Death of a Penalty


Four billion dollars spent on 13 lives over 35 years: This is what California’s capital punishment system looks like. Since the current system’s institution in 1978, only 13 people have been executed in 35 years, with the last execution in January 2006, at a total cost of $4 billion. The punishment’s price is remarkably high and, as of 2011, each execution is estimated to cost California $300 million. Meanwhile, multiple reports state that California would save millions of dollars by abolishing its capital punishment system. In July 2012, California’s Legislative Analyst Office reported that the state would save $130 million annually by replacing the death penalty with a maximum sentence of Life Without Parole (LWOP), while a 2011 Loyola of Los Angeles Law Review article estimated that number to be even higher, at $170 million. The potential of these savings becomes more pressing in the context of California’s recent financial struggles. While the resource-rich state has one of the largest economies in the world, it is still recovering from a brutal financial crisis that crippled the state from 2008 to 2012. Although California’s economy has been steadily improving, the state still feels the crisis’ effects, from California’s $30 billion "wall of debt" (in Governor Jerry Brown’s words) to recent years’ increased tuition costs at public universities. In this context, capital punishment’s hefty price tag becomes not only unattractive, but also infeasible.

California is just one example of the American capital punishment system’s economic failures. No matter the state or system, it is always cheaper to sentence a defendant to LWOP, keeping him alive for life, than it is to execute him. The extravagant expense of capital punishment renders the practice unsustainable for states to use, a conclusion that some states have already reached, and others must arrive at soon. To be sure, California is an extreme case, as most states have not faced the same economic pressures California has in the past few years, but this issue is nevertheless one that politicians and taxpayers in every death penalty state are being forced to confront. Regardless of how one feels about execution morally, nobody can deny that it is not economical. The question driving debate over capital punishment in the United States is no longer one of moral rectitude; rather, the question is now that of economic feasibility, and the answer is difficult to overlook.

On its face, this pronouncement is confusing. Intuitively, ending an inmate’s life should not cost more than sustaining his life indefinitely. So what makes the death penalty so expensive? Two main factors provide the answer: pre-trial and trial costs, and appeals and petitions. Costs of incarceration and the drugs used in lethal injection (the method of execution favored by most states) require extra money as well, but not nearly to the same degree.

In terms of additional trial costs, capital cases entail extra costs from the beginning of the case to whenever they end. In the pre-trial and trial stages, these costs arise from the following four factors. First, there are actually two phases of a trial in every capital case: one to determine guilt, and one to determine punishment. Second, attorneys, judges, and juries must all be carefully selected for (theoretical) experience, competency, and objectivity. Third, additional investigations must be conducted and more experts than usual interviewed. Fourth, it takes more time – and with it, more money – simply to set up and conduct the trial. Taken altogether, each of these individual extra costs makes even just a capital punishment trial – let alone imprisonment and execution – a significant financial burden. In the words of Richard C. Dieter, executive director of the Death Penalty Information Center, "whatever expenses there are in an ordinary criminal case, they will be much higher in a capital case." Hard numbers back up his words. According to the Death Penalty Information Center, a 2013 article published in the Lewis & Clark Law Review examining the death penalty in Oregon found that "[t]he average cost of defending a death penalty case at the trial level over the last ten years was $438,651, while the average cost of defending a non-death aggravated murder case at the trial level was $216,693, less than half." In 2009, a study run by a Duke economics professor found that North Carolina spent $13,180,385 over a two-year period on extra defense costs for capital cases during the trial phase. These facts become even more frightening once one realizes that, due to these costs, many cases involving crimes that could provide legal grounds for the death penalty do not even end with the prosecutor seeking the death penalty. This means that these costs still apply to cases that never see the light of a capital trial, forcing taxpayers to foot the exorbitant bill for cases that will never even arrive in court.

These costs do not fade away after sentencing, though—appeals and petitions arise after that. The exact appeals process varies by state, but the following description of California’s appeals process captures the drawn-out complexity that most state appeals processes entail. In California, first, the California Supreme Court automatically reviews convictions through direct appeal, and the defendant’s (now the appellant) attorney argues why the defendant was wrongly convicted or sentenced (such as trial error). If the court fails to reverse the defendant’s conviction or death sentence, the now-appellant can then turn to the US Supreme Court to review the case, which it usually declines to do.

An inmate may then seek habeas corpus review (the right to have one’s conviction reviewed by judges) from the state, in which further issues can be raised, such as attorney incompetence. After all avenues for re-examination or reversal of conviction or punishment have been exhausted, the defendant may then seek federal habeas corpus review, bringing his case to federal district courts, then to the US Court of Appeals, then to the US Supreme Court again. If all of these appeals and petitions fail, a defendant may also file second or successive state or federal habeas corpus petitions. The length and breadth of these appeals, and the sheer time it may take courts to reach conclusions, have caused death row inmates to languish on death row for years before actually facing execution.

