Millions Misspent: What Politicians Don’t Say About the High Costs of the Death Penalty

Across the coun­try, police are being laid off, pris­on­ers are being released ear­ly, the courts are clogged, and crime con­tin­ues to rise. The eco­nom­ic reces­sion has caused cut­backs in the back­bone of the crim­i­nal jus­tice sys­tem. In Florida, the bud­get cri­sis result­ed in the ear­ly release of 3,000 pris­on­ers. In Texas, pris­on­ers are serv­ing only 20% of their time and rear­rests are com­mon. Georgia is lay­ing off 900 cor­rec­tion­al per­son­nel and New Jersey has had to dis­miss 500 police offi­cers. Yet these same states, and many oth­ers like them, are pour­ing mil­lions of dol­lars into the death penal­ty with no resul­tant reduc­tion in crime.

The exor­bi­tant costs of cap­i­tal pun­ish­ment are actu­al­ly mak­ing America less safe because bad­ly need­ed finan­cial and legal resources are being divert­ed from effec­tive crime fight­ing strate­gies. Before the Los Angeles riots, for exam­ple, California had lit­tle mon­ey for inno­va­tions like com­mu­ni­ty polic­ing, but was man­ag­ing to spend an extra $90 mil­lion per year on cap­i­tal pun­ish­ment. Texas, with over 300 peo­ple on death row, is spend­ing an esti­mat­ed $2.3 mil­lion per case, but its mur­der rate remains one of the high­est in the country.

The death penal­ty is escap­ing the deci­sive cost-ben­e­fit analy­sis to which every oth­er pro­gram is being put in times of aus­ter­i­ty. Rather than being posed as a sin­gle, but cost­ly, alter­na­tive in a spec­trum of approach­es to crime, the death penal­ty oper­ates at the extremes of polit­i­cal rhetoric. Candidates use the death penal­ty as a facile solu­tion to crime which allows them to dis­tin­guish them­selves by the tough­ness of their posi­tion rather than its effectiveness.

The death penal­ty is much more expen­sive than its clos­est alter­na­tive – life impris­on­ment with no parole. Capital tri­als are longer and more expen­sive at every step than oth­er mur­der tri­als. Pre-tri­al motions, expert wit­ness inves­ti­ga­tions, jury selec­tion, and the neces­si­ty for two tri­als – one on guilt and one on sen­tenc­ing – make cap­i­tal cas­es extreme­ly cost­ly, even before the appeals process begins. Guilty pleas are almost unheard of when the pun­ish­ment is death. In addi­tion, many of these tri­als result in a life sen­tence rather than the death penal­ty, so the state pays the cost of life impris­on­ment on top of the expensive trial.

The high price of the death penal­ty is often most keen­ly felt in those coun­ties respon­si­ble for both the pros­e­cu­tion and defense of cap­i­tal defen­dants. A sin­gle tri­al can mean near bank­rupt­cy, tax increas­es, and the lay­ing off of vital per­son­nel. Trials cost­ing a small coun­ty $100,000 from unbud­get­ed funds are com­mon and some offi­cials have even gone to jail in resisting payment.

Nevertheless, politi­cians from pros­e­cu­tors to pres­i­dents choose sym­bol over sub­stance in their sup­port of the death penal­ty. Campaign rhetoric becomes leg­isla­tive pol­i­cy with no analy­sis of whether the expense will pro­duce any good for the peo­ple. The death penal­ty, in short, has been giv­en a free ride. The expan­sion of the death penal­ty in America is on a col­li­sion course with a shrink­ing bud­get for crime pre­ven­tion. It is time for politi­cians and the pub­lic to give this cost­ly pun­ish­ment a hard look.

Report by Richard C. Dieter, Esq. Executive Director, Death Penalty Information Center October 1992 — Revised, Fall 1994

Over two-thirds of the states and the fed­er­al gov­ern­ment have installed an exor­bi­tant­ly expen­sive sys­tem of cap­i­tal pun­ish­ment which has been a fail­ure by any mea­sure of effec­tive­ness. Literally hun­dreds of mil­lions of dol­lars have already been spent on a response to crime which is cal­cu­lat­ed to be car­ried out on a few peo­ple each year and which has done noth­ing to stem the rise in violent crime.

For years, can­di­dates have been using the death penal­ty to por­tray them­selves as tough on crime. But when politi­cians offer vot­ers the death penal­ty as a solu­tion to vio­lence, the peo­ple actu­al­ly become worse off in their fight against crime. The pub­lic is left with few­er resources and lit­tle dis­cus­sion about proven crime pre­ven­tion pro­grams which could ben­e­fit their entire com­mu­ni­ty. In today’s depressed econ­o­my, the crim­i­nal jus­tice sys­tem is break­ing down for lack of funds while states pour more mon­ey into the black hole of cap­i­tal punishment expense.

Local gov­ern­ments often bear the brunt of cap­i­tal pun­ish­ment costs and are par­tic­u­lar­ly bur­dened. A sin­gle death penal­ty tri­al can exhaust a coun­ty’s resources. Politicians singing the prais­es of the death penal­ty rarely address the ques­tion of whether a gov­ern­men­t’s resources might be more effec­tive­ly put to use in oth­er meth­ods of fight­ing crime. A mil­lion dol­lars spent pur­su­ing the exe­cu­tion of one defen­dant could pro­vide far more effec­tive long-term crime reduc­tion: many addi­tion­al police offi­cers; speed­i­er tri­als; or drug reha­bil­i­ta­tion pro­grams. Instead, in today’s polit­i­cal atmos­phere, politi­cians wor­ry about appear­ing soft on crime, even if soft means espous­ing proven meth­ods of crime reduc­tion. Thus, there is lit­tle debate about whether the death penal­ty accom­plish­es any good at all.

Meanwhile, the death penal­ty is reach­ing a crit­i­cal stage in America. No longer iso­lat­ed in the South, the death penal­ty has become a nation­al phe­nom­e­non. There are more peo­ple on death row than at any time in the nation’s his­to­ry. The list of states actu­al­ly car­ry­ing out exe­cu­tions has grown to 20, with 4 new states added this year. The num­ber of exe­cu­tions in 1992 is like­ly to be the largest in 30 years and the costs of pur­su­ing the death penal­ty con­tin­ue to mount. At the same time, the United States has part­ed com­pa­ny from the oth­er demo­c­ra­t­ic coun­tries of the world which have large­ly aban­doned capital punishment.

In the 1990 elec­tions, politi­cians were par­tic­u­lar­ly bla­tant in their pro­mo­tion of the death penal­ty. It was advanced at all lev­els of the polit­i­cal process as an answer to crime and was used by lib­er­als and con­ser­v­a­tives alike. This year, the death penal­ty rhetoric, while not as bla­tant, con­tin­ues the cha­rade: vital crime fight­ing pro­grams are being cut while the high-priced death penal­ty goes unchecked.

Like the emper­or’s cow­er­ing sub­jects who praised his invis­i­ble robes, many politi­cians extol the death penal­ty as if it were a solu­tion to the prob­lem of crime. It is a cyn­i­cal manip­u­la­tion of the pub­lic’s legit­i­mate fear of the grow­ing tide of vio­lence: a sym­bol with­out sub­stance, a ​“solu­tion” for politi­cians who know that no cred­i­ble evi­dence exists link­ing the death penal­ty to a reduc­tion of murder.

This report will focus first on the role the death penal­ty plays in the eco­nom­ic cri­sis fac­ing states and local gov­ern­ments. As bud­gets every­where are being tight­ened, the death penal­ty looms as an exor­bi­tant and super­flu­ous ​“lux­u­ry item.” Some coun­ties have been pushed to the brink of bank­rupt­cy and have had to enact repeat­ed tax increas­es to fund these extreme­ly expen­sive cas­es. As mon­ey is spent on the death penal­ty, it is there­by less avail­able for the very pro­grams which are the back­bone of the effort to reduce crime in this country.

Secondly, the report will illus­trate how politi­cians have manip­u­lat­ed the death penal­ty issue and avoid­ed debate on the real caus­es of crime. Their approach has been typ­i­cal­ly marked by a sim­plis­tic rhetoric of revenge which ignores the inef­fec­tive­ness and costs of cap­i­tal pun­ish­ment. This super­fi­cial treat­ment comes pre­cise­ly at a time when the eco­nom­ic cri­sis in crim­i­nal jus­tice and crime pre­ven­tion demands that the death penal­ty be giv­en a harder look.

