NEW RESOURCES: Final Report on the Death Penalty to the Washington State Bar Association

The Death Penalty Subcommittee of the Committee on Public Defense of the Washington State Bar has prepared a report on the state's death penalty that will be submitted to the Bar Association's Board of Governors in early 2007.  The Subcommittee was formed to examine the costs of the state's death penalty and to recommend whether the death penalty should be continued, given the expenses and the state's experience in carrying out death sentences.  The Death Penalty Subcommittee was made up of supporters and opponents of the death penalty, all with extensive experience with the criminal justice system.

The report noted that since the death penalty was reinstated in Washington in 1981, there have been 254 death eligible cases.  Of these, death notices were filed by the prosecution in 79 cases (31.1%).  Death sentences were imposed in 30 cases, or 11.8% of the death eligible cases.  Twenty-three cases have completed appellate review, and 4 inmates have been executed.  Three of the four inmates executed waived part of their appeals, thereby hastening their executions.  The other 19 cases were reversed, almost all resulting in a sentence of life without parole.

With respect to the costs of the death penalty, the report concluded:

  • At the trial level, death penalty cases are estimated to generate roughly $470,000 inadditional costs to the prosecution and defense over the cost of trying the same case as an aggravated murder without the death penalty and costs of $47,000 to $70,000 for court personnel.
  • On direct appeal, the cost of appellate defense averages $100,000 more in death penalty cases, than in non-death penalty murder cases.
  • Personal restraint petitions filed in death penalty cases on average cost an additional$137,000 in public defense costs.

The Subcommittee offered a series of recommendations regarding the state's death penalty, but declined to state a recommendation on whether it should be continued:

1. The State should provide full funding for all costs of prosecution and defense of
aggravated murder cases. State funding should include programs and policies to
assure high quality representation. The State should investigate the best model for
delivery of effective and efficient representation, including the possibility of a
statewide public defender agency for aggravated murder cases.
2. The defense team in a death penalty case should include, at a minimum, the two
attorneys appointed pursuant to SPRC 2, a mitigation specialist and an
investigator. Psychiatrists, psychologists and other experts and support personnel
should be added as needed.
3. The funding agreement or budget for a public defender agency should provide for
caseload adjustment when a lawyer is appointed to a death penalty case, so that the
attorney may be able to devote the time and attention necessary to provide
competent defense in the death penalty case. The caseload adjustment may
involve hiring additional lawyers by the agency or a reduction in cases assigned to
the agency.
4. Flat fees, caps on compensation and lump-sum contracts for trial attorneys are
improper in death penalty cases.
5. Private practice attorneys appointed in death penalty cases should be fully
compensated for actual time and service performed at a reasonable hourly rate
with no distinction between rates for services performed in court and out of court.
Periodic billing and payment should be available.
6. The Subcommittee’s study has been limited in scope, and there are additional
topics concerning the death penalty which could be addressed in a comprehensive
study; therefore, the Subcommittee recommends that a separate task force created
by the Legislature should be dedicated to a multi-disciplinary examination of the
death penalty.
7. The Administrative Office of the Courts should provide capital case training and
resources for judges, the capital trial desk book should be kept current, and a
judicial mentorship program in capital cases should be established.
8. The Subcommittee recommends that the Washington Supreme Court authorize the
Capital Counsel Committee to create and maintain two lists of attorneys qualified
to represent a capital defendant in the trial court. The first list should include those
individuals who have demonstrated their qualifications, as defined in SPRC 2, to
serve as “first chair” in a capital case. The second list should include those
individuals who have not yet satisfied the requirements to serve as “first chair,”
but who are qualified to serve as “second chair” and who are interested in gaining
the experience necessary to be placed on the “first chair” list. Trial courts may,
but need not, appoint an attorney from the “second chair” list.
In addition, the Subcommittee recommends that the Washington Supreme Court
direct that the Capital Counsel Committee, when conducting its initial and its
yearly review of applicants, solicit information from judges before whom the
applicant has practiced, opposing counsel, co-counsel, peers and supervisors. The
sub-committee recommends that the Washington Supreme Court direct that the
Capital Counsel Committee pay particular attention to any declarations,
allegations, or judicial findings of ineffective assistance of counsel.
9. The Death Penalty Subcommittee recognizes that no single statewide rate can
account for the various factors that should be taken into consideration to determine
compensation for lead counsel in a death penalty case at trial level. The hourly rate
established for lead counsel in a particular case should be based on the
circumstances of the case and the attorney being appointed, including the
following factors: the anticipated time and labor required in the case, the
complexity of the case, the skill and experience required to provide adequate legal
representation, the attorney's overhead expenses and the exclusion of other work
by the attorney during the case. The subcommittee finds that the federal rate of
$163.00 (in 2006 dollars) is a reasonable rate of compensation for private lawyers
appointed as lead defense counsel in death penalty cases. The subcommittee
recommends that under no circumstance should the hourly rate for lead counsel
appointed in a death penalty case be less than $125.00 per hour (in 2006 dollars).

