DPIC report Smart on Crime

7/29/2019 DPIC report Smart on Crime

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Smart on Crime:Reconsidering the Death Penaltyin a Time of Economic Crisis

National Poll of Police Chiefs Puts Capital Punishment

at Bottom of Law Enforcement Priorities

A Report from the Death Penalty Information Center

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Smart on Crime:Reconsidering the Death Penalty

in a Time of Economic Crisis

National Poll of Police Chiefs Puts Capital Punishmentat Bottom of Law Enforcement Priorities

A Report from the Death Penalty Information Centerby Richard C. Dieter, Executive Director

Washington, DCOctober 2009

www.deathpenaltyinfo.org

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RECONSIDERING THE DEATH PENALTY IN A TIME OF ECONOMIC CRISIS

5

Executive Summary

Introduction

The Views of Law Enforcement Police Chiefs Poll

The Crisis Facing State Criminal Justice Systems

How much does the death penalty cost?

Can the Costs of the Death Penalty Be Reduced?

Why Does the Death Penalty Cost So Much?

What is Society Receiving in Return?

Conclusion

References

Table of Contents

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18

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Executive Summary

Smart on Crime is a new report from theDeath Penalty Information Center that explores theprospect of saving states hundreds of millions ofdollars by ending the death penalty. The report alsoserves to release a national poll of police chiefs inwhich they rank the death penalty at the bottom of

their priorities for achieving a safer society.

The death penalty in the U.S. is anenormously expensive and wasteful program with noclear benets. All of the studies on the cost of capital

punishment conclude it is much more expensivethan a system with life sentences as the maximumpenalty. In a time of painful budget cutbacks, statesare pouring money into a system that results in adeclining number of death sentences and executionsthat are almost exclusively carried out in just onearea of the country. As many states face furtherdecits, it is an appropriate time to consider whethermaintaining the costly death penalty system is beingsmart on crime.

The nations police chiefs rank the deathpenalty last in their priorities for eective crimereduction. The ocers do not believe the death

penalty acts as a deterrent to murder, and they rate itas one of most inecient uses of taxpayer dollars inghting crime. Criminologists concur that the deathpenalty does not eectively reduce the number ofmurders.

Around the country, death sentenceshave declined 60% since 2000 and executions havedeclined almost as much. Yet maintaining a systemwith 3,300 people on death row and supporting newprosecutions for death sentences that likely will neverbe carried out is becoming increasingly expensive andharder to justify. The money spent to preserve thisfailing system could be directed to eective programs

that make society safer.

California is spending an estimated $137million per year on the death penalty and has nothad an execution in three and a half years. Floridais spending approximately $51 million per yearon the death penalty, amounting to a cost of $24million for each execution it carries out. A recentstudy in Maryland found that the bill for the deathpenalty over a twenty-year period that produced veexecutions will be $186 million. Other states like NewYork and New Jersey spent well over $100 million ona system that produced no executions. Both recently

abandoned the practice. This kind of wastefulexpenditure makes little sense. The death penalty mayserve some politicians as a rhetorical scare tactic, butit is not a wise use of scarce criminal justice funding.

In 2009, eleven state legislatures consideredbills to end capital punishment and its high costswere part of these debates. New Mexico abolishedthe death penalty and the Connecticut legislaturepassed an abolition bill before the governor vetoedit. One house of the legislatures in Montana andColorado voted to end the death penalty, and theColorado bill would have directed the cost savings tosolving cold cases. As the economic crisis continues,

the trend of states reexamining the death penalty inlight of its costs is expected to continue.

The report that follows analyzes the costsof the death penalty as measured in various statestudies. It examines why the death penalty is soexpensive and why it may be impossible to cutthose costs without endangering fundamentalrights. The report looks closely at the opinions oflaw enforcement experts and nds little support forcontinuing to spend enormous sums on an ineectiveprogram when so many other areas of need are beingshort changed. Many states are looking at the deathpenalty in a new light because of the economic crisis,

realizing that being smart on crime means investingin programs that really work.

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7

[W]e must move beyondthe narrow parameters that haveconstrained our nations debateabout criminal justice policy overthe last several decades. There is nodoubt that we must be tough oncrime. But we must also commit

ourselves to being smart on crime.

-Attorney General Eric Holder1

Give a law enforcementprofessional like me that $250

million, and Ill show you how toreduce crime. The death penalty isntanywhere on my list.

-Police Chief James Abbott,

West Orange, NJ

Local jurisdictions are likelyto lose a signicant amount of statefunding this year because of thesevere nancial crisis. This fundinghelps cities and counties provideessential services in the areas ofpublic safety, emergency services,

and health and childrens services. Without it, ourcommunities will no doubt suer dire consequences.

At the same time, we continue to waste hundreds ofmillions on the states dysfunctional death penalty.If we replaced the death penalty with a sentence

of permanent imprisonment, the state would savemore than $125 million each year. We havent had anexecution in California for three years. Are we any lesssafe as a result? I dont think so.

-Police Chief Ray Samuels, Newark, CA

Smart on Crime:Reconsidering the Death Penaltyin a Time of Economic Crisis

National Poll of Police Chiefs Puts Capital Punishmentat Bottom of Law Enforcement Priorities

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8

Introduction

For many states the impact of the economicrecession is likely to be felt for years to come. Theunemployment rate may surpass 10%, and 2009 willprobably be worse than 2008 in state income and indemands for services. Most states are facing newbudget shortfalls in the coming scal year, and furthercuts in state spending are inevitable.

Not surprisingly, the criminal justice systemis feeling the consequences of this downturnalong with other sectors of the economy. Policedepartments are cutting back, state employees arebeing furloughed, trials are being delayed as courtsand public defenders run out of money, and prisonersare being released early. The justice system wasalready overburdenednow it is being pushed to thebreaking point.

In every sector of the economy governments

are trying to eliminate wasteful programs whilepreserving essential services. This report examinesone reasonable step that could save hundreds ofmillions of dollars in the criminal justice system: endthe enormously expensive and wasteful death

penalty that is draining state budgets. Every coststudy in the U.S. shows that the death penalty is farmore expensive than a system where the maximumpenalty is life in prison. The following evidence showsthat many in the law enforcement community believethat replacing the death penalty with life withoutparole would actually advance the fundamental goalsof the criminal justice system. The report also explainswhy the death penalty is so expensive and estimates

the costs to the nation for retaining it.

The judgment that the death penalty isthe last place that scarce criminal justice dollarsshould go is supported by a growing number of lawenforcement ocials and backed by a national poll ofpolice chiefs that is being released in this report. Thepoll reveals that the death penalty is at the bottom of

the chiefs list when it comes to wise spending to

ghtcrime.

The problem is not simply the high costof capital punishment in a time of economic crisis.Indeed, some states like New York and New Jersey

took action to end the nancial drain caused by thedeath penalty even before the current downturn.

The death penalty has been a bloatedgovernment program for many decades. The deathpenalty is not just expensive, it is wasteful. In mostplaces the money is being spent even as the coremeasures of the systemdeath sentences andexecutionshave declined precipitously. It is as if acar manufacturer was keeping all of its factories andshowrooms open even though it was producing only

a handful of cars that hardly anyone was buying.