Death penal­ty cas­es are much more expen­sive than oth­er crim­i­nal cas­es and cost more than impris­on­ment for life with no pos­si­bil­i­ty of parole. In California, cap­i­tal tri­als are six times more cost­ly than oth­er mur­der tri­als. [1] A study in Kansas indi­cat­ed that a cap­i­tal tri­al costs $116,700 more than an ordi­nary mur­der trial.[2] Complex pre-tri­al motions, lengthy jury selec­tions, and expens­es for expert wit­ness­es are all like­ly to add to the costs in death penal­ty cas­es. The irre­versibil­i­ty of the death sen­tence requires courts to fol­low height­ened due process in the prepa­ra­tion and course of the tri­al. The sep­a­rate sen­tenc­ing phase of the tri­al can take even longer than the guilt or inno­cence phase of the tri­al. And defen­dants are much more like­ly to insist on a tri­al when they are fac­ing a pos­si­ble death sen­tence. After con­vic­tion, there are con­sti­tu­tion­al­ly man­dat­ed appeals which involve both pros­e­cu­tion and defense costs.

Most of these costs occur in every case for which cap­i­tal pun­ish­ment is sought, regard­less of the out­come. Thus, the true cost of the death penal­ty includes all the added expens­es of the ​“unsuc­cess­ful” tri­als in which the death penal­ty is sought but not achieved. Moreover, if a defen­dant is con­vict­ed but not giv­en the death sen­tence, the state will still incur the costs of life impris­on­ment, in addi­tion to the increased trial expenses.

For the states which employ the death penal­ty, this lux­u­ry comes at a high price. In Texas, a death penal­ty case costs tax­pay­ers 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. [3] In Florida, each exe­cu­tion is cost­ing the state $3.2 mil­lion. [4] In finan­cial­ly strapped California, one report esti­mat­ed that the state could save $90 mil­lion each year by abol­ish­ing cap­i­tal pun­ish­ment. [5] The New York Department of Correctional Services esti­mat­ed that imple­ment­ing the death penal­ty would cost the state about $118 mil­lion annually.[6]

The Recession and the Death Penalty

The effects of the present finan­cial cri­sis on the crim­i­nal jus­tice sys­tem vary wide­ly, but the com­mon thread has been cut­backs in crit­i­cal areas. In a report released in August of this year, the American Bar Association found that ​“the jus­tice sys­tem in many parts of the United States is on the verge of col­lapse due to inad­e­quate fund­ing and unbal­anced fund­ing.” The report went on to state that ​“the very notion of jus­tice in the United States is threat­ened by a lack of ade­quate resources to oper­ate the very sys­tem which has pro­tect­ed our rights for more than two centuries.”[7]

New Jersey, for exam­ple, laid off more than 500 police offi­cers in 1991.[8] At the same time, it was imple­ment­ing a death penal­ty which would cost an esti­mat­ed $16 mil­lion per year, [9] more than enough to hire the same num­ber of offi­cers at a salary of $30,000 per year.

In Florida, a mid-year bud­get cut of $45 mil­lion for the Department of Corrections forced the ear­ly release of 3,000 inmates. [10] Yet, by 1988 Florida had spent $57.2 mil­lion to accom­plish the exe­cu­tion of 18 peo­ple. [11] It costs six times more to exe­cute a per­son in Florida than to incar­cer­ate a pris­on­er for life with no parole. [12] In con­trast, Professors Richard Moran and Joseph Ellis esti­mat­ed that the mon­ey it would take to imple­ment the death penal­ty in New York for just five years would be enough to fund 250 addi­tion­al police offi­cers and build pris­ons for 6,000 inmates. [13]

Ten oth­er states also report­ed ear­ly release of pris­on­ers because of over­crowd­ing and under­fund­ing. [14] In Texas, the ear­ly release of pris­on­ers has meant that inmates are serv­ing only 20 per­cent of their sen­tences and re-arrests are com­mon. [15] On the oth­er hand, Texas spent an esti­mat­ed $183.2 mil­lion in just six years on the death penal­ty. [16]

Illinois built new pris­ons but does not have the funds to open them.[17] It does, how­ev­er, have the fourth largest death row in the coun­try. Georgia’s Department of Corrections lost over 900 posi­tions [18] in the past year while local coun­ties have had to raise tax­es to pay for death penalty trials.

Police offi­cers on the beat, impris­on­ment of offend­ers, and a func­tion­ing crim­i­nal jus­tice and cor­rec­tion­al sys­tem form the heart of the nation’s response to crime. Yet, in state after state, these pro­grams are suf­fer­ing dras­tic cuts while the death penal­ty absorbs time, mon­ey and political attention. 

The Cost to Local Governments

An increas­ing­ly sig­nif­i­cant con­se­quence of the death penal­ty in the United States is the crush­ing finan­cial bur­den it places on local gov­ern­ments. The cur­rent eco­nom­ic reces­sion has made it clear that there is no unlim­it­ed source of gov­ern­ment largesse. Counties, which bear the brunt of the costs of death penal­ty tri­als, are also the pri­ma­ry deliv­er­ers of local health and human ser­vices in the pub­lic sec­tor. [19] Hard choic­es have to be made among the demands of pro­vid­ing essen­tial ser­vices, cre­ative crime reduc­tion pro­grams such as com­mu­ni­ty polic­ing, and the vig­or­ous pur­suit of a few death penalty cases.

As Scott Harshbarger, Attorney General of Massachusetts, put it:

“Virtually every major pro­gram designed to address the under­ly­ing caus­es of vio­lence and to sup­port the poor, vul­ner­a­ble, pow­er­less vic­tims of crime is being cut even fur­ther to the bone.… In this con­text, the propo­si­tion that the death penal­ty is a need­ed addi­tion to our arse­nal of weapons lacks cred­i­bil­i­ty and is, as a sheer mat­ter of equi­ty, moral­ly irre­spon­si­ble. If this is real­ly the best we can do, then our pub­lic val­ue sys­tem is bank­rupt and we have tru­ly lost our way.” [20]

While state and nation­al politi­cians pro­mote the death penal­ty, the coun­ty gov­ern­ment is typ­i­cal­ly respon­si­ble for the costs of pros­e­cu­tion and the costs of the crim­i­nal tri­al. In some cas­es, the coun­ty is also respon­si­ble for the costs of defend­ing the indi­gent. Georgia, Alabama and Arkansas, for exam­ple, pro­vide lit­tle or no fund­ing for indi­gent defense from the state treasury.[21] In Lincoln County, Georgia, cit­i­zens have had to face repeat­ed tax increas­es just to fund one capital case.

Even where the state pro­vides some of the mon­ey for the coun­ties to pur­sue the death penal­ty, the bur­den on the coun­ty can be crush­ing. California, for exam­ple, was spend­ing $10 mil­lion a year reim­burs­ing coun­ties for expert wit­ness­es, inves­ti­ga­tors and oth­er death-penal­ty defense costs, plus $2 mil­lion more to help pay for the over­all cost of mur­der tri­als in small­er coun­ties. (Now, even that reim­burse­ment is being cut.) But many finan­cial­ly strapped small­er coun­ties still could not afford to pros­e­cute the com­pli­cat­ed death-penal­ty cas­es. Some small coun­ties have only one pros­e­cu­tor with lit­tle or no expe­ri­ence in death-penal­ty cas­es, no inves­ti­ga­tors, and only a sin­gle Superior Court judge. [22]

In Sierra County, California author­i­ties had to cut police ser­vices in 1988 to pick up the tab of pur­su­ing death penal­ty pros­e­cu­tions. The County’s District Attorney, James Reichle, com­plained, ​“If we did­n’t have to pay $500,000 a pop for Sacramento’s mur­ders, I’d have an inves­ti­ga­tor and the sher­iff would have a cou­ple of extra deputies and we could do some last­ing good for Sierra County law enforce­ment. The sewage sys­tem at the cour­t­house is fail­ing, a bridge col­lapsed, there’s no coun­ty library, no coun­ty park, and we have vol­un­teer fire and vol­un­teer search and res­cue.” The coun­ty’s audi­tor, Don Hemphill, said that if death penal­ty expens­es kept pil­ing up, the coun­ty would soon be broke. [23] Just recent­ly, Mr. Hemphill indi­cat­ed that anoth­er death penal­ty case would like­ly require the coun­ty to lay off 10 per­cent of its police and sher­iff force. [24]

In Imperial County, California, the coun­ty super­vi­sors refused to pay the bill for the defense of a man fac­ing the death penal­ty because the case would bank­rupt the coun­ty. The coun­ty bud­get offi­cer spent three days in jail for refus­ing to pay the bill. A judge review­ing the case took away the coun­ty’s right to seek the death penal­ty, thus cost­ing the coun­ty the par­tial reim­burse­ment which the state pro­vid­ed for cap­i­tal cas­es. The County took the chal­lenge all the way to the California Supreme Court and end­ed up cost­ing the County half a mil­lion dol­lars. [25] In the crim­i­nal tri­al, the defen­dant was acquitted.

