Costs

Lawyers Say Utah Is Underfunding Death-Penalty Appellate Defense

Utah is not providing sufficient funding to competently represent death-row prisoners during their appeals, according to a motion filed on behalf of Douglas Lovell, the man most recently sentenced to death in the state. Because of that, Lovell's lawyer Samuel Newton says, Lovell's death sentence should be vacated and he should be resentenced to life in prison. Newton bases his claim on a 2008 Utah Supreme Court opinion, Archuleta v. Galetka, in which the court warned that "low levels of public funding for capital cases" and "significantly diminishing numbers of qualified counsel able and willing to represent capital defendants" might force the court to overturn death sentences if it "impedes prompt, constitutionally sound resolution" of a capital case. Newton argues that a billing cap imposed by Weber County officials and threats and meddling by county officials are compromising his ability to zealously represent Lovell. Lovell has been granted an evidentiary hearing on his post-conviction claims — including whether The Church of Jesus Christ of Latter-day Saints interfered with the trial by limiting the testimony available from bishops who had worked with Lovell at the prison — and Newton estimates that the hundreds of hours required to investigate and prepare for the hearing would cost about $37,000. However, Weber County officials sent Newton an email accusing him of overbilling the county and meeting with his client too frequently, and threatening that, as a result, they may have to find other attorneys for future appeals. The county has capped his payment for the hearing at $15,000. "That's the bind," Newton said. "Do I represent my client zealously like I'm constitutionally required to do? Or do I tread lightly so I don't lose my livelihood?" Newton said that the financial strain of handling another death-penalty case has caused stress-related heart problems that led him to request to be removed from that case. Newton's motion is not the first time attorneys have expressed concerns about Utah's capital defense funding. In 2007, the Utah Association of Criminal Defense Lawyers filed an amicus brief in the case of Ralph Menzies. Affidavits submitted by well-known defense lawyers in connection with that brief reported that the final payments they received for handling death-penalty appeals had amounted to compensation at levels of $17 and $19 per hour — about one-tenth their normal billing rates. Defense attorney Richard Mauro said the pay rates make it almost impossible for private attorneys to take on capital appeals: "If you are doing the work the way it's supposed to be done — and trying to keep the lights on and run the copy machine — it's really not a feasible thing to do."

Former Governor Bill Richardson: Death Penalty Is Bad for Business, Out of Step With World's Views

In a Washington Post op-ed, former New Mexico Governor and United Nations Ambassador Bill Richardson (pictured)—who in 2009 signed a bill to abolish his state's death penalty—urged that capital punishment be abolished in the United States, saying "[t]he practice is wrong and I hope it isn’t long for this world." Richardson said he supported the death penalty for decades before "empirical evidence and common sense" convinced him that the practice should end. That evidence, he writes, included that that "the death penalty is an ineffective deterrent, is unfairly applied and has become increasingly costly for states." Richardson now serves as a commissioner on the International Commission Against the Death Penalty, advocating the worldwide abolition of capital punishment. He explains how the use of the death penalty, especially lethal injection, hurts state business interests by putting them at odds with the views of pharmaceutical companies. Using Arkansas' April 2017 flurry of executions as an example, he writes, "In their effort to push through these executions, state officials needlessly hastened the application of an unjust policy while senselessly placing Arkansas at odds with the private sector." McKesson, a pharmaceutical distributor, sued the state of Arkansas for using "false pretense, trickery, and bad faith" to obtain execution drugs. He also points to a recent vote by the Delaware House of Representatives to reinstate the death penalty, saying, "As a state that has worked successfully for decades to build an international brand as America’s leading incorporation venue, a major source of its revenue, Delaware could lose if the globally disfavored death penalty once again becomes law." Richardson also ties his international experience to the issue, writing, "States that continue to employ the death penalty will remain isolated from the growing international consensus." "To effectively represent the interests of citizens, and protect our nation’s role as a global leader," he concludes, "a new generation of policymakers and politicians must put the death penalty to rest once and for all."