This is an appropriate time to examine

the death penalty as a pragmatic issueto ask, Isit working? Is it functioning as envisioned, and isit beneting society? Whether any societal gain isderived from the death penalty will be discussedmore below. But even at the most basic level ofexecutions the death penalty is dysfunctional. In moststates there were no executions last year and none onthe horizon. Almost all recent executions have beenin just one region of the countrythe southandmost of those have been in one stateTexas. 7 Thedeath penalty without executions is a very expensiveform of life without parole.

I no longer believe that youcanx the death penalty. I learnedthat the death penalty throwsmillions of dollars down the drain--money that I could be puttingdirectly to workghting crime everyday--while dragging victims

families through a long and torturous process thatonly exacerbates their pain. . . Give a law enforcementprofessional like me that $250 million, and Ill show youhow to reduce crime. The death penalty isnt anywhereon my list.i

-Police Chief James Abbott (NJ)

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The Views of Law Enforcement

Police Chief James Abbott of West Orange,New Jersey, quoted above, served on a legislativecommission that reviewed that states death penalty.The commission eventually overwhelminglyrecommended abolition of the death penalty.Chief Abbott is part of a growing number of lawenforcement ocials who have concluded that thereare much smarter ways to reduce crime than wastingmoney on the death penalty. A newly releasednational poll of police chiefs shows a high degreeof skepticism about the death penalty and a strongdesire to spend limited funds more productivelyelsewhere.

Police Chiefs Poll

The poll was commissioned by the DeathPenalty Information Center and conducted by R.T.Strategies of Washington, D.C., surveying a nationalsample of 500 randomly selected police chiefs in theUnited States.8

The police chiefs had the opportunity toidentify what they believe is most eective in ghtingcrime. As leaders in law enforcement, they were askedwhere the death penalty t in their priorities. The pollfound:

When asked to name one area as mostimportant for reducing violent crime, greater useof the death penalty ranked last among the policechiefs, with only 1% listing it as the best way to reduceviolence. Instead, increasing the number of policeocers, reducing drug abuse, and creating a bettereconomy and more jobs all ranked much higher thanthe death penalty.9

The death penalty was considered theleast ecient use of taxpayers money. Policechiefs ranked expanded training for police ocers,community policing, programs to control drug andalcohol abuse, and neighborhood watch programs asmore cost-eective ways to use taxpayers money.10

What Interferes with Eective Law Enforcement?

Lack of law enforcement resource

Drug/Alcohol Abuse

Family problems/child abuse

Lack of programs for mentally ill

Crowded courts

Ineective prosecution

Too many guns

Gangs

Insucient use of the death penalty

Percent Ranking Item as One of Top Two or Three

0 5 10 15 20 25

20

20

14

12

7

6

5

3

2

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The police chiefs did not believe that

criminals generally consider the consequences oftheir actions when engaged in violence. Fifty-sevenpercent (57%) said the death penalty does little toprevent violent crimes because perpetrators rarelyconsider the consequences when engaged inviolence.11

Although the police chiefs did not opposethe death penalty in principle, less than half(47%) supported it compared to a sentence oflife imprisonment without parole combined withmandatory restitution by the defendant to thevictim.12

Barely a quarter of the police chiefs polledbelieved expanding the death penalty, which theyviewed as slow and cumbersome, would alleviatecrime.13

Of various statements about the death

penalty, the one with which the police chiefs mostidentied was: Philosophically, I support thedeath penalty, but I dont think it is an eective law

enforcement tool in practie.

The police chiefs rejected any suggestionthat insucient use of the death penalty interferedwith their work. When asked about obstacles toeective law enforcement, the police chiefs rankedinsucient use of the death penalty last in a list ofnine issues, with only 2% saying it was one of their topconcerns.15 Even in the south, only 3% of the policechiefs chose greater use of the death penalty as oneof their top priorities. Instead, chiefs throughout the

country identied lack of law enforcement resources,drug and alcohol abuse, family problems, and the lackof secure treatment for the mentally ill as their topproblems.

Police Chiefs Views

Politicians support the death penalty as a symbolicway to show they are tough on crime

Death penalty cases are hard to closeand take up a lot of police time.

Debates about the death penalty distract Congressand state legislatures from focusing on real

solutions to crime problems.

The death penalty signicantly reducesthe number of homicides

The death penalty is one of the most importantlaw enforcement tools

Murderers think about the range of possiblepunishments before committing homicides

69

61

50

37

31

24

24

32

42

48

66

69

Percent Finding Statement Accurate/Innacurate

0 10 20 30 40 50 60 70 80 90 100

Accurate Innaccurate

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The primary purpose of the criminal justice

system is to make society safer. All aspects ofthis systemapprehending oenders, trials, andpunishmenthave costs. Cutbacks in any part of thecriminal justice system can potentially result in a lesssafe society. Choices have to be made. The deathpenalty is the most expensive part of the system on

Police Chiefs Agree Death Penalty Does Not Work as a Deterrent

AgreeDisagree

Strongly or Somewhat Disagree

Strongly or Somewhat Agree

Not sure

39% 57%

4%

a per-oender basis. Millions are spent seeking to

achieve a single death sentence that, even if imposedis unlikely to be carried out. Thus money that thepolice desperately need for more eective lawenforcement is wasted on the death penalty. It shouldbe high on the list of programs to cut.

The reality is that the death penalty is not, and neverhas been, a deterrent. Prison safety depends on proper stang,equipment, resources and training. Certainly the money spent ontrying to put someone to death for over 20 years couldnd better usein addressing those practical needs of our correctional system. . .[T ]the best way to protect our correctional professionals is torecognize the need for a well-trained sta, for the commitment of

adequate resources to operate the institutions safely, and for innovative management

incentives that serve to reduce the opportunity for prison violence.ii

- John Connor, Chief Special Prosecutor in Montana for 21 years,

prosecuting ve prison- homicide cases

The death penalty does little toprevent violent crimes because perpetrators

rarely consider the consequences whenengaged in violence.

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Police Reject Deterrence Theory

A signicant reason why police chiefs donot favor use of the death penalty is that they do notbelieve it deters murders. Only 37% of those polledbelieved the death penalty signicantly reduces thenumber of homicides.16 Fifty-seven percent (57%)agreed: The death penalty does little to preventviolent crimes because perpetrators rarely considerthe consequences when engaged in violence.17 Only24% of the respondents believe murderers thinkabout the range of possible punishments beforecommitting homicides.18

Criminologists Concur

The leading criminologists in the countryagree with the police chiefs about deterrence. Arecent survey showed that 88% of the countrys topcriminologists do not believe the death penalty actsas a deterrent to homicide.19

Eighty-seven percent (87%) believe abolitionof the death penalty would have no signicant eecton murder rates. The authors concluded:

Our survey indicates that the vast majorityof the worlds top criminologists believethat the empirical research has revealed the

deterrence hypothesis for a myth [ T]heconsensus among criminologists is that thedeath penalty does not add any signicantdeterrent eect above that of long-termimprisonment.20

Over many years, deterrence studies havebeen inconclusive, with most experts concludingthat the relative rarity of executions and theirconcentration in a few states renders nationalconclusions about a deterrent eect to the deathpenalty unreliable.21 If the goal is to deter homicides,the police chiefs have pointed to many ways ofachieving it far more eectively than the death

penalty.