A sim­i­lar inci­dent occurred recent­ly in Lincoln County, Georgia. The coun­ty com­mis­sion­ers also refused to pay the defense costs when the attor­ney won a new tri­al for a death row inmate Johnny Lee Jones. As in California, the com­mis­sion­ers were sent to jail. Walker Norman, chair of the County Commission explained: ​“We’re a rur­al coun­ty of 7,500 peo­ple with a small tax base. We had to raise tax­es once already for this case when it was orig­i­nal­ly tried, and now we are going to have to raise tax­es again. It’s not fair.” [26] The first tri­al alone cost the coun­ty $125,000.[27] The sec­ond tri­al was com­plet­ed in September and the defen­dant received a life sentence.

In Meriwether County, Georgia, a coun­ty of 21,000 res­i­dents and a $4 mil­lion annu­al bud­get, the pros­e­cu­tor sought the death penal­ty three times for Eddie Lee Spraggins, a men­tal­ly retard­ed man. The case cost the coun­ty $84,000, not includ­ing the defense attor­ney’s bill for appeal­ing, and the third con­vic­tion was again over­turned by the Georgia Supreme Court. [28] Spraggins was final­ly grant­ed a plea and received a life sentence.

In Mississippi, Kemper and Lauderdale Counties recent­ly con­duct­ed a bor­der sur­vey bat­tle to avoid respon­si­bil­i­ty for a cap­i­tal mur­der tri­al. Faced with a case that could cost the coun­ty $100,000, Kemper County want­ed to show that the scene of the mur­der was out­side their bor­der and con­duct­ed two sur­veys of the site. County Supervisor Mike Luke explained, ​“As much as we were talk­ing about the tax­pay­ers of Kemper County hav­ing to pay out, we believed we need­ed to be sure.” Luke said that the deci­sion to seek the death penal­ty was not his – he only had to come up with the mon­ey. Lauderdale County, where the tri­al was orig­i­nal­ly sched­uled, has now sent a bill to Kemper County for expens­es incurred while hold­ing the defen­dant in jail for 19 months. Kemper County is con­sid­er­ing how much it will have to raise tax­es just to pay the ini­tial costs of the prosecution.[29]

In Yazoo City, Mississippi, the town is wor­ried that it, too, might get stuck with an expen­sive death penal­ty case. ​“A cap­i­tal mur­der tri­al is the worst finan­cial night­mare any gov­ern­ment body could envi­sion,” said the edi­tor of the local paper. [30]

With more death row inmates and more exe­cu­tions than any oth­er state, Texas is also expe­ri­enc­ing the high costs of exe­cu­tions. Norman Kinne, Dallas County District Attorney, expressed his frus­tra­tion at the expense:

“[E]ven though I’m a firm believ­er in the death penal­ty, I also under­stand what the cost is. If you can be sat­is­fied with putting a per­son in the pen­i­ten­tiary for the rest of his life … I think maybe we have to be sat­is­fied with that as opposed to spend­ing $1 mil­lion to try and get them exe­cut­ed.… I think we could use (the mon­ey) bet­ter for addi­tion­al pen­i­ten­tiary space, reha­bil­i­ta­tion efforts, drug reha­bil­i­ta­tion, edu­ca­tion, (and) espe­cial­ly devote a lot of atten­tion to juve­niles.” [31]

Vincent Perini of the Texas Bar Association, calls the death penal­ty a ​“lux­u­ry”:

“There’s some things that a mod­ern American city and state have got to have. You have to have police and fire and pub­lic safe­ty pro­tec­tion. You have to have a crim­i­nal jus­tice sys­tem. You do not have to have a death penal­ty. The death penal­ty in crim­i­nal jus­tice is kind of a lux­u­ry item. It’s an add-on; it’s an option­al item when you buy your crim­i­nal jus­tice vehi­cle.” [32]

Chief Criminal Judge, James Ellis, came to a sim­i­lar con­clu­sion in Oregon: ​“Whether you’re for it or against it, I think the fact is that Oregon sim­ply can’t afford it.” [33] James Exum, Chief Justice of the North Carolina Supreme Court, agrees: ​“I think those of us involved in pros­e­cut­ing these (death penal­ty) cas­es have this uneasy notion that . . . these cas­es are very time-con­sum­ing and very trou­ble­some and take a lot of resources that might be bet­ter spent on oth­er kinds of crimes… .”

Efforts are under way in both Congress and the Supreme Court to reduce the avenues of appeal avail­able to death row inmates. But most of the costs asso­ci­at­ed with the death penal­ty occur at the tri­al lev­el. [34] Whatever effect cut­ting back on the writ of habeas cor­pus may have on the time from tri­al to exe­cu­tion, it is not clear that the changes will make the death penal­ty any less expen­sive, and they may result in the exe­cu­tion of inno­cent peo­ple. With the num­ber of peo­ple on death row grow­ing each year, the over­all costs of the death penal­ty are like­ly to increase.

Some state appeals courts are over­whelmed with death penal­ty cas­es. The California Supreme Court, for exam­ple, spends more than half its time review­ing death cas­es. [35] The Florida Supreme Court also spends about half its time on death penal­ty cas­es. [36] Many gov­er­nors spend a sig­nif­i­cant per­cent­age of their time review­ing clemen­cy peti­tions and more will face this task as exe­cu­tions spread. As John Dixon, Chief Justice (Retired) of the Louisiana Supreme Court, said: ​“The peo­ple have a con­sti­tu­tion­al right to the death penal­ty and we’ll do our best to make it work ratio­nal­ly. But you can see what it’s doing. Capital pun­ish­ment is destroy­ing the sys­tem.” [37]

Alternatives for Reducing Crime

New York does not have the death penal­ty. In the ear­ly 1980s, the N.Y. State Defenders Association con­duct­ed a study to esti­mate how much the death penal­ty would cost if it were to be imple­ment­ed in New York. The esti­mates were that each case would cost the state $1.8 mil­lion, just for the tri­al and the first stages of appeal. [38] The major­i­ty of those costs would be borne by the local gov­ern­ments. New Yorkers have con­sis­tent­ly re-elect­ed a gov­er­nor whom they know will veto any death penal­ty leg­is­la­tion which comes across his desk. Now it appears that New York may be reap­ing the ben­e­fit of that choice.

Significantly, no city in New York State, with­out the death penal­ty, is among the nation’s top twen­ty-five cities in homi­cide rates accord­ing to sta­tis­tics recent­ly released by the FBI. [39] In par­tic­u­lar, New York City bucked the nation­al trend and expe­ri­enced a decline in every major cat­e­go­ry of crime last year. [40] In the first four months of 1992 crime is again down across the board in New York, com­pared to the same peri­od two years ago, with mur­ders decreas­ing by over 11 per­cent. [41]

While direct caus­es for a decrease in crime are dif­fi­cult to pin­point, many experts have attrib­uted New York’s suc­cess to an increas­ing­ly pop­u­lar con­cept known as com­mu­ni­ty polic­ing. Two years ago, New York had 750 foot offi­cers on the street. Today that num­ber is 3,000. [42] Community polic­ing is a strat­e­gy for uti­liz­ing police offi­cers not just as peo­ple who react to crime, but also as peo­ple who solve prob­lems by becom­ing an inte­gral part of the neigh­bor­hoods they serve.

