NEW VOICES: Senior Florida Judge Says Death Penalty Is Excessively Expensive and Not Needed

In a recent op-ed in the Gainesville Sun, Florida Judge Charles M. Harris (pictured) called the state’s capital punishment system “totally defective” and “far less satisfactory” than alternatives like life without parole. Judge Harris, who has been on the bench for over 20 years, argued that life without parole “has rendered death by execution redundant and the amount we spend on it wasted.” He continued, “[D]eath by execution is excessively expensive. Most people who support the death penalty believe it is more cost effective than life in prison. Perhaps at one time, when executions were swift and sure, this may have been the case. It is not now. Most people knowledgeable about the subject will agree that the delay now built into the system, more trial preparation, much longer time to get to trial, much longer jury selections and trials, much more complicated and far more frequent appeals, and continuous motions, have increased the cost of capital punishment so that it is now many times the cost of keeping a prisoner in prison for life… Proper legal representation of the accused, particularly those sentenced to death, is an essential element of due process.” Read full op-ed below.

Why Florida should abolish the death penalty
by Charles M. Harris

Wake up, Florida. We have been sold a pig in the poke. If what we got is not totally defective, it is redundant and far less satisfactory than a comparable product which is efficient and cost effective.

I am, of course, talking about the death penalty and why it should be abolished.

It should be acknowledged that we have two death sentences in Florida; death by execution and death by prison. Both accomplish the same purpose: the condemned will never leave prison alive. Further, it is far from certain which sentence will be carried out first.

This article is in opposition is to the death by execution alternative and is based on the law as it now is and will continue to be, and not on the law as it was in some bygone era when a death sentence was imposed within a reasonable time following the conviction. This article does not urge that we end the death penalty on either moral or religious grounds. Others can better speak to that. And although it is of great concern, and should concern all Floridians, this article does not urge the end the death penalty based on the fact that innocent people may be executed under out present system (we have had more people exonerated and released from our death row than any other state, 25.) That issue is beyond the scope of this article.

My opposition is based on more practical grounds: First, the death penalty is not needed since the legislature adopted the life in prison without parole alternative. This was a wise action taken by the legislature but it has rendered death by execution redundant and the amount we spend on it wasted. Second, death by execution is excessively expensive. Most people who support the death penalty believe it is more cost effective than life in prison. Perhaps at one time, when executions were swift and sure, this may have been the case. It is not now. Most people knowledgeable about the subject will agree that the delay now built into the system, more trial preparation, much longer time to get to trial, much longer jury selections and trials, much more complicated and far more frequent appeals, and continuous motions, have increased the cost of capital punishment so that it is now many times the cost of keeping a prisoner in prison for life.

One study have shown that it costs Florida $51 million per year more to support the death penalty than the costs of keeping our murderers in prison for life (Death Penalty Information Center). For example, it costs the state more than $10 million annually to fund the Capital Collateral lawyers who represent those who have been sentenced to death only after the sentence is entered, and this expense must be paid whether or not here is an execution.

The high cost of executions in California caused one of the sponsors who brought about reintroduction of the death penalty there and who is now leading the effort to end it to say: “Close your eyes for a moment. If there was a state program that was costing $185 million a year and only gave the money to lawyers and criminals, what would you do with it?” (New York Times, April 7, 2012).

Quite obviously, a large amount of the money spent on capital punishment goes for legal expenses. That should not be criticized. Proper legal representation of the accused, particularly those sentenced to death, is an essential element of due process. The only way to end the enormous expense is to end the unnecessary reason for it. The $51 million listed as the extra expense for the death penalty is the annual cost of retaining the death penalty apparatus whether or not we have any executions. If it costs that much just to be able to execute someone, what does each execution cost us? The Miami Herald published an article in 1988 stating that it cost $3.2 million to execute a condemned person but only $750,000 to house a prisoner in prison for life. Both of these figures, of course, have increased over the past twenty plus years as indicated by the study mentioned above.

We have averaged two executions per year over the past decade. If we take the $51 million we spend annually merely to be in a position to execute someone and divide it by the two executions we normally have each year, the cost would be about $25 million each.