With California facing

its most severe

scal crisis inrecent memory -- with draconiancuts about to be imposed fromSacramento that will aect everyresident of the state -- it would becrazy not to consider the fact that

it will add as much as $1 billion over the nextve yearssimply to keep the death penalty on the books. iii

- Former California Attorney General

John Van de Kamp

The Crisis Facing

State Criminal Justice Systems

On the state and federal level, eorts arebeing made to eliminate government programs thatdo not work and to address decits through layos,shorter hours for governmental services, and higherfees. But so far the death penalty has largely escapedthe budgetary scalpel. Capital punishment usesenormous resources on a few cases, with little toshow for it. This was the principal reason Coloradoslegislature came within one vote this year of passinga bill to abolish the death penalty and use the moneysaved to deal with unsolved cases, as victims families

had requested.22

The same states that are spending millionsof dollars on the death penalty are facing severecutbacks in other justice areas. Courts are openless, trials are delayed, and even police are beingfurloughed.

In Florida, the courts have lost 10% oftheir funding, with another cut expected, as homeforeclosures accelerated.23

Philadelphia is leaving 200 police positionsunlled.24

Police in Atlanta had a 10% pay cut througha furlough of 4 hours per week, even as the regionexperienced an increase in crime.25

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In New Hampshire, civil and criminal jury

trials were halted for a month to save money; in onecounty, 77 criminal trials were delayed for up to sixmonths.26

Public defenders in Kentucky, Tennessee,and Florida are overburdened with caseloads of 400felonies a year, even though national standards set alimit of 150.27

Legal service organizations that providehelp to indigent clients in civil matters depend onincome from interest rates that are tied to the FederalReserves benchmark interest rate. When that rate fellnearly to zero, many legal service organizations were

forced to cut sta20%, just when their services weremost needed.28

The legal service agency in East Texas wherethousands of people lost their homes in Hurricane Ikein 2008 experienced a budget drop from $16 millionto $4 million.29

A recent poll by the Police ExecutiveResearch Forum found that 39% of responding policedepartments said their operating budgets werebeing cut because of the economy, and 43% said thefaltering economy had aected their ability to deliverservices.30

Clearly, eliminating the death penalty cannotsolve all of these problems, but the savings wouldbe signicant. Where studies have been done, theexcess expendituresper yearfor the death penaltytypically are close to $10 million per state.31 If a newpolice ocer (or teacher, or ambulance driver) is paid$40,000 per year, this death penalty money could beused to fund 250 additional workers in each state tosecure a better community.

[W]hat of the tremendous

cost of pursuing capital punishment?. . . [If ] we were to replace the deathpenalty with life without parole,that $22.4 million could pay for 500additional police ocers or providedrug treatment for 10,000 of our

addicted neighbors. Unlike the death penalty, these areinvestments that save lives and prevent violent crime. Ifwe knew we could spare a member of our family frombecoming a victim of violent crime by making this policychange, would we do it?iv

-Governor Martin OMalley of Maryland

Costs Aect Capital Cases

The costs of capital punishment have forcedsome states into a crisis in administering the deathpenalty itself:

In New Mexico, the state Supreme Courtheld that more resources had to be made availablefor indigent defendants facing capital punishment.The legislature declined and adjourned for the year.A trial judge then ruled that the state could notpursue the death penalty in a particular case. Theattorney generals oce concurred, halting the capital

prosecution.32

The state abolished the death penaltyin 2009, with costs as a factor.33

In Georgia, pursuing the death penalty in theBrian Nichols case cost the state over $2 million indefense costs, and probably more for the prosecution.It resulted in a verdict of life imprisonment. There wasno question of Nichols guilt, but seeking the deathpenalty proved enormously expensive. The casehas resulted in a crisis in indigent funding across thestate. The head of the death penalty unit of the publicdefenders oce resigned because his oce could nolonger fairly represent its clients. Many cases haveground to a halt.34

In Florida, a budget crisis has led to a cutin funds for state prosecutors. Some prosecutorswill be cutting back on use of the death penalty andperhaps other prosecutions. Florida State Attorney

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Harry Shorstein recently explained how available

funds a

ect the administration of justice: There willbe cases that cant be tried. . . . We are strained tothe breaking point. . . . Instead of seeking the deathpenalty, maybe well seek something else.35

In 2009, eleven state legislatures (Colorado,Connecticut, Illinois, Kansas, Maryland, Montana,Nebraska, New Hampshire, New Mexico, Texas,and Washington) considered bills to abolish thedeath penalty. In many of the debates, cost wasan important issue. New Mexico abolished thedeath penalty. Connecticut voted to abolish it, butthe bill was vetoed by the governor. In Coloradoand Montana, the abolition bill passed one house

of the legislature before being defeated. With theeconomic crisis continuing, it is likely other states willaddressthis issue.

How much does the

death penalty cost?

There are many ways to approach thequestion of how much the death penalty costs. Onecould calculate the cost of each individual step ina death penalty case, such as the investigation, thetrial, and the appeals, though this approach focusesonly on the distinct minority of cases that go through

the whole system. Another approach would be tomeasure the extra cost to the state of arriving at onedeath sentence or one execution, a cost that mustinclude the many potential death penalty cases thatfailed to produce such a result. Finally, one couldassess the total extra costs to the state for maintainingthe death penalty system instead of a system in whichlife in prison was the maximum sentence, on a yearlyor multi-year basis. In recent years, studies have beenconducted not just to determine the bottom linein dollars and cents for this system, but as a way ofevaluating whether the death penalty is justied incomparison to other pressing state needs.

There is no national gure for the cost of thedeath penalty. Every state study is dependent onthat states laws, pay scales, and the extent to which ituses the death penalty. Studies have been conductedby research organizations, public defender oces,

legislative committees, and the media. Researchers

have employed di

erent approaches, using di

erentassumptions. However, all of the studies concludethat the death penalty system is far more expensivethan an alternative system in which the maximumsentence is life in prison.

The high costs to the state per executionreect the following reality: For a single death penaltytrial, the state may pay $1 million more than for anon-death penalty trial.36 But only one in every threecapital trials may result in a death sentence,37 so thetrue cost of that death sentence is $3 million. Furtherdown the road, only one in ten of the death sentenceshanded down may result in an execution.38 Hence,

the cost to the state to reach that one execution is $30million. Sums like these are causing ocials to rethinkthe wisdom of such expenditures.

Although arriving at the actual cost of thedeath penalty in a state is complicated, in somestates $30 million per execution is a very conservativeestimate:

In 2008, the California Commission onthe Fair Administration of Justice released anexhaustive report on the states capital punishmentsystem, concluding that it was dysfunctionaland broken. The report found that the state was

spending $137 million per year on the death penalty.The Commission estimated a comparable systemthat sentenced the same inmates to a maximumpunishment of life without parole would costonly $11.5 million per year. 39 Since the numberof executions in California has averaged less thanone every two years since the death penalty wasreinstated in 1977, the cost for each execution is over$250 million. The state has also indicated it needsanother $400 million to construct a new death row.

In New York and New Jersey, the high costsof capital punishment were one factor in those statesrecent decisions to abandon the death penalty. New

York spent about $170 million over 9 years and hadno executions.40 New Jersey spent $253 million overa 25-year period and also had no executions.41 Insuch states the cost per execution obviously cannotbe calculated, but even assuming they eventually

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reached one execution every other year, andcontinued the annual expenditures indicated in theirstudies, the cost per execution would be in the $20-to-$40 million range.