Review Commission Report: Oklahoma Death Penalty Cases Cost Triple That Of Non-Capital Cases

An independent study of the costs of seeking and imposing the death penalty in Oklahoma, prepared for the Oklahoma Death Penalty Review Commission, has concluded that seeking the death penalty in Oklahoma "incurs significantly more time, effort, and costs on average, as compared to when the death penalty is not sought in first degree murder cases." The report—prepared by Seattle University criminal justice professors Peter A. Collins and Matthew J. Hickman and law professor Robert C. Boruchowitz, with research support by Alexa D. O’Brien—found that, on average, Oklahoma capital cases cost 3.2 times more than non-capital cases. Reviewing 15 state studies of death penalty costs conducted between 2000 and 2016, the study found that, across the country, seeking the death penalty imposes an average of approximately $700,000 more in case-level costs than not seeking death. The researchers wrote that "all of these studies have found ... that seeking and imposing the death penalty is more expensive than not seeking it." The Oklahoma study reviewed 184 first-degree murder cases from Oklahoma and Tulsa counties in the years 2004-2010 and analyzed costs incurred at the pre-trial, trial, sentencing, and post-sentencing (appeals and incarceration) stages. Capital prosecutions, it found, cost the counties more than 1½ times the amount of incarceration costs than did non-capital trials because capital defendants spent an average of 324 more days in jail prior to and during death penalty trials. Prosecutors spent triple in pre-trial and trial costs on death penalty proceedings, while defense teams spent nearly 10 times more. Oklahoma capital appeal proceedings cost between five and six times more than non-capital appeals of first-degree murder convictions. Despite Oklahoma's ranking in the bottom 19 states in justice expenditures and what Oklahoma County District Attorney David Prater called “horrific issues with underfunding" of Oklahoma's indigent defense system, the study "conservatively estimated" that an Oklahoma capital case cost $110,000 more on average than a non-capital case. The researchers said their results were "consistent with all previous research on death penalty costs, which have found that in comparing similar cases, seeking and imposing the death penalty is more expensive than not seeking it." They concluded, "It is a simple fact that seeking the death penalty is more expensive. There is not one credible study, to our knowledge, that presents evidence to the contrary."

Louisiana Legislature Considers Bipartisan Measure to Abolish Death Penalty

Three Louisiana legislators, all of them former law enforcement officials, have proposed legislation to abolish the state's death penalty. Sen. Dan Claitor (R-Baton Rouge, pictured), a former New Orleans prosecutor who chairs the Senate Judiciary Committee, is the primary author of Senate Bill 142, which would eliminate the death penalty for offenses committed on or after August 1, 2017. The bill's counterpart in the House of Representatives, House Bill 101, is sponsored by Rep. Terry Landry (D-Lafayette), a former state police superintendent, with support from Rep. Steven Pylant (R-Winnsboro), a former sheriff. Both bills would replace the death penalty with a sentence of life without parole. In urging repeal, Sen. Claitor said he was "well aware of the need to create an environment that is hostile to violent crime and criminals. Yet," he said, "the death penalty has failed as deterrence to such horrendous criminal activity. Moreover, the death penalty is rarely utilized in Louisiana, and, when it is, the costs of appeals in these cases are extraordinarily burdensome to our law-abiding taxpayers.” Landry, who led the Louisiana State Police portion of the investigation that led to the murder conviction and death sentencing of Derrick Todd Lee, also expressed concerns about the cost and public safety value of the death penalty. "I've evolved to where I am today," he said. "I think it may be a process that is past its time." Louisiana's last execution was in 2010, but the Department of Corrections estimates that housing death row inmates costs $1.52 million per year, and the Louisiana Public Defender Board spends about 28% of its annual budget on capital cases, totaling about $9.5 million last fiscal year. That cost has also contributed to Louisiana's chronic underfunding of public defender services for non-capital cases across the state. The Catholic Church's opposition to the death penalty is also a factor in the heavily Catholic state. Sen. Claitor said his Catholic faith brought about a change of heart on the issue, and Sen. Fred Mills (R-Parks), said a statement of support for repeal, expected to be released by the Louisiana Catholic bishops, "would weigh heavy on me and on the vast majority of my constituents."

