Commission on Capital Punishment (Illinois, released April 15, 2002), Preamble.


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