In Maryland, where a legislative commissionrecently recommended abolishing the death penalty,a comprehensive cost study by the Urban Instituteestimated the extra costs to taxpayers for deathpenalty cases prosecuted between 1978 and 1999 tobe $186 million.42 Based on the 5 executions carriedout in the state, this translates to a cost of $37 millionper execuion.

It is important to emphasize the highcosts per execution do not mean that executionsthemselves are expensive, or that pursuing oneexecution will cost tens of millions of dollars. Rather,these costs reect the reality that most capitalprosecutions never result in a death sentence, andmost death sentences do not result in an execution.The extra expenses begin mounting as soon ascounsel are appointed in a potential death penaltycase.

I worked in corrections for30 years. . . I came to believe that thedeath penalty should be replacedwith life without the possibility ofparole. I didnt reach that conclusionbecause Im soft on crime. My No. 1concern is public safety. I wish the

public knew how much the death penalty aects theirwallets.

California spends an additional $117 million each yearpursuing the execution of those on death row. Justhousing inmates on death row costs an additional$90,000 per prisoner per year above what it would costto house them with the general prison population.v

-Jeanne Woodford, former Warden of San Quentin

Death Penalty Costs Increasing

Moreover, the costs per execution are rising.In 1988, the Miami Heraldestimated that the costsof the death penalty in Florida were $3.2 million perexecution, based on the costs and rate of executionsat that time.43 But today there are more people ondeath row, fewer executions per year, and higheroverall costs, all contributing to a signicantly highercost per execution. A recent estimate by the PalmBeach Postfound a much higher cost per execution:Florida now spends $51 million a year over what itwould spend to punish all rst-degree murdererswith life in prison without parole. Based on the 44executions Florida carried out from 1976 to 2000, thatamounts to a cost of $24 million for each execution, a

signicant rise from earlier projections.44

[T]he death penalty isinecient and extravagantlyexpensive. . . . Spending scarcepublic resources on after-schoolprograms, mental health care, drugand alcohol treatment, education,more crime labs and new

technologies, or on hiring more police ocers, wouldtruly help create safer communities.vi

-Norm Stamper, 35-Year-Veteran Police Ocer;

Chief of Police, Seattle

A similar increase appears in California.In 1988, the Sacramento Bee found that the deathpenalty cost California $90 million annually beyondthe ordinary expenses of the justice system, of which$78 million was incurred at the trial level.45 But thecosts have increased sharply since then. According tothe Los Angeles Times in 2005, maintaining the deathpenalty system now costs taxpayers more than $114million a year beyond the cost of simply keeping theconvicts locked up for life. Thisgure does not countthe millions more spent on court costs to prosecutecapital cases. The Times concluded that Californiansand federal taxpayers are paying more than $250million for each execution.46

It is also telling to examine the costs ofspecic features of the death penalty system, asrevealed through state and federal studies:

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In Maryland, the 106 cases in which a deathsentence was sought but not imposed will cost thestate $71 million. This extra cost is solely due to thefact that the death penalty was pursued, even thoughthe ultimate outcome was a life or long-term prisonsentence.47

The average cost for the defense at trial in afederal death case is $620,932, about 8 times that of anon-capital federal murder case.48

In Kansas, the trial costs for death caseswere about 16 times greater than for non-deathcases ($508,000 for death case; $32,000 for non-deathcase). The appeal costs for death cases were 21 timesgreater.49

In California, the cost of conning one inmateto death row is $90,000 per year more than the costsof incarcerating the same inmate in a maximum-security prison. Death row inmates require highersecurity, often in single cells, where meals and otheressentials are brought to them daily. This is a veryinecient means of connement. With Californiascurrent death row population of 670, that amountsto over $60 million annually.50 And a new death rowis being planned, at a cost of about $400,000 perinmate.

Its hard to imagine that any of the 89 Kansaslawmakers who voted in 1994 to revive the deathpenalty for the the worst of the worst criminalsanticipated it would still be unused come 2007. Eachyear sends more men to Kansas death row, nine in allcurrently, but the legal challenges to their sentencescontinue at a glacial pace. Then there is the cost totaxpayers, averaging $1.2 million each by one tally.At some point, given the legal problems and the lackof executions, a death penalty stops making sense forKansas.vii

-Editorial, (Kansas) Wichita Eagle

Opportunity Costs

Generally, oces involved in the prosecutionor defense of criminal cases expand or contractaccording to the work that must be done. Theextra time required by death penalty cases typicallyhas caused the size and budgets of such oces toincrease, but not every cost associated with thedeath penalty appears as a line item in the statebudget. Prosecutors, who are not paid by the hour,have been reluctant to divulge the time and relatedexpenses reecting their part in capital cases. Judgesand public defenders are usually salaried employeeswho will be paid the same amount whether assignedto death penalty cases or other work. But it wouldbe misguided not to include the extra time that

pursuing the death penalty takes compared to casesprosecuted without the death penalty in calculatingcosts.

If it takes 1,000 hours of state-salaried workto arrive at a death sentence and only 100 hoursto have the same person sentenced to life withoutparole, the 900 hours dierence is a state asset. If thedeath penalty is eliminated, the county or the statecan decide whether to direct those employee-hoursto other work that had been left undone, or choose tokeep fewer employees. There is anancial dimensionto all aspects of death penalty cases, and proper coststudies take these opportunity costs into account.51

The Eect of Plea Bargaining

One asserted refutation that has been oeredto the high cost of the death penalty is that thethreat of this punishment produces nancial savingsbecause defendants are more likely to accept pleabargains, thus avoiding the cost of a trial.!" However,whatever savings are produced through this ethicallyquestionable practice are overwhelmed by the costsof preparing for a death penalty prosecution even if itnever goes to tria.

Some of the most thorough cost analysesconducted over the past 15 years specically addressplea bargaining as an area that could aect thecosts of the death penalty, including those in NorthCarolina,!# Indiana,!$ Kansas,!! and California,!% though

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some considered it too speculative to measure.

These studies nevertheless concluded that the deathpenalty added signicantly to the costs of the criminaljustice system.

The dubiousness of any savings from thispractice is underscored by a federal death penaltycost study. The Judicial Conference of United Statesconcluded that the average cost of representationin federal death penalty cases that resulted inplea bargains was $192,333. The average cost ofrepresentation in cases that were eligible for thedeath penalty but in which the death penalty was notsought was only $55,772.!& This indicates that seekingthe death penalty raises costs, even when the case

results in a plea bargain. It would be far cheaper topursue murder cases if the death penalty were neveron the table, even taking some non-capital cases totrial, than to threaten the use of the death penaltyto induce a plea bargain because the legal costs ofpreparing for a death penalty case far exceed thecosts of a non-death penalty trial.

Moreover, data from some states refute thenotion that the death penalty increases the incentiveto plea bargain. Prosecutors in New Jersey said thatabolition of the death penalty there in 2007 has madeno dierence in their ability to secure guilty pleas.!'In Alaska, where plea bargaining was abolished in

1975, a study by the National Institute of Justicefound that since the end of plea bargaining, guiltypleas continued to ow in at nearly undiminishedrates. Most defendants pled guilty even when thestate oered them nothing in exchange for theircooperation.!(

In addition, the practice of charging thedeath penalty for the purpose of obtaining pleabargains is an unethical and unconstitutionalinterference with a defendants Sixth Amendmentright to trial. It risks convicting innocent defendantswho plead guilty solely to avoid the possibility of adeath sentencewhich has occurred on numerous

occasions.60

During my career, which includes 10-plus years as a

certi

ed crime scene technician, I have experiencedcountless violent crime scenes where the perpetratorsinicted horric injury, pain and suering on theirvictims. Of the accused murderers my fellow ocers andI have brought to justice, I do not believe any of themwas deterred in the least by Nebraskas death penalty.