Such pro­grams do not come cheap­ly, but they do seem to be effec­tive. In Prince George’s County, Maryland, police Capt. Terry Evans said their com­mu­ni­ty polic­ing pro­gram is ​“the only thing I’ve seen in 23 years of law enforce­ment that’s had an impact, actu­al­ly turned it around.”[43] Fully imple­ment­ed, Prince George’s com­mu­ni­ty polic­ing pro­gram will cost the coun­ty $10 mil­lion per year.

The pro­grams appar­ent­ly work best where gov­ern­ments can afford to add offi­cers, rather than tak­ing from exist­ing num­bers, leav­ing oth­er work unat­tend­ed. This is borne out in cities like Boston where mur­ders dropped 23 per­cent in 1991, part­ly because of a pro­gram that put more police offi­cers on the beat.[44] The need for more police offi­cers is sup­port­ed by a sur­vey of Chiefs of Police from around the coun­try, 70 per­cent of whom said they could no longer pro­vide the type of crime pre­ven­tion activ­i­ties they did ten years ago because of too few police officers.[45]

Boston, like New York, is in a state with­out the death penal­ty, though Governor William Weld (R‑Mass.) has been attempt­ing to re-instate it. That pro­pos­al has met with oppo­si­tion from the state’s dis­trict attor­neys. Judd Carhart, past pres­i­dent of the dis­trict attor­neys’ asso­ci­a­tion said a major­i­ty of the state’s dis­trict attor­neys oppose cap­i­tal pun­ish­ment par­tial­ly on the grounds that it is a waste of mon­ey bet­ter spent on oth­er areas of law enforce­ment and incar­cer­a­tion. [46] Attorney General Scott Harshbarger agreed: ​“We need major crim­i­nal jus­tice and court reform now to address the cri­sis in our crim­i­nal jus­tice sys­tem. The death penal­ty, how­ev­er, has no place in this reform effort. It is a sim­plis­tic, arbi­trary, mis­guid­ed, inef­fec­tive and cost­ly response, cloaked in the guise of a rem­e­dy to the bru­tal­iz­ing vio­lence that angers and frus­trates us all.” [47]

Compared to com­mu­ni­ty polic­ing and oth­er suc­cess­ful pro­grams, the death penal­ty, for all its cost, appears to have no effect on crime. A New York Times edi­to­r­i­al not­ed recent­ly that the num­ber of exe­cu­tions in this coun­try ​“con­sti­tut­ed less than .001 per­cent of all mur­der­ers … and were only .000004 per­cent of all vio­lent crim­i­nals. Even if U.S. exe­cu­tions were mul­ti­plied by a fac­tor of 10 they would still con­sti­tute an infin­i­tes­i­mal ele­ment of crim­i­nal jus­tice.” The pub­lic seems to agree: only 13 per­cent of those who sup­port cap­i­tal pun­ish­ment believe it deters crime. [48]

New York and Massachusetts can be con­trast­ed with Texas which is the nation’s leader in the use of the death penal­ty. Texas has the largest death row and has exe­cut­ed almost twice as many peo­ple as the next lead­ing state. Houston alone accounts for 10% of all peo­ple exe­cut­ed in the United States since 1976.[49] Yet, the mur­der rates in three of Texas’ major cities rank among the nation’s top 25 cities. In all three, Houston, Dallas and Fort Worth, the num­ber of mur­ders increased sig­nif­i­cant­ly last year. [50]

Wherever the death penal­ty is in place, it siphons off resources which could be going to the front line in the war against crime: to police, to cor­rec­tion­al sys­tems, and to neigh­bor­hood pro­grams which have proven effec­tive. Instead, these essen­tial ser­vices are repeat­ed­ly cut while the death penal­ty con­tin­ues to expand. Politicians could address this cri­sis, but, for the most part, they either endorse exe­cu­tions or remain silent.

What dri­ves this high spend­ing on such an inef­fec­tive pro­gram? The answer lies part­ly in the pro­mo­tion by politi­cians who hope to ben­e­fit by advo­cat­ing the death penal­ty. Even though it fails to meet the cost-ben­e­fit test applied to oth­er gov­ern­ment pro­grams, many politi­cians use cap­i­tal pun­ish­ment to dis­tin­guish them­selves from their oppo­nents. Politicians have gen­er­al­ly not posed the death penal­ty as one alter­na­tive among a lim­it­ed num­ber of crime fight­ing ini­tia­tives which the peo­ple must ulti­mate­ly pay for. Rather, the death penal­ty is used to play on the pub­lic’s fear of crime and to cre­ate an atmos­phere in which the extreme view wins. The rhetoric then becomes pol­i­cy and the people pay. 

The Death Penalty in National Politics

Flush with his par­ty’s con­vinc­ing vic­to­ry in the 1988 Presidential elec­tions, Republican National Chairman Lee Atwater urged his fel­low Republicans to cap­i­tal­ize on the issue of crime because ​“almost every Democrat out there run­ning is opposed to the death penal­ty.” [51] Apparently, the Democrats were lis­ten­ing as well since politi­cians of all stripes rushed to pro­claim their sup­port of capital punishment.

From Florida to California, the polit­i­cal races in 1990 were marked by exces­sive attempts by politi­cians to appear tougher on crime by their will­ing­ness to exe­cute peo­ple. Ironically, those who were most demon­stra­tive about the death penal­ty were defeat­ed, though sel­dom by oppo­nents of capital punishment.

In this elec­tion year, the nation­al polit­i­cal debate on the death penal­ty is more con­spic­u­ous for its silence. The util­i­ty of the death penal­ty as a defin­ing issue was lost when most of the Democratic Presidential can­di­dates sup­port­ed the death penal­ty. George Bush and Bill Clinton are both in favor of the death penal­ty, though nei­ther has made it a major campaign issue. 

George Bush: From Willie Horton to the Crime Bill

In the pre­vi­ous cam­paign, George Bush was able to link a fur­lough for con­vict­ed mur­der­er Willie Horton with Michael Dukakis’ posi­tion against the death penal­ty, thus por­tray­ing Dukakis as soft on crime. This time, President Bush has sought to con­vey a tough image by his sup­port for a great­ly expand­ed fed­er­al death penal­ty. When recent unem­ploy­ment fig­ures indi­cat­ed that the econ­o­my was going to be a neg­a­tive for the Bush cam­paign, his advis­ers called for a greater empha­sis on crime to bol­ster the President’s popularity.[52]

In 1990, President Bush sought to iden­ti­fy the Republican Party as tough on crime. He intro­duced a crime bill whose cen­ter­piece was an expan­sion of the fed­er­al death penal­ty to over 40 new crimes. Not to be out­done, the Democrats endorsed a bill allow­ing the death penal­ty in over 50 new crimes. Despite two years of debate and attempts to expand the death penal­ty even fur­ther, the bill remains in polit­i­cal grid­lock. While the bil­l’s death penal­ty pro­vi­sions and restric­tions on fed­er­al habeas cor­pus appeals have received the most notice, pro­pos­als for law enforce­ment, prison con­struc­tion, boot camps and oth­er crime fight­ing pro­vi­sions have received little attention.

Just pri­or to the last pres­i­den­tial elec­tion in 1988, the death penal­ty was also pro­mot­ed as a way of appear­ing tough on drug crime. Legislation was passed impos­ing the death penal­ty in drug-relat­ed mur­ders but that law has result­ed in only sev­en pros­e­cu­tions and one death sen­tence in almost four years. Bush’s bill is designed to have a much broad­er appli­ca­tion. However, some parts of the cur­rent bill are also win­dow dress­ing, hav­ing lit­tle to do with the pub­lic’s con­cern about crime.

