NEW RESOURCES: Costs of Representation in Federal Death Penalty Cases

A recent report to the Committee on Defender Services of the Judicial Conference of the United States by Jon Gould and Lisa Greenman provided an update on the costs of representation in federal death penalty cases.  The report examined all cases in which the federal death penalty was authorized by the U.S. Attorney General between 1998 and 2004.  The authors found that "The median cost of a case in which the Attorney General authorized seeking the death penalty was nearly eight times greater than the cost of a case that was eligible for capital prosecution but in which the death penalty was not authorized."  (emphasis added). The report found that the median cost for defense representation in a death case that went to trial was $465,602, including $101,592 for experts.  If the authorized case was settled by a plea, the median cost was $200,933, still far greater than the median cost of a death-eligible case in which the death penalty was not sought-- $44,809.  In other words, it is the seeking of the death penalty that considerably raises the costs, even if the case results in a plea bargain and no trial.  These figures do not include prosecution and judicial costs .

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Lack of Qualified Attorneys in California Delays Death Penalty Cases

A shortage of qualified criminal defense lawyers in California has caused major delays in the state’s capital punishment system.  Nearly half of those sentenced to death in California are waiting for the state to appoint them a post-conviction attorney.  Death row inmates wait an average of 10-12 years.  The long delay is attributed to the lack of experienced lawyers to take on this part of the appeals process.  The California Supreme Court requires that lawyers have experience in trial and appellate court. Criminal defense attorneys also attribute the scarcity to inadequate state funding.  University of California at Berkeley law professor Elisabeth Semel said that an investigation for post-conviction cases can cost about $250,000, which includes expenses related to expert witnesses and travel.  The current state budget for an investigation is $50,000 for an inmate.  Some experts believe that the shortage of defense lawyers will only be met when the state expands resources like the Habeas Corpus Resource Center, where lawyers have access to paid investigators and paralegals. California has the largest death row population in the country, with more than 700 inmates.

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EDITORIALS: Illinois--"Outlaw Death Penalty to Save Lives and Cash"

In a recent editorial, the Chicago Sun-Times supported the abolition of the death penalty in Illinois during the current legislative session.  The paper noted its past support for capital punishment:  "In the past, we've supported the death penalty as long as the legal system gives the accused a fair trial that results in a verdict of guilt beyond resonable doubt.  Sadly, in light of experiences in recent years, that goal seems unrealistic."  Among the reasons for favoring abolition, the paper wrote that, "The death penalty is arbitrary - handed down in some cases but not in others with similar facts.  Even with the best safeguards in place, it's unreliable, with irreversible consequences.  And it's costly," consuming $100 million in the past 7 years.  As an alternative, the editorial noted that, "Like the death penalty, life without parole keeps heinous criminals off our streets, deters serious offenses and gives victims a sense that justice has been served."  Read full editorial below.

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STUDIES: Illinois Commission Questions Use of Millions for Death Penalty Prosecutions

The Illinois Capital Reform Study Committee, created by the state legislature in 2003 and headed by Thomas P. Sullivan, a former U.S. Attorney, recently issued its sixth and final report on the Illinois death penalty.  The report found that taxpayers are spending tens of millions of dollars on the prosecution of a large number of death-penalty cases, even though relatively few result in actual death sentences.  Since 2003, 18 people have been sentenced to death, even though 500 defendants had capital charges brought against them. The report found that prosecutors seek the penalty as a bargaining ploy in pursuit of a lesser guilty plea and sentence.  Leigh B. Bienen, a senior lecturer at Northwestern University School of Law and a member of the study committee designed to help fix the state's system of capital punishment said, “It doesn’t look too fixed to me.”  Since 2000, she learned, $100 million in taxpayer money has been spent via the Capital Litigation Trust Fund. The money was meant to ensure defense counsel in capital cases, especially in places where public defender offices were inadequate for the task.  But the fund is also used by prosecutors to pay for their considerable nonsalary expenses, including those for investigators,

Counties get a virtually bankrupt state to pick up the tab and “to maintain a very expensive and dysfunctional system of capital punishment,” Mrs. Bienen wrote.  Scott Turow, the lawyer and author, who is a former member of the state's Commission on Capital Punishment, said, “I used to think that cost arguments were not worthwhile, because you can’t get to them without resolving the issue of whether the death penalty is actually deterrence.  But assuming it’s not a deterrent, ­ which the data suggest, ­ it’s worth asking how much we’re willing to pay just to appease a sense of public vengeance.”

In addition, $64 million has been spent on civil damage awards to men whose death row convictions were reversed.  Illinois has had a moratorium on all executions since 2000.  The legislature may consider a bill to abolish capital punishment in its current session.

(J. Warren, "Expose Hits Hard at Death Penalty System," Chicago News Cooperative, reported in the N.Y. Times, November 13, 2010).  See Costs and Studies.

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NEW FROM DPIC: Video Excerpts from the International Police Forum on the Death Penalty

On October 13, officials from the U.S. and Europe held what may have been the first ever international forum of law enforcement officers on the merits of the death penalty in reducing violent crime. The officers discussed whether capital punishment actually helps to keep citizens safe, assists healing for victims, and uses crime-fighting resources efficiently. The panelists, who included current and former police officers from the U.S. land Europe, addressed issues such as deterrence, closure to victims’ families, and costs as compared to alternative sentences.  The panel was held at the National Press Club in Washington, D.C. You can find resources regarding the forum and video clips of the presenters' remarks on DPIC's new webpage here.

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NEW VOICES: Police Forum --Is the Death Penalty Necessary?