One facet of the issue that is rarely mentioned is theeconomic cost of capital punishment . . . [these] cases arethe most expensive cases by far. . . with a cost as high as$7 million. . . . Removing the death penalty variable fromthe justice equation should reduce the overall cost.viii

-Jim Davidsaver, 20-Year Police Veteran,

Lincoln, Nebraska

Approximating the

National Costs

As noted above, it is not possible to sayprecisely how much the death penalty costs thenation as a whole. Many states have not evenattempted an evaluation of their costs. Of the stateswhere reliable estimates are available, the dieringmethodologies used, assumptions made, andapplicable statutes make generalizations dicult.The cost per execution, for example, is dependenton the number of executions a state has carried out.

Cost estimates of $20-$37 million per execution tendto come from states (such as Maryland) that have afair number of trials, but relatively few executions. Aconservative approach would be to use the NorthCarolina study, which measured actual costs fromcases in a state that is sixth in the country in carryingout executions. Their estimate of $2.16 million perexecution is probably very understated becausethe study was conducted in 1993 and costs haveincreased considerably since then.

Assuming that North Carolinas cost-per-execution is a representative gure, and using the1,150 executions that have occurred nationally sincethe death penalty was reinstated in 1976, the countryhas spent about $2.5 billion beyond the costs thatwould have been incurred if life in prison was themost severe penalty. (This cost includes cases inwhich the death penalty was soughtmaking themmore expensivebut no execution occurred.)

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If recent costs per execution measured in

Florida and Maryland are more representative of thetrue costs around the country, then the total bill forthe death penalty is likely to be as much as ten timesas high, or $25 billion.

Another approach to this same question is touse the extra costsper death sentence as the measurefor the cost of the nations death penalty. Again, theNorth Carolina study may be representative, althoughconservative. The extra costs attributable to eachdeath sentence were about $300,000. Since 1973,there have been about 7,500 death sentences in thecountry. Hence, the total net costs for the deathpenalty have been $2.25 billion, very close to the

gure computed from the execution data. Again,data from more recent studies indicate a higher costper death sentence, implying a much higher nationalbill for having the death penalty.

Can the Costs of the DeathPenalty Be Reduced?

An understandable reaction to the highcosts of the death penalty is to ask whether thereare ways it could be made less expensive, such as by1) curtailing the appeals process, or 2) limiting trial

expenses. However, the rst interferes with a criticalpart of the death penalty process and could result inthe execution of innocent defendants, and the secondcould end up costing more than the current system.

Although the appeals process is a temptingtarget for critics, it actually does not constitutemost of the death penaltys costs. In the cost studyconducted by Duke University, trial costs in NorthCarolina made up over 4 times the appeals costs foreach death sentence imposed.61 But cutting back onappeals presents another, more serious problem.

Since 1973, 138 people have been

exonerated and freed from death row.62 In manyof these cases, the appeals process was critical inoverturning an unfair conviction and allowing a newtrial at which the defendant was acquitted. In othercases, even the appeals failed to nd evidence of

innocence or a constitutional aw in the process that

led to conviction, but the process at least allowed forthe passage of time, during which exonerating DNAevidence was discovered and tested, or the personactually responsible for the crime was identied. Theaverage time between sentencing and exonerationwas 9.8 years. If the appeals process were truncatedthere might not have been time for the mistakes tobe found or new evidence to emerge. Most of theinnocent people who were sentenced to death wouldhave been executed before they could demonstratetheir conviction was a mistake.

The same can be said for attempts toshortchange the defense in capital trials. Good

lawyers who are given adequate resources often canuncover the evidence that leads to the acquittal of aninnocent defendant.

Good representation and thorough appealsare also necessary for guilty clients. It is impossibleto know before the process has run its course whois guilty and who is innocent. In addition, the deathpenalty is supposed to be given to only the worstoenders. Qualied defense lawyers are needed toensure that juries have all the information they needto make an informed sentencing decision. In 2003the American Bar Association issued new guidelinesfor the appointment and performance of defense

counsel in capital cases.63

These guidelines wereintended to establish a national standard of practice,and courts that ignore them risk reversal at a latertime.

From a cost perspective, the reasons forproviding a full defense are also compelling. Inrecent years the U.S. Supreme Court has overturnedseveral death penalty cases because of inadequaterepresentation.64 The thrust of these decisions isthat death penalty cases require defense attorneysto investigate every aspect of their clients historyin order to prepare an adequate defense on penaltyas well as guilt. This implies states should hire

experienced attorneys who know how to conductsuch investigations, and give them the resources tocarry them out. If not, the case may have to be doneover, requiring all the expenses of a death penaltytrial a second time. Cost studies of the death penalty

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indicate that 70% of the expenses occur at the trial

level. Two trials greatly increase the cost of the deathpenalty, especially when the passage of time makesre-trial more dicult. If a new conviction or sentenceis handed down, a second appeals process must alsobeconducted.

Families of Homicide

Victims and Missing Personsbelieves the death penaltyas it ispracticed in Coloradois a waste

of taxpayers money. It is no deterrent to those whocontemplate murder. We propose to eliminate the deathpenalty and use those funds to investigate our unsolved

murders. The most e

ective deterrent is the certainty ofapprehension. Too many people are getting away withmurder.ix

-Mission Statement, FOHVAMP 2009

Using the Death Penalty Less!Could states reduce the cost of the death

penalty by seeking death sentences less frequently?Fewer trials and appeals, and fewer people on deathrow, would reduce the overall costs of the deathpenalty. However, in almost all states the decision

whether to seek the death penalty is not centralizedbut is made by the District Attorney of each county.These prosecutors typically have wide discretion onwhether to seek the death penalty. Although it ispossible to write more restrictive capital punishmentstatutes, the tendency has been for states to expandtheir laws to make more crimes eligible for the deathpenalty.65 If the murder of a police ocer makes adefendant death-eligible, the high-prole murder of are ghter or teacher may well result in those crimesbecoming death-eligible as well. Once enacted, such

expansions are hard to rescind.

Nevertheless, even without changes in

the law restricting the types of murder eligible forthe death penalty, death sentences have droppeddramatically since 2000. In the 1990s, the annualnumber of death sentences averaged close to 300,but in recent years the number is down to 115, a 62%

drop. Skeptical juries concerned about innocence66

and the availability of life without parole sentenceshave played a part in this decline. The rising costs ofthe death penalty have caused some prosecutors notto seek the death penalty or to accept plea bargains.67The current economic climate could accelerate thistrend.

Ironically, a death penalty that is rarely usedraises its own concerns. Are the few people chosenfor execution really the worst of the worst, or was theirsentence just the unfortunate product of ineectiverepresentation or their crime being committed ina high-death penalty county? Do the rationales ofdeterrence and retribution make sense in a system

where only a tiny fraction of eligible criminals in onlya few states receive the ultimate punishment?