Maricopa County, Arizona DA Seeks Death Penalty So Often, The County Has Run Out of Capital Defense Lawyers

Maricopa County, Arizona County Attorney Bill Montgomery has sought the death penalty so frequently that the county has run up millions of dollars in defense costs and run out of defense lawyers qualified to handle new capitally-charged cases. The Arizona Republic reports that, with 65 active death-penalty cases and more new capital cases charged than the 35 that have been resolved since July 1, 2014, the county ran out of the specialized lawyers needed to defend the cases in January of this year. Yet despite the county's high rate of seeking the death penalty, the number of death sentences imposed in the county is falling. With 81 people on death row as of January 1, 2013, Maricopa County ranked fourth among all U.S. counties in the number of death-row prisoners. According to a 2016 Fair Punishment Project report, Maricopa County imposed 28 death sentences between 2010 and 2015, making it one of only 16 counties to have imposed as many as 10 death sentences over that period. However, only six of the cases resolved since July 1, 2014, have resulted in death sentences. In addition to burdening the county's defense services, the County Attorney's broad pursuit of the death penalty has placed a significant financial strain on the county. An audit commissioned by the Office of Public Defense Services, one of the agencies that provides representation for capital defendants, found that capital murder cases cost eight to 40 times more than first-degree murder cases in which the death penalty is not sought. The audit found that non-capital murder trials cost about $27,000 to defend, whereas capital cases—which require two defense attorneys, an investigator, and a mitigation specialist—cost from $213,000 to $1 million, depending on the outcome. Capital cases ending in a plea to a lesser offense or sentence cost about $213,000, the audit said; more than the cost of a non-capital case taken to trial. Death penalty trials resulting in life sentences cost $580,000, and those that ended with a death sentence cost $1 million, not including federal appeals. John Canby, an attorney for the Maricopa County Public Defender's Office, summarized the situation: “For a variety of reasons it appears that juries in Maricopa County are less willing to return death verdicts in trials for first-degree murder than they once were. Nevertheless, it seems that the County Attorney’s Office is still willing to seek death sentences in cases with only a remote possibility of a death verdict. That practice costs the taxpayers of Maricopa County a lot of money because the court is required to appoint capital-qualified attorneys to those cases, even if the possibility of a death sentence is in fact very remote." 

POLL: Nearly Two-Thirds in Utah Prefer Life-Sentencing Alternatives to the Death Penalty

According to a new poll, nearly two-thirds of Utah residents say they prefer some form of life sentence, rather than the death penalty, as the punishment for murder, and a majority support replacing the death penalty with a sentence of life without possibility of parole. The statewide poll of 784 Utah voters conducted by Public Policy Polling on January 13-15, 2017 and released on February 9 found that Utah residents preferred life-sentence alternatives over capital punishment by a margin of 35 percentage points. 47% said they preferred life in prison without parole, plus a requirement that the convicted person work in prison to pay restitution to the victims; 9% selected life in prison without parole; 8% chose life in prison with a possibility of parole after 40 years; and 29% preferred the death penalty. The preference for alternatives held true across political party, religion, age, gender, and race. The poll also found that a majority (53%) of Utahns said they would strongly or somewhat support a bill to replace the death penalty with life without parole, a measure estimated to save the state more than $1.6 million per case. 41% of respondents opposed the bill. “The death penalty is losing favor in our state because it wastes tax dollars, is ineffective in stopping violent crime, and risks possibly killing an innocent person, and none of those things align with our conservative principles,” said said Kevin Greene, Organizing Director of Utah Conservatives Concerned About the Death Penalty, a project of the Utah Justice Coalition. In 2016, a death penalty repeal bill sponsored by Republican Senator Steve Urquhart passed the Utah Senate and a House legislative committee, but was not considered by the full House before the legislative session ended.