(FINAL REPORT OF THE DEATH PENALTY SUBCOMMITTEE OF THE COMMITTEE ON PUBLIC DEFENSE, Washington State Bar Association, December 2006).  See Costs and Representation.

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NEW VOICES: Chief Judge of Federal Court Questions the Death Penalty

Chief Judge William Wilkins of the U.S. Court of Appeals for the 4th Circuit recently spoke about the death penalty to a gathering at the Charleston School of Law in South Carolina.  He commented that decision-makers will have to evaluate whether the punishment is worth its increasing financial costs.  But he also noted how difficult it is for a politician to speak openly about this issue: "I think politically, you're not going to find a candidate running on 'Let's do away with the death penalty,' " Wilkins said. "No one (in South Carolina) can be elected to statewide office who is opposed to the death penalty." 

Wilkins said other options should be explored that would save money and still preserve the imposition of justice.  One alternative he mentioned was ensuring life in prison for murderers but without the chance of parole. "Think about it, what would you prefer?" he asked the students: death or life confined in a cage?  He noted that the tens of millions of dollars spent on the death penalty could go to education or health care.  He described the imposition of the death penalty in the U.S. as "a hit or miss thing."

(Charleston Post & Courier, Sept. 15, 2006; Associated Press, Sept. 14, 2006).  See New Voices, Costs, and Life Without Parole.

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Costs and Geography Contribute to Death Penalty's Arbitrariness

The death penalty is rarely sought in the city of Baltimore, but in adjoining Baltimore County almost every eligible case becomes a capital case.  Presently, there are 7 active death-penalty cases in Baltimore County, more than the city of Baltimore has had overall in the past 2 decades.  In addition to the different philosophies of the respective State's Attorneys, the costs of the death penalty are a significant factor.  Prosecutors estimate that a death penalty case costs taxpayers $500,000, just for the trial and penalty phases.  Donald Giblin, one of Baltimore's prosecutors, noted: "I don't have a moral problem with the death penalty; I have a resource problem with it."

Baltimore State's Attorney Patricia Jessamy also noted that the years of appeals in a capital case leave the victims' family with constant uncertainty.  "Most of the time," she said, "the death penalty doesn't give you closure."  By taking the death penalty off the table in a prospective case, she says she can offer some degree of finality to the victims' family by utilizing the sentence of life without parole.

(Baltimore Sun, Sept. 3, 2006). 

See Costs, Arbitrariness, and Life witout parole.

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NEW VOICES: Newspaper Changes Its Position-'Commonsense Finding is that Death Penalty Has Failed and Should be Abolished'

An editorial in the Asbury Park Press, a newspaper that formerly supported capital punishment, called on New Jersey policymakers to abandon the state's costly death penalty and replace it with the "sure and swift" sentence of life without parole. Stating that New Jersey has wasted millions of dollars on the death penalty, but has not carried out an execution since it was reinstated in1982, the editorial noted:

Can it really be 22 years since Robert O. Marshall cowardly hired hit men to shoot and kill his wife and the mother of his three children for insurance money? So he could continue an extramarital affair and carry on with his country club life? Sadly, it has been that long for the 66-year-old former Toms River insurance salesman.

Marshall was on death row for two decades before a court found his representation during the death penalty phase of his trial was lacking. The court overturned the death penalty and the U.S. Supreme Court declined to hear an appeal of that decision, leaving it up to the Ocean County Prosecutor's Office to decide whether to seek the death penalty again.

Ocean County Prosecutor Thomas F. Kelaher said Friday his office struggled with the decision, but ultimately decided not to ask another jury to sentence Marshall to death because of the difficulty in mounting a case so long after the crime was committed and the likelihood that more appeals would take years to resolve at great public expense.

"This troublesome and distressing conclusion was made only after extensive consultation with the family of the victim, Maria Marshall," Kelaher said.

In March, we reluctantly called for another death penalty trial, with concern about the issues raised by Kelaher and the hope that Marshall would never be paroled. However, we understand the prosecutor's reasoning that going through another round of legal proceedings that would cost more millions over a decade or more is problematic. And we urge him in the strongest terms to follow through with his pledge to oppose parole of Marshall forever. He could be released in 2014.