An article in the Wall Street Journalnotedthat in states where counties are chiey responsiblefor prosecuting capital cases, the expenses can put anextraordinary burden on local budgets comparable tothat caused by a natural disaster.68 Katherine Baickerof Dartmouth concluded that capital cases have alarge negative shock on county budgets, oftenrequiring an increase in taxes. She estimated theextra expenses for counties to be $1.6 billion over a15-year period.69

The net eect of this burden on countiesis a widely disparate and highly arbitrary use of thedeath penalty. Rich counties that can aord the highcosts of the death penalty may seek this punishmentoften, while poorer counties may never seek it,settling for life sentences instead. In some areas, thisgeographical disparity can have racial eects as well,depending on the geographical location of racialminorities within the state. Some counties haveapproached the brink of bankruptcy because of onedeath penalty case that had to be repeated two orthree times.70

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Why Does the Death Penalty

Cost So Much?The principal reason why the death penalty is

so expensive can be summed up in one phrase: deathis dierent.71 Whenever the government seeks toexecute a human being, the legal system is requiredby a long line of U.S. Supreme Court precedent,buttressed by American Bar Association guidelines,to apply a more methodical and reliable process. Theolder, less guided form of capital punishment, wasstruck down as unconstitutional in 1972.72

The stakes in death penalty cases havealways put more burdens on the state compared

to other parts of the criminal justice system. Longbefore states were required to appoint counsel forindigent defendants in ordinary criminal cases,the appointment of counsel was deemed essentialin death penalty cases.73 Congress required theassignment of two attorneys learned in the law infederal capital cases as far back as the First Congressin 1790.74

The exposure of so many mistakes in deathpenalty cases in recent years has shown that the idealof heightened due process in capital cases has oftenbeen ignored. It has become clear that a shoddy,less expensive death penalty risks innocent lives. It

can also make the punishment of death dependon whether a state is willing to provide adequaterepresentation. The choice today is between a veryexpensive death penalty and one that risks fallingbelow constitutional standards.

Costs alone may not carry the day in decidingthe future of an institution as entrenched as capitalpunishment. The costs of the death penalty mustbe compared to other ways of achieving a safercommunity. The money saved by giving up the deathpenalty is desperately needed elsewhere: for hiringand training police, solving more crimes, improvingforensic labs and timely DNA testing, and crime

prevention.

Stages of a Capital Case

Every stage of a capital case is more time-consuming and expensive than in a typical criminalcase. If the defendant is found guilty of a capitalcrime, an entire separate trial is required, with newwitnesses and new evidence, in which the jury mustdecide whether the penalty should be death or lifeimprisonment without the possibility of parole. Twoattorneys are often appointed for the defense, sothat issues of guilt and sentencing can be separatelyexplored. The prosecution has to respond with equalor greater resources since they have the burden ofproof.

Experts NeededExperts are needed to examine the forensic

evidence and to explore the mental health of thedefendant. For every expert on one side, the otherside needs a rebuttal. In a thoroughly defended case,mitigating and aggravating evidence is compiledand examined. Mitigation experts must probeaspects of the defendants life from birth to thepresent. Relatives, co-workers, supervisors, teachers,and doctors are interviewed. The state matches thistestimony with evidence of aggravating factors andexpert testimony denigrating the defendants past.

The mental health of the defendant atthe time of the crime may become a major issue,with psychiatrists called to testify. If a defendantis mentally retarded, he cannot receive the deathpenalty, though that determination alone can result inconsiderable expense. If at any time he was mentallyill, that will be a mitigating factor to be presented tothe jury. Most of the preparation for this presentationmust be done in advance, whether or not asentencing trial actually turns out to be necessary. (Ofcourse, in states that are not so thorough, the costswill come later when verdicts are overturned andtrials have to be done over.)

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Jury Selection

Jury selection in a capital case can takeweeks or even months.75 Each persons positionon the death penalty is explored in detail by thejudge, the prosecutor and defense attorney. Suchquestioning about the eventual punishment of thedefendant would not be allowed in a non-deathpenalty case, and it makes jury selection take muchlonger in capital cases. Potential jurors must becarefully questioned about their willingness to votefor the death penalty or life imprisonment; anyprospective juror who cannot fairly consider bothsentencing alternatives is excluded from serving.

Jurors may also be struck for no stated

reason. Although race and gender are improperconsiderations in selecting a jury, they arestatistically related to peoples views on the deathpenalty. Hence, jury selection can involve lengthydisputes about whether a particular juror was strucklegitimately because of her doubts about the deathpenalty or unfairly because of her race. With regard tocosts, the end result is that jury selection costs muchmore in capital cases because it takes much longer.

Appeals

Death penalty trials often conclude with no

death sentence. The defendant may be acquitted orsentenced to prison. However, the process of gettingto that point is much more expensive because thecase was prosecuted as a capital case. If a deathsentence is imposed, there are mandatory appeals.Unlike in ordinary criminal cases where the main focusof an appeal is the conviction, capital defendantsare entitled to full review of their death sentence aswell. A reversal can mean a new sentencing trial withanother jury, more witnesses, and another chancethat no death sentence will be imposed. Additionalappeals may look at constitutional challenges,such as the eectiveness of defense counsel or thewithholding of any evidence that should have been

turned over before trial. The entire appeal processcan take 15 or 20 years before an execution. Theaverage time between sentencing and execution in2007 was 12.7 years, the longest of any year sincethe death penalty was reinstated.76 In 2006, over 400inmates around the country had been on death row

for 20 years or more, with some cases going back to1974. Despite the length of this process, however, it isthe pre-trial and trial costs that make up the majorityof death penalty expenses, not the appeal.

Time on Death Row

The time that inmates spend on death rowalso adds to the costs of the death penalty becauseof the extra security required compared to normalprisons. In California, a legislative commissionconcluded that it costs the state an extra $90,000for each death row inmate per year compared to

the costs of the same inmate housed in generalpopulation. With over 670 inmates on death row, thatamounts to an additional yearly cost of $60 millionsolely attributable to the death penalty.77

Expensive Life Sentences

It is important to note that all of theseexpenses are incurred in the many death penaltycases that never result in an execution. Sentencesor convictions can be reversed, defendants may dieof natural causes or suicide, governors occasionallygrant clemency, and entire statutes can be overturnedby the courts. This often means that a life sentence isthe end result, but only after a very expensive deathpenalty process. According to one comprehensivestudy, 68% of death penalty cases are reversed atsome point in the appeals process. When these casesare retried without the defect that led to the reversal,82% result in a sentence of life or less.78

This is an extremely wasteful process. Themost prevalent cause for reversal on appeal is theinadequacy of the trial counsel. Frequently, this is theresult of courts trying to cut costs by short-changingdue process. States that appoint inexperiencedlawyers at low fees, or which deny the experts andresources necessary for thorough representation,may end up paying for two trials, with the secondone resulting in a life sentence. In most cases a lifesentence could have been obtained at the outset ofthe case for a fraction of the cost. It is thepursuitofthe death penalty that is so expensive.

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The higher costs of the death penalty

processlengthy trials, complicated appeals withmany reversals, the higher security of death rowareunavoidable and likely to increase. Death sentencesand executions may continue to decline. The longerthe death penalty is retained, the higher the bill willbe for nebulous results. At the same time, programswith proven track records in reducing crime andimproving society will go unfunded.

What is Society

Receiving in Return?

Costs are only part of a cost-benet analysis.

If the death penalty has no clear and measurablebenets, then its high costs are even less defensible.As discussed above, neither police chiefs, norcriminologists, nor the American public believe thatthe death penalty serves as a better deterrent tomurder than a sentence of life in prison.