What do we get for our money? If the death penalty is not a deterrent, and it is not, and if the death penalty does not make us safer, and it does not, then it is only high-cost revenge. There are those who look at Ted Bundy, Danny Rolling and Aileen Wuornus and say that at least they won’t kill again. It is unlikely that they would have killed again in any event while confined forever to their 12-by-7 foot cell, but more importantly to the issue of the death penalty being a deterrent is the fact that although Florida has had the death penalty for many generations, these serial killers murdered almost a score of our citizens before they were caught. They were not deterred by the threat of death.

Law enforcement officers, or at least the chiefs of police, seems to realize the futility of the death penalty or at least believe that the money spent on it can be better spent. A recent survey of police chiefs found that a lack of resources and drug/alcohol abuse tied for what most interferes with effective law enforcement. Of the nine categories, insufficient use of the death penalty was a distant last.

Why would anyone ignore the death penalty while considering killing someone? The answer is that the potential killer, for good reason, does not think the death penalty will apply to him. As Justice Brennan said in his Furman concurring opinion: “Proponents of this argument (that the death penalty is a deterrent) necessarily admit that its validity depends upon the existence of a system in which the punishment of death is inevitably and swiftly imposed. Our system, of course, satisfies neither condition. A rational person contemplating a murder…is confronted, not with the certainty of a speedy death, but with the slightest possibility that he will be executed in the distant future.”

In order to point out the applicability of Justice Brennan’s analysis as it applies to Florida, we have come to the third reason for ending the death penalty. It is unbelievably inefficient. Through 2009, Florida had sentenced 977 people to death but had executed only 68. (U.S. Department of Justice, Capital Punishment, 2009: Statistical Tables). That’s a 7 percent execution rate!

Two relevant articles recently appeared in local newspapers. One, the Orlando Sentinel, related a poll taken to determine the popularity of the death penalty. Sixty seven percent favored the death penalty. But the telling point, I believe, is the comment made by a reader who voted in favor of the death penalty: “He or she should be executed within the year.” Have any such polls asked how many would support the present capital punishment system after explaining to them exactly what the system is today?

The other article, the Daytona Beach News Journal, recounted the execution of David Gore who committed his murder in 1984. Quite clearly, the above referred to reader’s desire for swift punishment is far from reality. We now have 399 people on death row after the most recent execution. From David Sparre, received by the prison on April 2, 2012 through and including Pedro Hernandez-alberto, received on June 10, 2002, over a ten year period, 111 condemned individuals were placed on death row. That is 28 percent of the total population on death row, leaving 72 percent who have been there for over ten years. An additional 211 condemned individuals were received on death row through April 16, 1987, when Carlos Bello arrived, meaning that the remaining 77 individuals not included in the two previous numbers (or 19 percent) have been on death row for over twenty-five years. There are three individuals who have been on death row for over forty years. Do you see the inefficiency of the system and the randomness of those chosen to be executed as indicated by Justice Brennan?

With the aging population on death row, as pointed out by Dean Cannon over a year ago, more people have simply died in prison than have been executed since 2000 (30 have died, 25 have been executed). Has justice not been served on those who merely died whether they died as a result of death by prison or death by execution?

It is often said that the execution of the killer brings closure. What is meant by that? I have never read or heard of any victim’s family saying that the death of the murderer has closed the void left by the death of their loved one. The only thing that it has done is to close the ordeal, the episode. The long wait for justice is over. But the death of the murderer regardless of its manner closes the ordeal. And since 2000, death by prison has been the more normal method of closure.

Over the last ten years, we have added an average of 11 people per year to our death row. They would fit much better in the general population of a high security prison at much less cost than on death row with its ever increasing population.

Where are you, Tea Party? You stand for efficient government, get involved. Where are you, Governor, Scott? You want to make the state operate like a well-oiled business, do a cost/benefit analysis. How about a commission composed of prosecutors, public defenders, law professors, law enforcement officers and a few interested lay people to see if we can’t get the same benefit for far less money? Could we not spend the over half billion dollars that will be wasted on capital punishment over the next ten years for a better law enforcement purpose? Isn’t that what efficiency is all about? Isn’t that how a well-oiled business is run?

Charles M. Harris, is a graduate of the University of Florida College of Law. He served as a Circuit Court Judge for five years and an Appellate Judge for fourteen years. For the past several years, he has served as Senior Judge. He also served on the Governor’s Commission on Capital Cases until it was disbanded by the legislature.

(C. Harris, “Why Florida should abolish the death penalty,” Gainesville Sun, April 18, 2012). See Costs. Read more New Voices.