The crime bill would impose death sen­tences for such offens­es as trea­son, espi­onage, mur­der in the act of destroy­ing a mar­itime plat­form, mur­der of fed­er­al egg prod­uct inspec­tors, horse inspec­tors and poul­try inspec­tors. These pro­pos­als will have no real impact on crime in the streets, which is the ratio­nale for propos­ing such leg­is­la­tion. As one legal com­men­ta­tor put it: ​“What they mean when they say they’re ​‘get­ting tough’ is sim­ply that they are talk­ing tough.” [53]

An expand­ed fed­er­al death penal­ty could also prove to be enor­mous­ly expen­sive. One amend­ment approved by the Senate would impose the death penal­ty for mur­ders involv­ing weapons used in inter­state com­merce. The Congressional Budget Office esti­mat­ed that this pro­pos­al would cost as much as $600 mil­lion over four years. [54]

Senator Thomas Daschle (D.-SD) described much of the talk about the death penal­ty on Capitol Hill as polit­i­cal pos­tur­ing: ​“We debate in codes, like the death penal­ty as a code for tough­ness on crime. The whole game is a rush to acquire the code: he who gets the code first wins.… It den­i­grates the nation­al debate.” [55]

Bill Clinton: Insulating Himself from Attack

Although Clinton’s pro-death penal­ty stance has par­tial­ly neu­tral­ized Bush’s use of this tac­tic in the cur­rent cam­paign, on the death penal­ty one can nev­er be tough enough. For exam­ple, Vice President Dan Quayle recent­ly attacked Clinton for being soft on cap­i­tal pun­ish­ment (despite hav­ing presided over four exe­cu­tions as Arkansas Governor) because Clinton had sug­gest­ed that Gov. Mario Cuomo (D‑NY) might make a good Supreme Court Justice. [56]

Bill Clinton has crit­i­cized Bush’s manip­u­la­tion of the death penal­ty issue: ​“President Bush has used an expan­sion of the death penal­ty as a cov­er for actu­al­ly weak­en­ing the part­ner­ship of the fed­er­al gov­ern­ment in the fight against crime.” [57] However, Clinton bowed to the pop­u­lar wis­dom when he made a promi­nent demon­stra­tion of his sup­port for the death penal­ty by leav­ing the pri­ma­ry cam­paign in January to pre­side over the exe­cu­tion of a brain dam­aged defen­dant in Arkansas.

Ever since he lost the Governor’s race in Arkansas after serv­ing only one term, Clinton has made clear his sup­port for the death penal­ty. Clinton returned to office as Governor in 1983 and has grant­ed no com­mu­ta­tions to any­one on death row and has presided over all four of the state’s exe­cu­tions in the mod­ern era. However, as Arkansas was return­ing to exe­cu­tions, its mur­der rate was increas­ing: mur­ders in Little Rock, alone, jumped 40 per­cent in the past year. [58]

The Death Penalty in State Politics

The death penal­ty is almost the exclu­sive func­tion of the states rather than the fed­er­al gov­ern­ment. It is not sur­pris­ing, then, that some of the most bla­tant attempts at polit­i­cal manip­u­la­tion of the death penal­ty have occurred on the lev­el of state politics.

Florida and Texas are two states with the largest death rows and most active exe­cu­tion cham­bers. They were also the scene of recent guber­na­to­r­i­al races fea­tur­ing can­di­dates boast­ing of their abil­i­ty to secure more exe­cu­tions than their oppo­nent. In 1990, Florida’s Governor Bob Martinez cam­paigned with back­ground shots of smirk­ing ser­i­al killer Ted Bundy, while remind­ing the vot­ers how many death war­rants he had signed. Martinez was defeat­ed by Democrat Lawton Chiles who also favors the death penalty. 

The Texas Campaign: ​“Who Can Kill the Most Texans?”

The gov­er­nor’s race in Texas pre­sent­ed a vari­ety of can­di­dates vying to demon­strate their greater sup­port of the death penal­ty. As pop­ulist Democrat Jim Hightower put it, the race boiled down to one issue: ​“Who can kill the most Texans?” [59]

Former gov­er­nor Mark White por­trayed his tough­ness by walk­ing through a dis­play of large pho­tos of the peo­ple exe­cut­ed dur­ing his term. Attorney General Jim Mattox insist­ed that he was the one who should be giv­en cred­it for the 32 exe­cu­tions car­ried out under his watch. Meanwhile, the Republican can­di­date, Clayton Williams showed pic­tures of a sim­u­lat­ed kid­nap­ping of young chil­dren from a school yard and then tout­ed his back­ing of a sep­a­rate law to impose the death penal­ty for killing chil­dren. His ad end­ed with the slo­gan: ​“That’s the way to make Texas great again.” [60]

In the end, the cam­paigns suc­ceed­ed only in gain­ing embar­rass­ing noto­ri­ety for Texas as Democrat Ann Richards became the even­tu­al win­ner. Richards has con­tin­ued Texas’ lead­er­ship in car­ry­ing out the most exe­cu­tions of any state. However, while Texas is spend­ing hun­dreds of mil­lions of dol­lars on the death penal­ty, it is hav­ing to release oth­er pris­on­ers ear­ly to avoid over­crowd­ing. Inmates serve only an aver­age of one-fifth of their sen­tences. In Harris County (Houston), arguably the death penal­ty cap­i­tal of the coun­try, 67 per­cent of those arrest­ed are recidi­vists and crime is the peo­ple’s num­ber one concern.[61]

California Politics: A Case of Neglect

California’s 1990 guber­na­to­r­i­al race also involved jock­ey­ing for the posi­tion of ​“death penal­ty can­di­date.” Dianne Feinstein was the most out­spo­ken, describ­ing her­self in com­mer­cials as ​“the only Democratic can­di­date for gov­er­nor in favor of the death penal­ty.” [62] This ploy caused her Democratic rival, John Van de Kamp, to respond with ads assur­ing the vot­ers that he would­n’t let his con­science get in the way of car­ry­ing out exe­cu­tions. Although per­son­al­ly opposed to the death penal­ty, his ads pro­claimed his record as attor­ney gen­er­al of putting or keep­ing almost 300 peo­ple on California’s death row and fea­tured pic­tures of the con­demned inmates in the background.

Van de Kamp lost to Feinstein and Feinstein then lost to Republican Pete Wilson, anoth­er stri­dent pro-death penal­ty can­di­date. This year Feinstein is run­ning for the Senate and all 11 of the major can­di­dates for California’s two Senate seats sup­port the death penal­ty. [63]

California is in the throes of an extreme finan­cial cri­sis. The state paid its work­ers with IOUs for two months and most social ser­vices are fac­ing major cuts. Los Angeles County alone is con­sid­er­ing lay­ing off 500 sher­if­f’s deputies to cope with the loss of state funds. Such cuts are like­ly to have a direct effect on pub­lic safe­ty. As one offi­cial remarked, ​“The pub­lic does­n’t seem to have a height­ened sense of urgency about this yet, and I don’t think they ever will – until they become vic­tims themselves.”[64] Nevertheless, the state has been pay­ing an esti­mat­ed $90 mil­lion per year over nor­mal costs to car­ry out the death penalty.[65] With over 300 peo­ple con­demned to death, California has the sec­ond largest death row in the country.

The Los Angeles riots were a stark reminder of the anger which sim­mers as a result of social neglect. Reforms like com­mu­ni­ty polic­ing were con­tem­plat­ed in L.A. but were viewed skep­ti­cal­ly by for­mer Police Chief Daryl Gates because no funds were avail­able: ​“The first prob­lem, ” Gates said in his new book, ​“is the need for more offi­cers. But again, how much more can tax­pay­ers be asked to pay?” [66] As a result, L.A.‘s police force was described by one expert as ​“the antithe­sis of com­mu­ni­ty polic­ing. The depart­ment was cool, aloof, dis­con­nect­ed from the com­mu­ni­ty.” [67] The city burned. 

New York Politics: Grandstanding on the Death Penalty

New York illus­trates that vot­ers are not mono­lith­ic when it comes to the death penal­ty. Although more exe­cu­tions have been car­ried out in New York since 1900 than in any oth­er state, it does not have the death penal­ty now and has not exe­cut­ed any­one since 1963. For ten straight years, the state leg­is­la­ture has passed death penal­ty leg­is­la­tion and for ten years Governor Cuomo has vetoed the bills, con­tin­u­ing the tra­di­tion of Governor Hugh Carey before him. Although the major­i­ty of New Yorkers appears to sup­port cap­i­tal pun­ish­ment, Cuomo has been re-elect­ed repeat­ed­ly. Cuomo’s 1990 Republican oppo­nent, Pierre Rinfret, built a cam­paign around the death penal­ty but failed to win vot­er sup­port. Even fel­low Republican and death penal­ty sup­port­er Jack Kemp did­n’t sup­port such blatant manipulation:

“He’s run­ning on the death penal­ty for drug push­ers. I mean, good­ness gra­cious, if … that’s what pol­i­tics has descend­ed into in the 1990s – who can get to the far right on the death penal­ty – it is a sad day.… I don’t want to be in the Republican Party of New York if that’s all they can talk about, the death penal­ty. I am for the death penal­ty, but that pales in sig­nif­i­cance to the need for a healthy eco­nom­ic and oppor­tu­ni­ty-ori­ent­ed state, whether it is New York or the state of the econ­o­my nationally.”[68]

The New York leg­is­la­ture has often come close to over­rid­ing Cuomo’s veto. Lately, how­ev­er, that move­ment has been los­ing steam. The con­tro­ver­sy demon­strates that switch­ing one’s alle­giance on the death penal­ty issue to join the main­stream is not always a tick­et to elec­toral suc­cess. In the 1990 elec­tions, three Assemblymen who once opposed the death penal­ty, but who had late­ly switched their votes, were all defeat­ed. [69] As a result, the vote to over­ride Cuomo’s veto lost by a larg­er mar­gin in the next session.