The retribution that is imposed in the tiny

fraction of cases that result in an execution comparedto the number of murders renders this purposemeaningless as well. In reality, executions are rare anddepend more on factors such as geography, a statesspending on capital defense, and other arbitraryfactors than on the severity of the oense.

Since the death penalty was reinstatedin 1976, 41 of the 50 states have had either noexecutions or an average of less than 1 executionper year.79 Of the remaining 9 states, only 5 haveaveraged more than 2 executions per year and only1 (Texas) averaged more than 3. By contrast, theaverage number of murders in the U.S. per year

during this time was approximately 19,000.80

Abstractjustications for the death penalty such as retributionand deterrence, which have been widely criticizedon other grounds, have little meaning when apunishment is used so rarely and unpredictably.!

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Conclusion

It is doubtful in todays economic climate thatany legislature would introduce the death penaltyif faced with the reality that each execution wouldcost taxpayers $25 million, or that the state mightspend more than $100 million over several years andproduce few or no executions. Surely there are morepressing needs deserving funding, such as retainingpolice ocers, rebuilding roads and bridges, creatingjobs, providing health care for children, and keepinglibraries open. Yet that is precisely the dilemma thatmany states with the death penalty now face.

Referring to the costs of the death penaltyoften evokes a response that money is irrelevant

when it comes to justice and a safer society. But thedeath penalty is not essential to those goals, as the15 states in the U.S. and the growing majority ofcountries in the world without the death penalty havedemonstrated. Even states with the death penaltyrarely use it. Justice can be achieved far more reliablyand equitably without the death penalty. There aremore ecient ways of making society safer.

By pursuing life without parole sentencesinstead of death, resources now spent on the deathpenalty prosecutions and appeals could be used toinvestigate unsolved homicides, modernize crime labs,and expand eective violence prevention programs.81

-Letter signed by 30 law enforcement ocials

to the California Commission on the Fair

Administration of Justice

The economic crisis that began in 2008continues, and its impact on states will be felt foryears to come. There is no reason the death penaltyshould be immune from reconsideration, along with

other wasteful, expensive programs that no longermake sense. The promised benets from the deathpenalty have not materialized. Deterrence is notcredible; vengeance in the name of a few victims in ahandful of states is both divisive and debilitating. Ifmore states choose to end the death penalty, it willhardly be missed, and the economic savings will besignicant. The positive programs that can be fundedonce this economic burden is lifted will be readilyapparent. Such an approach would be smart on crime.

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REFERENCES

. E. Holder, Speech at the American Bar Association Convention,Aug. 3, 2009; available at U.S. Dept. of Justice http://www.usdoj.gov/ag/speeches/2009/ag-speech-090803.htm.

. J. Abbott, Less money, more pain and injustice, Fort Worth Star-Telegram, January 20, 2008 (op-ed).

. R. Samuels, Capital Punishment is a costly mistake, Contra Costa

Times, Dec. 19, 2008 (op-ed).

. See, e.g., A. Goodnough, States Turning to Last Resorts in BudgetCrisis, N.Y. Times, June 22, 2009, at A1.

. See, e.g., E. McNichol & I. Law, State Budget Troubles Worsen,Center on Budget and Policy Priorities, Feb. 10, 2009.

. Death sentences have declined 60% since 2000. Executions

have also declined. The number of people executed in 2008 wasthe lowest in 14 years. See Death Penalty Information Center[DPIC], The Death Penalty in 2008: Year End Report, http://www.

deathpenaltyinfo.org/2008YearEnd.pdf.

. See id. (95% of executions in 2008 were in the South).

. RT Strategies, Omnibus Poll and The Law Enforcement LeadershipPoll, Oct. 29-Nov. 14, 2008 [hereinafter, Police Poll]. The margin oferror for the poll was +5.1 percent.

. Police Poll, question 3.

. Id. at question 4.

. Id. at question 6c.

. Id. at question 7c.

. Id. at questions 4 and 8.






. M. Radelet & T. Lacock, Do Executions Lower Homicide Rates?The Views of Leading Criminologists, 99 Journal of Criminal Law

and Criminology 489 (2009).

. Id. at 504.

. See, e.g., J. Donohue & J. Wolfers, Uses and Abuses of Empirical

Evidence in the Death Penalty Debate, 58 Stanford Law Review791, 843 (2005) (Aggregating over all of our estimates, it is entirely

unclear even whether the preponderance of evidence suggeststhat the death penalty causes more or less murder.).

. K. Johnson, Death Penalty Repeal Fails in Colorado, N.Y. Times,

May 5, 2009.

. S. Karnowski, Poor economy hits courts, hurts programs for

poor, Associated Press, Jan. 23, 2009 (Google-hosted news).

. C. Johnson, Double Blow for Police: Less Cash, More Crime,Washington Post, Feb. 8, 2009, at A3.

. Id.

. T. Baldas, Cost-cutting hits courts, National Law Journal, Feb. 16,2009.

. See Karnowski, note 23 above.

. E. Eckholm, Interest Rate Drop Has Dire Results for Legal Aid,

N.Y. Times, Jan. 19, 2009.

. Id.

. K. Bohn, Police face cuts as economy falters, CNN.com, Oct. 23,

2008.

. See discussion below in text, pp. 12-14.

. Scott Sandlin, Death Penalty Out in Guard Killing, Albuquerque

Journal, April 4, 2008.

. See D. Baker, NM Gov Reconsiders Death Penalty, AssociatedPress, February 16, 2009. The governor signed the bill abolishingthe death penalty on March 18, 2009.

. Shannon McCarey, Georgia Senate slashes money for public

defenders, Macon Telegraph, February 20, 2008; see also N.Y. Times,September 7, 2007.

. Jacksonville Daily Record, September 13, 2007.

. In one of the most recent cost studies, The Urban Instituteestimated the additional cost of a death penalty trial in Maryland to

be $1.9 million. J. Roman et al., The Cost of the Death Penalty inMaryland, The Urban Institute (March 2008), at 2.

. In the Maryland study, 56 death sentences were handed downout of 162 cases in which the death penalty was sought. Id. at 3.

This does not even account for the many cases in which the deathpenalty was originally sought, incurring many additional expenses,

but then settle without a trial or death sentence being imposed.

. Of the 56 death sentences in Maryland, ve have resulted inexecutions.

. See California Commission on the Fair Administration of Justice,http://www.ccfaj.org/rr-dp-ocial.html, June 30, 2008 [hereinafter

California Commission].

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. See, e.g., D. Wise, Capital Punishment Proves to Be Expensive,New York Law Journal, April 30, 2002, at p.1; see also Costly Price

of Capital PunishmentCase Shows Eort Expended Before theState takes a Life, Albany Times-Union, Sept. 22, 2003 (over $160

million spent in 7 years); N.Y. Times, Feb. 28, 2005 (citing costs of$170 million).

. See Newsday, Nov. 21, 2005.

. See J. McMenamin, Death penalty costs Md. more than life term,Baltimore Sun, March 6, 2008. The study included projected future

costs since many of the cases prosecuted during that time are stillnot complete and are incurring additional expenditures.

. D. Von Drehle, Bottom Line: Life in Prison One-sixth asExpensive, Miami Herald, July 10, 1988, at 12A.