On October 13, law enforcement officers from the U.S. and Europe held the first public discussion about whether the death penalty helps or hurts in keeping citizens safe, assists healing for victims, and uses crime-fighting resources efficiently.  The panelists addressed issues such as deterrence, closure to victims’ families, and costs in relation to alternatives.  Former Detective Superintendent Bob Denmark of Lancashire Constabulary, England, who investigated over 100 homicides in the U.K., said, “Out of the 100 or more cases that I was personally involved in… in the vast majority of those, I do not think deterrence would have been an issue at all.” He continued, “If you were to use execution of killers as a deterrent, I think you would end up having to execute every killer in the hope that you might deter some potential killer in the future. I think the deterrence argument, while I do not dismiss it, is very, very weak.” Police Chief James Abbott of West Orange, New Jersey, the Republican appointee to the New Jersey Death Penalty Study Commission, talked of how his time with the study commission changed his mind about the death penalty. He said, “I ... know that in practice, [the death penalty] does more harm than good. So while I hang on to my theoretical views, as I’m sure many of you will, I stand before you to say that society is better off without capital punishment… Life in prison without parole in a maximum-security detention facility is a better alternative.”  The forum also included Ronald Hampton, Executive Director of National Black Police Association International Leadership Institute and a 23-year veteran of the D.C. Metropolitan Police Department, and António Cluny, Senior Attorney General and Public Prosecutor from Portugal.

("Fighting Crime in the U.S. and Internationally: Is the Death Penalty Necessary? A Unique Conversation Between U.S. and European Law Enforcement," National Press Club, Washington, DC, October 13, 2010).  See Costs, Deterrence and New Voices.

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COSTS: "Can California Confront Costs of the Death Penalty?"

A recent op-ed by Professor Gerald Uelmen of Santa Clara Law School in the Sacramento Bee highlighted major concerns about California’s death penalty, including its high costs and the difficulty in finding competent representation for death row inmates. Uelmen also noted that California has the broadest death penalty law in the country, which allows for more death-eligible offenses than other death penalty states. According to the op-ed, “Although death penalty laws are supposed to narrow the discretion of prosecutors and juries by requiring 'special circumstances' for a death sentence, in California there is nothing 'special' about special circumstances. Virtually every first-degree murder can be made into a death case if the prosecutor chooses.” California currently has the largest death row in the United States with more than 700 inmates, more than 40% of whom are still awaiting for the appointment of a lawyer to handle constitutionally-mandated appeals. Meanwhile, the state has cut the budget of the Public Defender’s Office, limited the role of the California Habeas Corpus Resource Center, and failed to appropriate funds needed to appoint private lawyers.  California is also planning to build a new $400 million death row prison that will house inmates at three times the cost of holding those with life without parole sentences. Prof. Uelmen was also Executive Director of the California Commission on the Fair Administration of Justice that carefully examined the state's death penalty.  Read full op-ed below.

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Police Chiefs Fear Budget Cuts May Lead to Crime Increase

Police chiefs from around the country are expressing fears that crime rates will increase as law enforcement resources are cut during the economic downturn. In Sacramento, California, homicides are up 43% and assaults on police officers are up 13%, while the department was forced to eliminate its vice unit.  In Phoenix, Arizona, a lack of funds is causing police vacancies to go unfilled.  Similar concerns were expressed by police chiefs in Maryland and Virginia.  Chuck Wexler, Executive Director of the Police Executive Research Forum, said, "For the longest time, people thought that the police didn't matter, didn't affect the crime rate. Now we've seen that's not true." The Research Forum said that law enforcement agencies experienced an average cut of 7% this year.  In the past, improved policing led to dramatic drops in homicides in such places as New York City and Washington, D.C.  Now those gains are in jeopardy.  Budget reductions in Sacramento forced the city to cut important government programs and services, such as mental health services and job training programs for inmates being released from prison. Support groups like Alcoholics Anonymous and Narcotics Anonymous are also in decline. 

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NEW VOICES: Washington Attorney General Says Death Penalty May Not Be Worth the Costs and Delays

Washington Attorney General Rob McKenna recently said he is not sure the death penalty is the way to handle the worst crimes in his state. "I could live without it frankly. I think it's very expensive, and the delays are inordinate, delaying closure for the victims' families," he said.  McKenna said he uses the death penalty sparingly in Washington, reserving it for the most serious aggravated-murder convictions.  He said he would continue to uphold the law, if the people still desired it: "I support it as long as that's what the people of this state want." Although the death penalty is rarely used in Washington, the state is scheduled to carry out its first execution since 2001 on September 10. If the execution proceeds, Cal Brown, who has been on death row for 16 years, would be the fifth person executed since 1976.

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Pennsylvania's Costly Death Penalty Produces Nothing in Return

Pennsylvania Governor Edward Rendell has signed 113 execution warrants during his two terms in office, yet it appears likely that he will leave office in a few months without seeing any of them carried out. Since the state reinstated the death penalty in 1978, only three men have been executed, all of whom had waived their appeals. Inadequate funding for criminal defense may be one of the primary reasons for this de facto moratorium. Since 1978, state and federal courts have overturned 124 death penalty cases on post-conviction review, mostly because of inadequate representation. (Other reasons cited include prosecutorial misconduct, racial discrimination in jury selection, and improper argument and jury instructions).  When the cases are retried, almost all result in a life sentence.  Robert Dunham, a federal defender, said, “So long as Pennsylvania systematically fails to adequately provide resources at trial, cases will be reversed [in] post-conviction."  Marc Bookman, founder of the Atlantic Center for Capital Representation in Philadelphia, said "an ungodly amount of money" has been spent on the death penalty in the state.  "[I]t's an incredible waste of money," he added.  "We're propping this thing up so that some of our leaders can claim to be tough on law and order."  Pennsylvania has the fourth largest death row in the country.

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