The New York Daily News, long a sup­port­er of the death penal­ty with such sub­tle head­lines as FRY HIM!, has appar­ent­ly become frus­trat­ed with the polit­i­cal games-play­ing sur­round­ing the issue and now rejects the death penal­ty. In an edi­to­r­i­al ear­li­er this year, the News took par­tic­u­lar aim at those pro-death penal­ty politi­cians who vote against the alter­na­tive sen­tence of life-with­out-parole because it would make their own death penal­ty bill hard­er to pass: ​“Why won’t the Legislature adopt the obvi­ous alter­na­tive – life with­out parole? Because pols would rather grand­stand on the death penal­ty. It is cheap polit­i­cal expe­di­ence, not wise pub­lic pol­i­cy.” [70]

The death penal­ty’s chief pro­po­nent in the New York Assembly, Vincent Graber from Buffalo, acknowl­edged the kind of manip­u­la­tion the News crit­i­cized. Graber admit­ted that the life-with­out-parole bill was reject­ed because it inter­fered with the quest for cap­i­tal pun­ish­ment: ​“This being an elec­tion year,” Graber said in 1990, ​“I don’t think the Senate is in the mood to go with manda­to­ry life, no parole. The death penal­ty would become less of a cam­paign issue and I don’t think they want to do that.” [71]

Politics in Other Places

Politicians are quick to cap­i­tal­ize on an oppor­tu­ni­ty to pro­mote the death penal­ty. Massachusetts does not have the death penal­ty, but when Carol Stuart, a young white, preg­nant woman, was bru­tal­ly mur­dered in 1989, the city of Boston react­ed in angry shock. The media and the pub­lic were mis­led to believe that a young black man was the attack­er and the Republican Party called a press con­fer­ence with­in hours of Stuart’s death demand­ing a return to cap­i­tal pun­ish­ment. [72] After the embar­rass­ing truth came out that Stuart was prob­a­bly mur­dered by her own hus­band, the campaign fizzled.

In Arizona, state Representative Leslie Johnson (R‑Mesa) called for the death penal­ty for child moles­ters after a par­tic­u­lar­ly hor­ren­dous crime in Yuma. On the floor of the House, Johnson pro­posed the quick fix: ​“If we do away with these peo­ple, if we do have the death penal­ty and if you are a sex offend­er, you’re just out of here — dead, gone. And if we get a few inno­cent peo­ple, fine and dandy with me. I’ll take the per­cent­age, folks, because I don’t want to put my chil­dren at risk any­more.” [73]

And in the District of Columbia, Senator Richard Shelby (D‑Ala.) pro­posed that the death penal­ty be enact­ed for the city by Congress after one of his aides was killed on Capitol Hill. Congress respond­ed by cut­ting out the Mayor’s $25 mil­lion youth and anti-crime ini­tia­tive while impos­ing a ref­er­en­dum on the death penal­ty. The hid­den but inevitable costs result­ing from hav­ing cap­i­tal pun­ish­ment were not addressed in the appro­pri­a­tions bill. But if the expe­ri­ence of oth­er states is any indi­ca­tion, it will be nine years before any exe­cu­tion is car­ried out, after an expen­di­ture of $100 mil­lion or more, either from fed­er­al or DC funds.

Finally, the death penal­ty is manip­u­lat­ed by those politi­cians who are clos­est to it: the elect­ed state attor­neys and pros­e­cu­tors who make the deci­sions on which cas­es to pur­sue the ulti­mate pun­ish­ment. A cam­paign adver­tise­ment for dis­trict attor­ney Bob Roberts of North Carolina, for exam­ple, lists all the defen­dants for whom he won a death sen­tence. His slo­gan: ​“If one of your loved ones is mur­dered, who do you want to try the accused? Bob Roberts with his splen­did record and expe­ri­ence or his inex­pe­ri­enced oppo­nent.” [74]

As a pub­lic defend­er, attor­ney gen­er­al Grant Woods of Arizona had argued before a judge that it would be mur­der if the judge sen­tenced his inno­cent client to death. Now, as chief pros­e­cu­tor and staunch defend­er of the death penal­ty, Woods turned on his client, Murray Hooper, say­ing he is guilty and deserves the death penal­ty. Since Hooper is still on death row, such a rep­re­sen­ta­tion has raised ques­tions of legal ethics and client loy­al­ty. Woods claims he is just doing his job. [75]

A dis­trict attor­ney in Georgia, Joseph Briley, was also charged with numer­ous breach­es of legal ethics in a Supreme Court ami­cus brief signed by 12 legal ethics pro­fes­sors from around the coun­try. When the con­vic­tion of Tony Amadeo was over­turned, Briley first announced that he would again seek the death penal­ty. However, he lat­er allowed the defen­dant to plead guilty in exchange for a life sen­tence after the defense prof­fered three expert wit­ness­es to tes­ti­fy that his eth­i­cal vio­la­tions should dis­qual­i­fy him from retry­ing the case. Briley’s frus­tra­tion at hav­ing to take the plea was summed up in his com­ment to one of the defense attor­neys: ​“You’ve prob­a­bly made me une­lec­table.” [76]

In Kentucky, Commonwealth Attorney Ernest Jasmin made a name for him­self by obtain­ing a death sen­tence against the killer of two teenagers from Trinity High School. He then cam­paigned as the Trinity Prosecutor, tak­ing ads in the high school news­pa­per and cam­paign­ing with one of the vic­tims’ par­ents fre­quent­ly at his side. [77]

In Nebraska, attor­ney gen­er­al Don Stenberg took the unusu­al step of attach­ing a per­son­al let­ter to his Supreme Court brief urg­ing the exe­cu­tion of Harold Otey, whom he described as a ​“vicious killer” who ​“still smirks at the fam­i­ly of the vic­tim.…” [78] While push­ing pub­licly for Otey’s death, Stenberg also sat as one of three deci­sion mak­ers at Otey’s clemen­cy hear­ing and two of his staff pre­sent­ed grue­some details of the murder.

In sum, there has been a steady stream of politi­cians attempt­ing to cap­i­tal­ize on the death penal­ty issue in recent years. Real solu­tions to crime get over­shad­owed in the tough talk of cap­i­tal pun­ish­ment. When some of these politi­cians are suc­cess­ful, the death penal­ty gets imple­ment­ed or expand­ed and the peo­ple begin to pay the high costs. Somewhere down the road there may be an exe­cu­tion, but the crime rate con­tin­ues to increase. Politicians do the peo­ple a dis­ser­vice by avoid­ing the hard eco­nom­ic choic­es that have to be made between the death penal­ty and more cred­i­ble meth­ods of reducing violence.

The death penal­ty is parad­ing through the streets of America as if it were clothed in the finest robes of crim­i­nal jus­tice. Most politi­cians applaud its fin­ery; oth­ers stare in silence, too timid to pro­claim that the emper­or has no clothes. Instead of con­fronting the twin crises of the econ­o­my and vio­lence, politi­cians offer the death penal­ty as if it were a mean­ing­ful solu­tion to crime. At the same time, more effec­tive and vital ser­vices to the com­mu­ni­ty are being sac­ri­ficed. Voters should be told the truth about the death penal­ty. They should under­stand that there are pro­grams that do work in reduc­ing crime, but the resources to pay for such pro­grams are being divert­ed into show exe­cu­tions. Being sen­si­ble about crime is not being soft on crime. Too much is at stake to allow polit­i­cal manip­u­la­tion to silence the truth about the death penal­ty in America.