. S. V. Date, The High Price of Killing Killers, Palm Beach Post, Jan.

4, 2000, at 1A.

. S. Maganini, Closing Death Row Would Save State $90 Million a

Year, Sacramento Bee, March 28, 1988, at 1.

. Los Angeles Times, March 6, 2005 (California has now had 13executions).

. J. McMenamin, see note 42 above.

. Oce of Defender Services of the Administrative Oce of theU.S. Courts, Update on Cost, Quality, and Availability of Defense

Representation in Federal Death Penalty Cases, June 2008;prepared by Jon Gould and Lisa Greenman.

. Performance Audit Report: Costs Incurred for Death PenaltyCases: A K-GOAL Audit of the Department of Corrections, Kansas

(2003).

. California Commission, see note 39 above, at 70.

. See, e.g., P. Cook, The Costs of Processing Murder Cases in NorthCarolina, Duke University (May 1993). This is one of the mostcomprehensive cost studies conducted in the country. It included

the costs of the extra time spent by prosecutors, judges, and otherpersonnel on death penalty cases and concluded that the death

penalty costs North Carolina $2.16 million per execution overthe costs of a non-death penalty system imposing a maximum

sentence of imprisonment for life.

. See, e.g., K. Scheidegger, The Death Penalty and Plea Bargaining

to Life Sentences, Working paper 09-01, at 13, Criminal JusticeLegal Foundation (Feb. 2009) (repeal of the death penalty would

likely result in fewer pleas to life or long sentences, requiring thatprosecutors either take more cases to trial at a substantialnancial

cost or accept bargains to lesser sentences at a substantial cost to

public safety.).

. See P. Cook, note 51 above.

. Indiana Criminal Law Study Commission, January 10, 2002.

. See note 49 above.

. See California Commission, note 39 above.

. See, Federal Death Penalty Cases: RecommendationsConcerning the Cost and Quality of Defense Representation,

Judicial Conference of the United States (May 1998). Theprosecution costs in death cases were 67% higher than thedefense costs, even before including the investigative costs of law

enforcement agencies.

. R. Lardini, A year later, state assesses justice without deathpenalty, New Jersey Star Ledger, December 15, 2008.

. R. Fine, Plea Bargaining: An Unnecessary Evil, in CriminalJustice?, Robert Bidinotto, ed. Irving-on-Hudson: Foundation for

Economic Education, 1996; cited in Plea Bargaining: EconomicCosts and Benets, undergraduate paper for The Economics of the

Law, Washington University in St. Louis, December 5, 1996; ww w.dianahsieh.com/undergrad/pb.html.

. See, e.g., P. Hammel, Pardons granted to

ve in murder theydidnt commit, Omaha World-Herald, January 27, 2009. The

defendants who were pardoned had confessed to the crime toescape the threat of the death penalty. We were all scared of it.

They were all threatening us with it, said James Dean, one of theve who was exonerated. Ada Joann Taylor, another defendant,

said, They told me they wanted to make me the rst female ondeath row. Id.

. See P. Cook, note 51 above, at p. 97, table 9.1.

. See DPIC, http://www.deathpenaltyinfo.org/innocence-and-death-penalty (visited Aug. 11, 2009).

. ABA Guidelines for the Appointment and Performance ofDefense Counsel in Death Penalty Cases, 31 Hofstra Law Review

913 (2003) (revised edit.).

. See, e.g., Wiggins v. Smith, 539 U.S. 510 (2003); Rompilla v. Beard,545 U.S. 374 (2005).

. See J. Krichmeier, Aggravating and Mitigating Factors: TheParadox of Todays Arbitrary and Mandatory Capital Punishment

Scheme, 6 William & Mary Bill of Rights Journal 345, 397 (1998).

. See R. Dieter, A Crisis of Condence: Americans Doubts Aboutthe Death Penalty, DPIC (2007).

. See, e.g., T. Coyne, Indiana Executions at slowest pace in15 years, Chicago Tribune, June 14, 2009 (citing prosecutors

hesitations due to the high costs of the death penalty).

. R. Gold, Counties Struggle with High Cost of Prosecuting Death-Penalty Cases, Wall St. Journal, Jan. 9, 2002.

. K. Baicker, The Budgetary Repercussions of Capital Convictions,National Bureau of Economic Research, Working Paper 8382, July

2001.

. See generally, R. Dieter, Millions Misspent: What Politicians DontSay About the High Costs of the Death Penalty, (revised edit., 1994)

(available from DPIC).

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. See Gregg v. Georgia, 428 U.S. 153, 188 (1976) (penalty of death

is dierent in kind from any other punishment).

. See Furman v. Georgia, 408 U.S. 238 (1972).

. Powell v. Alabama, 287 U.S. 45 (1932) (Scottsboro boys case).

. 1 Stat. 118-19, sec. 29 (1790).

. See, e.g., B. Miller, D.C. Case Has Court Struggling for a Jury,

Washington Post, April 29, 2001, at C1 (after 5 weeks of juryselection in a capital case, jury was still not complete).

. U.S. Dept. of Justice, Bureau of Justice Statistics, CapitalPunishment, 2007 Statistical Tables, at Table 11 (available at

http://www.ojp.usdoj.gov/bjs/pub/html/cp/2007/cp07st.htm).

. California Commission, see note 39 above, at 70.

. See J. Liebman, et al., Capital Attrition: Error Rates in CapitalCases, 1973-1995, 78 Texas Law Review 1839 (2000). The authornotes that in an additional 7% of the cases there is not even a

conviction after retrial.

. See DPIC, http://www.deathpenaltyinfo.org/executions-united-states, (June 2009).

. See U.S. Dept. of Justice, FBI Yearly Uniform Crime Reports, http://www.fbi.gov/ucr/ucr.htm (2009).

. See Death Penalty Focus Press Release at http://www.

deathpenalty.org/article.php?id=212 (March 27, 2008).

REFERENCES FOR BOXES

i. J. Abbott, Less money, more pain and injustice, Fort Worth Star-Telegram, January 20, 2008 (op-ed).

ii. J. Connor, Death Penalty drains justice system resources, BillingsGazette, March 22, 2009 (op-ed).

iii. J. Van de Kamp, California cant aord the death penalty, LosAngeles Times, June 10, 2009 (op-ed).

iv. M. OMalley, Why I Oppose the Death Penalty, Washington Post,

February 21, 2007 (op-ed).

v. J. Woodford, Death Row Realism, Los Angeles Times, October 2,2008) (op-ed).

vi. N. Stamper, Death penalty wastes money, while failing to reducecrime, Mercury News, Nov. 19, 2007 (op-ed).

vii. Editorial, Wichita Eagle, Sept. 13, 2007.

viii. J. Davidsaver, (Lincoln) Journal-Star, Mar. 25, 2007 (op-ed).

ix. Families of Homicide Victims and Missing Persons, http://www.unresolvedhomicides.org/about.html (2009).

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The Death Penalty Information Center (DPIC) is a non-prot organization serving the media and the public with analysis andinformation on issues concerning capital punishment. The Center provides in-depth reports, issues press releases, conducts

briengs for journalists, and serves as a resource to those working on this issue. The Center is funded through the generosityof individual donors and foundations, including the Roderick MacArthur Foundation, the Open Society Institute, and the

European Union. The contents of this document are the sole responsibility of DPIC and can under no circumstances beregarded as reecting the position of the European Union or other donors.

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