Currently, the average waiting period is around a decade, which accounts for the incarceration costs that death row inmates incur. In sum, the number of appeals and petitions of which death row-bound defendants can take advantage translates to an enormous amount of money. According to the Death Penalty Information Center, in 2006, the Washington State Bar Association reported that, on direct appeal alone, "the cost of appellate defense averages $100,000 more in death penalty cases, than in non-death penalty murder cases." When the state of Kansas reviewed its death penalty expenses in 2003, it found that "appeal costs for capital cases were 21 times greater" than those for non-death penalty cases. These numbers and facts paint a picture of a criminal justice system that cannot sustain itself.PKcL1zOPXvDc6QlazS2gJe9fXtTFI1e6-MQi8-pf1Po

The easy way to reduce these costs would be to cut down on these extra trial proceedings and number of available appeals. This is the position of Kent Scheidegger, legal director of the Criminal Justice Legal Foundation. In a CNN article, Scheidigger stated that allowing only one appeal would eliminate many of these costs, with the exception of multiple appeals only if a defendant presents "a genuine claim that he didn’t do it." The problem with this logic, of course, is what constitutes a genuine claim? Only new evidence? What about incompetent counsel, juror bias, or investigatory error? As steep as these costs are, all are necessary in order to make sure the death penalty system is as fair as possible – the Supreme Court has even ruled that the Constitution requires such a system. These complex proceedings are in place to minimize the risk that we wrongfully condemn and execute an innocent person. Although we like to think that such a risk is small, it is very real and very present. Since 1973, across the United States, nearly 150 people have been exonerated from death row due to wrongful convictions, and several others, such as Cameron Todd Willingham and Troy Davis, have been executed despite substantial doubts about their guilt. Although not always effective, appeals and trials minimize the risk that we execute the wrong individuals – but such a system comes with a necessarily steep cost.

Because this cost cannot easily be pared down, as fewer appeals and trial proceedings would increase the risk of killing an innocent person, the question becomes whether this cost, high as it is, is at least cost-effective. As capital punishment is such an extravagant investment, society can — and should — reasonably expect to see a proportionally beneficial payoff. Such a payoff can be measured in the answer to a simple question: Does the death penalty keep Americans safe by lowering crime, as the threat of punishment should? In other words, does this incredibly large amount of money at least ensure that capital punishment ultimately helps society? The answer is no.

Evidence that capital punishment keeps Americans safer is nebulous at best. The death penalty is meant to act as a deterrent. In theory, threat of death should be enough to make a would-be murderer reevaluate his actions. If the death penalty is such a disincentive, then one could expect to see lower murder rates in states with the death penalty, where the threat of execution would presumably stop people from committing murder, and higher murder rates in states without the death penalty, where the absence of such a threat would not check people’s murderous actions. However, from 1991 to 2011, states without the death penalty have had consistently lower murder rates than states with the death penalty. This suggests that, on the whole, the threat of execution does not deter killers from killing. Moreover, although it is true that execution renders murderers unable to commit further crime, a sentence of LWOP has exactly the same effect. Thus, the idea that the death penalty keeps Americans safer by acting as a deterrent is unfounded and quite possibly untrue. This ambiguous data should make us question capital punishment’s weighty price tag. Capital punishment’s failure to deter crime means that we are pouring millions of dollars each year into an extravagant investment that fails to bring us the results we pay for. If any other significant investment produced so few returns, the wise consumer would end his involvement with the endeavor as soon as possible. As capital punishment benefits society so little, there is no reason why taxpayers and politicians should not do the same with capital punishment.

Fortunately, in the past decade, legislators and government figures in many states have begun to wake up to the economic reality of the death penalty. Maryland Governor Martin O’Malley pitched the abolition of the death penalty to the Maryland General Assembly on account of its cost. Like all states, in Maryland, it costs much more to prosecute capital cases than non-capital homicide cases, and Governor O’Malley argued that Maryland "can’t afford that when there are better and cheaper ways to reduce crime." Maryland went on to abolish the death penalty in 2013. When then-Governor Bill Richardson of New Mexico (formerly a supporter of the death penalty) repealed capital punishment in his state in 2009, he had also cited cost as "a valid reason [to end capital punishment] in this era of austerity and tight budgets."

To be sure, the abolition of capital punishment will not automatically balance a state’s budget. But even a few million dollars could help alleviate cost-induced stresses on taxpayers, or be better spent elsewhere. After capital punishment was abolished in New Mexico, State Representative Gail Chasey applauded Richardson’s decision, saying that "we can put that money toward enhancing law enforcement, public works, you name it."

When New Jersey was considering repealing capital punishment in 2007 (it did so in the December of that year), the New Jersey Death Penalty Study Commission recommended "that any cost savings resulting from the abolition of the death penalty be used for benefits and services for survivors of victims of homicide." As Jeffrey Fagan, a Columbia Law School professor, wrote in a 2006 Columbia Law School report, "The burden of [capital punishment] costs is borne by local governments, often diverting precious resources not only from police, but from health care, infrastructure, and education, or forcing counties to borrow money or raise taxes." Spending money on execution, and not education or other worthy endeavors, reflects a self-destructive, unsustainable system, one in which individuals are raised to fail, not to succeed.

The cost of capital punishment, in the end, is not only the punishment’s literal price tag, but also its effect on a state’s economic well-being and future. That cost is one that nobody should have to bear.