Since the pub­li­ca­tion of Millions Misspent in the fall of 1992, more judges, pros­e­cu­tors and oth­er state offi­cials have joined those ques­tion­ing the death penal­ty in light of its exor­bi­tant costs. At a time when crime is the nation’s pri­ma­ry con­cern, new data con­firms the Report’s ear­li­er con­clu­sion that the death penal­ty is drain­ing state trea­suries of funds which could be spent on effec­tive crime prevention measures.

The finan­cial bur­den is par­tic­u­lar­ly acute in coun­ties where admin­is­tra­tors are being forced to choose between rais­ing tax­es and bank­rupt­cy in order to pros­e­cute death penal­ty cas­es. While many politi­cians con­tin­ue to ignore these costs in using the death penal­ty to sound tough, some pros­e­cu­tors are now decid­ing not to seek exe­cu­tions because the cas­es are sim­ply too expensive. 

The Duke University Study

In May, 1993, a fed­er­al­ly fund­ed study brought a new per­spec­tive to the cost debate. [79] This mod­el study was prompt­ed by an American Bar Association pro­pos­al and was con­duct­ed at Duke University’s Terry Sanford Institute of Public Policy. It is one of the most com­pre­hen­sive and thor­ough analy­ses on this topic.

Authors Philip Cook and Donna Slawson spent two years com­par­ing the costs of adju­di­cat­ing cap­i­tal and non­cap­i­tal cas­es in North Carolina and con­clud­ed that cap­i­tal cas­es cost at least an extra $2.16 mil­lion per exe­cu­tion, com­pared to what tax­pay­ers would have spent if defen­dants were tried with­out the death penal­ty and sen­tenced to life in prison. [80] Moreover, the bulk of those costs occur at the trial level.

Applying their fig­ures on a nation­al lev­el implies that $82 mil­lion was spent just for U.S. exe­cu­tions in 1993, and that the nation­al bill for the death penal­ty has been over $500 mil­lion since the death penal­ty was reinstated.[81] Yet, the nation­al con­cern about crime indi­cates that few feel safer for all this expense. 

Time Is Money

Death penal­ty cas­es are so expen­sive because they take longer at every stage and require vast resources for both the pros­e­cu­tion and the defense. The authors of the North Carolina study iden­ti­fied 24 prin­ci­pal areas in which a death penal­ty case would like­ly be more expen­sive than if the case were tried non-cap­i­tal­ly. [82] These areas included: 

• More inves­tiga­tive work by both law enforce­ment offi­cials and the defense team
• More pre-tri­al motions
• More ques­tion­ing con­cern­ing indi­vid­ual jurors’ views on cap­i­tal pun­ish­ment and more peremp­to­ry chal­lenges to jurors at jury selection
• The appoint­ment of two defense attorneys
• A longer and more complex trial
• A sep­a­rate penal­ty phase con­duct­ed in front of a jury
• A more thor­ough review of the case on direct appeal
• More post-tri­al motions
• Greater like­li­hood that coun­sel will be appoint­ed for a fed­er­al habeas corpus petition
• Greater like­li­hood that there will be full brief­ing and argu­ment on federal review
• More prepa­ra­tion for, and a longer clemency proceeding.

The North Carolina study esti­mat­ed that a death penal­ty tri­al takes about four times longer than a non-cap­i­tal mur­der tri­al. And, of course, not every death penal­ty tri­al results in a death sen­tence. Based on the expe­ri­ence in North Carolina, the authors found that less than a third of cap­i­tal tri­als result­ed in a death sen­tence. [83] Nevertheless, each of the these tri­als had the extra expense asso­ci­at­ed with death penal­ty pro­ceed­ings. The tri­al costs alone were about $200,000 more for each death penal­ty imposed than if no death penal­ty was involved. [84]

The authors com­put­ed the costs of appeal­ing a death penal­ty case and sub­tract­ed the sav­ings which accrue to the state when an exe­cu­tion final­ly occurs. The ​“sav­ings,” which are due to the inmate no longer being kept at state expense, only occur when an exe­cu­tion is actu­al­ly car­ried out. As with the tri­al lev­el, there is a ​“fail­ure” rate result­ing from the fact that many inmates who are sen­tenced to death will nev­er be exe­cut­ed. Many cas­es will be over­turned on appeal, some inmates will com­mit sui­cide, oth­ers will die of nat­ur­al caus­es. Again, based on the expe­ri­ence in North Carolina, the authors esti­mat­ed that only one inmate would like­ly be exe­cut­ed for every ten who are sen­tenced to death. [85] This is actu­al­ly high­er than the nation­al rate where only about one in every eleven cas­es which have been resolved has result­ed in an exe­cu­tion. [86]

Bulk Of Costs at Trial Level

The impor­tance of account­ing for this fail­ure rate is crit­i­cal for two rea­sons. First, it rep­re­sents a truer pic­ture of what it is actu­al­ly cost­ing the state to achieve an exe­cu­tion. It is not just the cost of a sin­gle per­son­’s tri­al and appeals. That would be com­pa­ra­ble to say­ing that the cost of land­ing a man on the moon was the cost of fuel for the one rock­et which brought him there. The state has to pay more for all the tri­als and appeals which start out as death penal­ty cas­es but for which there will nev­er be the ​“sav­ing” asso­ci­at­ed with an execution.

Second, the per exe­cu­tion costs reveal that the bulk of death penal­ty costs occur at the tri­al lev­el. Often those who acknowl­edge the high costs of the death penal­ty believe that the expense is due to ​“end­less appeals.” By tak­ing into account the cap­i­tal cas­es which will nev­er result in an exe­cu­tion, the North Carolina study makes clear that the tri­als pro­duce the largest share of death penal­ty costs [87] and these costs will not be sub­stan­tial­ly less­ened by tin­ker­ing with the oppor­tu­ni­ties that death row inmates have to appeal. A sig­nif­i­cant finan­cial corol­lary of this find­ing is that tax­pay­ers must pay death penal­ty expens­es up front, where­as the costs of a life sen­tence are met­ed out grad­u­al­ly over many years, mak­ing that alter­na­tive even less expensive. 

Evidence from Other States

There have been numer­ous indi­ca­tions from oth­er areas of the coun­try that the death penal­ty is strain­ing the bud­gets of state and local gov­ern­ments and that the finan­cial drain is get­ting worse. Some coun­ties have been brought to the brink of bank­rupt­cy because of death penal­ty cas­es. More coun­ty com­mis­sion­ers have risked going to jail for balk­ing at pay­ing for cap­i­tal pros­e­cu­tions, [88] while oth­ers reluc­tant­ly raise tax­es to pay the costs of even one capital case. 

• In San Diego, California, the pros­e­cu­tion costs alone (not count­ing defense costs or appeals) for three cap­i­tal cas­es aver­aged over half a mil­lion dol­lars each. [89] One esti­mate puts the total California death penal­ty expense bill at $1 bil­lion since 1977. [90] California has exe­cut­ed two peo­ple dur­ing that time, one of whom refused to appeal his case.
• In Jasper County, Mississippi, the Circuit Judge and the District Attorney had to address the coun­ty super­vi­sors to get more mon­ey for death penal­ty pros­e­cu­tions. The only solu­tion was to raise coun­ty tax­es. ​“It’s going to be a fair­ly sub­stan­tial increase,” said the board pres­i­dent, John Sims. ​“I hope the tax­pay­ers under­stand.…” [91]
• In Connecticut, a state with only a hand­ful of death row inmates, The Connecticut Law Tribune was unable to cal­cu­late the total costs of cap­i­tal pun­ish­ment but con­clud­ed that the ​“costs are staggering.”[92] State’s attor­ney Mark Solak said he spent between 1,000 and 1,500 hours prepar­ing one cap­i­tal pros­e­cu­tion. [93] The defense attor­ney in the case not­ed that if his client had been giv­en an offer of life in prison with­out parole he would have accept­ed it ​“in a heart­beat.” ​“The case,” he said, ​“would have been over in 15 min­utes.… No one would have spent a pen­ny.” [94]

Other items from The Connecticut Law Tribune’s report:

• Jury selec­tion in death cas­es can take eight weeks. [95]
• One state’s attor­ney in one case spent about 7 months dis­till­ing a 10,000 page tri­al tran­script, and three oth­er attor­neys assist­ed him, putting in a total of 15 months’ work. [96]
• The state’s pub­lic defend­er office spends about $138 defend­ing an aver­age crim­i­nal case. Death penal­ty cas­es, how­ev­er, have cost over $200,000 each to defend. [97]

In South Carolina, The Sun News report­ed that the bills for death penal­ty cas­es are ​“sky­rock­et­ing” because of a state supreme court rul­ing that attor­neys in death penal­ty cas­es deserve rea­son­able fees. Before the deci­sion, attor­neys received no more than $2,500 for each death penal­ty case.[98]

It took six years to extra­dite Charles Ng from Canada to California main­ly because Canada resist­ed the prospect of send­ing some­one to a pos­si­ble death sen­tence. Since com­ing to California, the case has cost Calaveras County $3.2 mil­lion, an amount which would have bank­rupt the coun­ty except for the fact that the state agreed to reim­burse the coun­ty until 1995. Now it looks as though the bailout will have to last until the year 2000, with mil­lions more in expens­es yet to come. [99]

In Harris County, Texas, there are 135 pend­ing death penal­ty cas­es. State Judge Miron Love esti­mat­ed that if the death penal­ty is assessed in just 20 per­cent of these cas­es, it will cost the tax­pay­ers a min­i­mum of $60 mil­lion. Judge Love, who over­sees the coun­ty’s courts, remarked: ​“We’re run­ning the coun­ty out of mon­ey.” [100]

Reactions to the High Costs

There have been many sim­i­lar reac­tions from state and local offi­cials who won­der about the wis­dom of spend­ing such exor­bi­tant sums on such unpre­dictable and iso­lat­ed cas­es. In Tennessee, the num­ber of peo­ple sen­tenced to death has dropped because pros­e­cu­tors say death penal­ty cas­es cost too much. [101]

In Texas, Judge Doug Shaver from Houston was also con­cerned about the high costs of so many cap­i­tal cas­es: ​“I can’t fig­ure out why our coun­ty is pros­e­cut­ing so many more (death) cas­es than com­pa­ra­bly large coun­ties around Texas. When the law changed so defen­dants can be sen­tenced to 40 years flat time (as an alter­na­tive to death), and when you start tak­ing into account what the tax­pay­ers are get­ting for their mon­ey, it seems like some defen­dants should be tried … with­out the death penal­ty.” [102]

Former Texas Attorney General Jim Mattox agrees: ​“Life with­out parole could save mil­lions of dol­lars.” ​“In oth­er words,” he wrote, ​“it’s cheap­er to lock ​‘em up and throw away the key .… As vio­lent crime con­tin­ues to esca­late, it’s some­thing to con­sid­er.” [103]

California has been hit par­tic­u­lar­ly hard by nat­ur­al dis­as­ters and the eco­nom­ic reces­sion. Many social pro­grams have had to be cut. Yet the state con­tin­ues to spend hun­dreds of mil­lions of dol­lars on the death penal­ty which has result­ed in two exe­cu­tions in sev­en­teen years. Even sup­port­ers of the death penal­ty rec­og­nize that it is a finan­cial los­er. In finan­cial­ly strapped Orange County, Vanda Bresnan, who man­ages the crim­i­nal courts, remarked: ​“Even though I do believe in the death penal­ty, I won­der how long the state or coun­ty can afford it,” [104] she said. Defense attor­ney, Gary Proctor, who prac­tices in the same coun­ty, believes that the solu­tion will be found by cut­ting oth­er ser­vices: ​“What I see hap­pen­ing is that oth­er ser­vices pro­vid­ed to the tax­pay­er — such as libraries and parks — will be cut back. Certain peo­ple are not aware of the trade­offs.” He added: ​“Strong beliefs are easy enough to hold if you don’t think they’re com­ing out of your pocket.”[105]

In rur­al Kentucky, tax bases are small and bud­gets are already stretched. When an expen­sive cap­i­tal case is about to be heard in court, the state and coun­ty often argue for weeks about who will pay. As Michael Mager, exec­u­tive direc­tor of the Kentucky County Judge-Executives Association, points out, ​“A lit­tle rur­al coun­ty in Kentucky just can’t deal with bills like that.” [106]

And in Connecticut, the Chief State’s Attorney, John M. Bailey, echoed sim­i­lar con­cerns: ​“Every dol­lar we spend on a cap­i­tal case is a dol­lar we can’t spend any­where else.… We have to let the pub­lic know what it costs” to pur­sue a cap­i­tal case. [107]

Political Manipulation of the Death Penalty

Despite the over­whelm­ing weight of evi­dence point­ing to the unman­age­able and grow­ing costs of impos­ing cap­i­tal pun­ish­ment, politi­cians con­tin­ue to ignore these costs in using the death penal­ty to appear tough on crime. This hypocrisy reached new heights with the pas­sage of the fed­er­al crime bill. Every time this leg­is­la­tion was con­sid­ered, the num­ber of new death penal­ty crimes grew. While debate imme­di­ate­ly before the bil­l’s pas­sage cen­tered on whether the pro­posed crime pre­ven­tion mea­sures were too expen­sive, lit­tle was said about the costs that these new death penal­ties would bring or whether they were like­ly to do any good.

Ultimately, fund­ing for crime pre­ven­tion pro­grams was cut back but the 60 new fed­er­al death penal­ty crimes were left intact. Unfortunately, the lega­cy of the death penal­ty will prob­a­bly out­last all the oth­er pro­vi­sions of the leg­is­la­tion. Federal fund­ing for new police, pris­ons and pro­grams like mid­night bas­ket­ball will be phased out in a few years but the costs of expand­ing the death penal­ty will last for decades. Federal pros­e­cu­tions in death penal­ty cas­es are like­ly to be even more expen­sive than in the states. Thousands of offens­es will now be eli­gi­ble for the fed­er­al death penal­ty. Even if only a small frac­tion of these cas­es are pur­sued, the costs of addi­tion­al fed­er­al pros­e­cu­tors, addi­tion­al fed­er­al pub­lic defend­ers and judges will be drain­ing. The fed­er­al gov­ern­ment will be join­ing the states in spend­ing mil­lions of dol­lars for an occa­sion­al exe­cu­tion, with no effect on the real prob­lem of crime.

Some Representatives and Senators vot­ed in con­science against the crime bill because of its death penal­ty pro­vi­sions. But, for the most part, pol­i­tics pre­vailed. Philip Heymann, the for­mer U.S. Deputy Attorney General who recent­ly resigned from the Justice Department, com­ment­ed that the entire crime debate was ​“so mired in pol­i­tics and ide­ol­o­gy that no one in the Government dared speak the truth about the sub­ject.” The truth, as he saw it, was that the crime bill was a deeply flawed quick fix that sound­ed great ​“for the first 15 sec­onds,” the per­fect length for a cam­paign ad sound bite. [108]

Robert Morgenthau, the District Attorney for Manhattan, sim­i­lar­ly cas­ti­gat­ed the pol­i­tics behind expan­sion of the fed­er­al death penal­ty: ​“I know of no law-enforce­ment pro­fes­sion­al who believes that all the death penal­ty pro­vi­sions and new Federal crimes would affect pub­lic safe­ty in the slight­est.” The bill, he not­ed, ​“would pro­vide no new Federal judges, pros­e­cu­tors or court­rooms. That isn’t sur­pris­ing: the new crimes and death sen­tences are win­dow dressing.”[109]

Conclusion

Recent stud­ies of death penal­ty costs rein­force the exist­ing evi­dence that the death penal­ty is becom­ing unman­age­ably expen­sive. Like a black hole, it absorbs vast quan­ti­ties of resources but emanates no light. Nevertheless, politi­cians and much of the pub­lic are drawn to it in the hope of find­ing a quick fix to the crime prob­lem. But as the actu­al costs of cap­i­tal pun­ish­ment become clear­er, the pub­lic should be in a bet­ter posi­tion to judge the death penal­ty as they would oth­er pro­grams. If a pro­gram is high­ly cost inten­sive, giv­en to years of liti­gious expense, focused on only a few indi­vid­u­als, and pro­duces no mea­sur­able results, then it should be replaced by better alternatives.

Amanda Smith assist­ed in the prepa­ra­tion of this Epilogue.