Which again brings us to the issue of New Jersey's death penalty. Since its reinstitution in 1982, no cold-blooded murderer has been executed. Nearly 50 death sentences have been overturned by higher courts. For now, a yearlong moratorium on executions is in effect while a study commission looks at how New Jersey enforces its death penalty statute.

The commission should file its report now with the common-sense finding that New Jersey's death penalty is a failure and should be abolished in favor of life in prison without parole.

To be effective, justice must be sure and swift. New Jersey's death penalty statute is neither. It is such a drain on resources as to be counterproductive.

Think of the millions of taxpayer dollars wasted on scum like Marshall. Multiply that by 50 or more. Life without chance of parole. That's a sentence whose execution can be sure and swift.

(Asbury Park Press, May 16, 2006) (emphasis added). See Editorials, Costs, and Life Without Parole.

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NEW VOICES: California Chief Justice Calls Death Penalty "Dysfunctional"

Ronald George (pictured), Chief Justice of the California Supreme Court, recently called the state's death penalty "dysfunctional" and criticized state lawmakers for their unwillingness to adequately fund the state's capital punishment system. The Justice noted that this refusal has been "a disservice to the administration of justice."  George added, "I think that there are many, many things in the eyes of legislators that have greater priority. That's the problem. People want to have the death penalty, but they don't want to pay everything it costs to have it implemented in a judicious manner. . . . The system is very dysfunctional."

George, a Republican who was appointed to the court by Governor Pete Wilson, said that the California Supreme Court needs several new staff attorneys to process capital cases, and he also stated that lawmakers need to increase hourly payments to lawyers handling death penalty appeals in order to keep inmates from waiting years before counsel is appointed. Approximately 25% of those on California's death row do not have a publicly appointed lawyer to challenge their conviction and sentence. Since California reinstated the death penalty in 1978, 13 people have been put to death. Four times as many people on death row have died of natural causes, suicide, or murder.

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Death Penalty in California is Very Costly

According to the California Department of Corrections and Rehabilitation, housing an inmate in California's corrections system costs an average of $34,150 per year, though that figure is higher for those on death row or serving a sentence of life-without-parole. In capital cases, a more expensive investigation and prosecution process, as well as long and complicated appeals, raises the costs significantly. Only about 1% of homicides in the state are tried as capital cases, but those cases cost taxpayers two to three times more than non-capital cases. Critics of the death penalty argue that the money spent on death sentences would be better spent on police, mental health and child abuse prevention than on executions. "To spend so many millions of dollars on such a small number of capital trials really doesn't make much sense," said Lance Lindsey of Death Penalty Focus.

The News-Sentinel's investigation revealed the following facts and figures for California:

$7.4 billion: 2006-07 budget for the California Corrections Department.
$250 million: Average cost of 11 executions in 27 years.
$114 million: Costs of death penalty to taxpayers (annual).
$34,150: Average annual cost of housing an inmate in state prison.
9,000: Average number of pages of court transcripts in capital cases.
645: Inmates on death row.
$200: Cost of lethal injection chemicals.
49: Average age at time of execution.
33: Death Row inmates who died of natural causes.
17.5: Average time spent on Death Row.
13: Inmates executed in California since 1978.

(Lodi News-Sentinel, March 11, 2006).  See Costs and Life Without Parole.

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New Jersey Lawmakers Vote to Suspend Executions As Death Penalty Study Proceeds

New Jersey lawmakers have voted to suspend executions in the state while a task force studies the fairness and costs of imposing capital punishment. After passing the Senate in December and the Assembly on January 9 by a vote of 55-21, the measure now goes to Governor Richard Codey for his signature into law. Codey has indicated that he will sign the bill, an act that will make New Jersey the first state to pass a death penalty moratorium into law through legislation.

The bill establishes a 13-member study commission that will have until November 2006 to report on whether the death penalty is fairly imposed and whether alternatives such as life without parole would ensure public safety and meet the needs of victims families. According to the bill, executions would be halted while the study is underway.

"This is an issue we should have confronted a long time ago. The injustice of the current system and the steep price tag of it as well means we ought to take a look at it," said Assembly leader Joseph Roberts. Senator Diane Allen added, "In New Jersey, there has been a sea change in how people view the death penalty. ... We've looked at the cost, which is enormously more for someone on death row than for a person who's imprisoned for life without parole."

There are 10 people on New Jersey's death row. The last execution in the state took place in 1963.

(Associated Press, January 9, 2006) See Recent Legislative Activity, Costs, and Innocence.

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