New Study Finds Oregon Death Sentences Are Significantly More Costly Than Life Sentences

A new study by Lewis & Clark Law School and Seattle University that examined the costs of hundreds of aggravated murder and murder cases in Oregon has concluded that "maintaining the death penalty incurs a significant financial burden on Oregon taxpayers." The researchers found that the average trial and incarceration costs of an Oregon murder case that results in a death penalty are almost double those in a murder case that results in a sentence of life imprisonment or a term of years. Excluding state prison costs, the study found, cases that result in death sentences may be three to four times more expensive. The study found that 61 death sentences handed down in Oregon cost taxpayers an average of $2.3 million, including incarceration costs, while a comparison group of 313 aggravated murder cases cost an average of $1.4 million. Excluding state prison costs, the difference was even more stark: $1.1 million for death sentences vs. $315,159 for other cases. The study also found that death penalty costs were escalating over time, from $274,209 in the 1980s to $1,783,148 in the 2000s. (See chart. All costs are in 2016 dollars.) The study examined cost data from local jails, the Oregon Department of Corrections, the Office of Public Defense Services, and the Department of Justice, which provided information on appeals costs. Prosecution costs were not included because district attorney's office budgets were not broken down by time spent on each case. Among the reasons cited for the higher cost in death penalty cases were the requirement for appointment of death-qualified defense lawyers, more pre- and post-trial filings by both prosecutors and the defense, lengthier and more complicated jury selection practices, the two-phase death penalty trial, and more extensive appeals once a death sentence had been imposed. Professor Aliza Kaplan, one of the authors of the study, said, "The decision makers, those involved in the criminal justice system, everyone, deserves to know how much we are currently spending on the death penalty, so that when stakeholders, citizens and policy-makers make these decisions, they have as much information as possible to decide what is best for Oregon." Oregon has carried out just two executions since the death penalty was reinstated, both of inmates who waived their appeals. The state currently has a moratorium on executions.

EDITORIALS: California Newspapers Overwhelmingly Support Ballot Initiative to Abolish Death Penalty

Newspaper editorial boards in California are overwhelmingly supporting a November ballot initiative to abolish the state's death penalty and replace it with life without parole plus restitution, and are uniformly rejecting an opposing initiative that purports to speed up the appeals process. At least eight California newspapers have published editorials supporting Proposition 62 and opposing Proposition 66, and Ballotpedia reports that it is aware of no editorial boards that have supported Proposition 66. A Los Angeles Times editorial characterizes the death penalty as "both immoral and inhumane," adding, "[e]ven those who do not object to capital punishment on principle ought to support abolition because of the system’s inefficiency, exorbitant costs and long delays. Proponents of Proposition 66 say they can speed up the process and make the death penalty work, but there are serious doubts that their proposal would achieve the kind of fast-tracking they promise, and critics argue persuasively that the system might become even more expensive." The San Francisco Chronicle writes that "all sides agree [California's death penalty] has produced enormous legal bills, no semblance of deterrence to would-be murderers and too little justice to victims’ loved ones over the past four decades." It says Prop. 62 "offers a straightforward and certain solution," while criticizing Prop. 66 as "a highly complex, probably very expensive and constitutionally questionable scheme for streamlining the appeals process." Many of the editorials are particularly critical of Prop. 66's proposal to conscript appellate lawyers to represent death row inmates. The (Santa Rosa) Press Democrat's critique is representative: "Rather than funding an expansion of the state public defender’s office, which handles almost all death penalty appeals, Proposition 66 would require all attorneys who practice in California appellate courts, regardless of specialty and training, to accept judicial appointments to capital cases. Claims of inattentive and incompetent counsel already are common in death penalty appeals, and conscripting lawyers would only invite more such challenges." The Bakersfield Californian, which offered no opinion on Prop. 34, California's prior ballot initiative to abolish the death penalty, has also weighed in on the death penalty this year, calling for an end to the state's "costly, toothless death penalty." Other newspapers urging voters to vote yes on Prop. 62 and no on Prop. 66 included Monterey Herald, the Bay Area News Group (Mercury News and East Bay Times), and the Santa Clarita Valley Signal. [UPDATE: Additional editorial boards have come out in favor of Proposition 62 and against Proposition 66 (see below). To date, we are unaware of any editorial support for Proposition 66.]

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