Cost of Death: A Billion Dollars and Counting

Since California restored capital punishment in 1977, and after hundreds of death-penalty trials, not a single murderer sentenced to die in Los Angeles County has been executed. In those 16 years, California has spent roughly a billion dollars on a pipeline that has executed only one man: Robert Alton Harris. David Edwin Mason, who was gassed at San Quentin last Tuesday, volunteered to die, hardly a ringing endorsement of the system.

The simplistic answer is to blame the lawyers and the legal system. Ironically, both are ill-founded.

The lawyers are doing exactly what their clients have instructed them to do. If you go to a tax lawyer, your instructions are straightforward: “Use the legal system to stop the government from taking my money.” In death-penalty litigation, it is “Stop the government from taking my life.”

Furthermore, when the death penalty was restored, Californians thought it important that the trials be fair and the appellate review thorough. The rationale was simple: It is not OK to kill people unless they were convicted at a fair trial.

Fair trials and appeals are expensive. You can’t blame the judges. Of every 10 death-penalty cases filed, only one results in a verdict of death. That decision is made by the public. Only a jury can send a man to Death Row. When they do, it will take the California Supreme Court between four to six years to hear the appeal.

As a general matter, the expenses break down as follows: A courtroom costs the taxpayer about $6,500 a day to run, including salaries for the judge, staff, security, overhead, depreciation, maintenance, etc. If the average death-penalty trial runs 50 days (counting motions, most do), the baseline cost is $325,000. Adding the salaries of one or two prosecutors, two investigating officers, support staff, coroners, laboratories, law clerks and “indirect costs” that the police and county spend to support the prosecution--and you easily have another $400,000 to a half million (which the prosecution always understates to the press). The defense team consists of an attorney (occasionally two), an investigator, a pathologist, psychiatrist or psychologist, forensics and other costs, depending on facts. Cost: $300,000-$500,000, depending on the case.

Capital-case judges, almost all of whom were career prosecutors, are keenly aware of defense costs (which they audit), but have no idea of real prosecution costs, because the district attorney does not pay “square-foot rent,” “telephones” or other overhead, as in the private sector. Moreover, the dollar figures can be moved around to suit the political or bureaucratic climate.

If the defendant receives a sentence of death, the cost of his appeals and habeas corpus writs can run into hundreds of thousands of dollars, and, of course, housing a Death Row prisoner costs far more than the $20,000 a year spent on the average state inmate.

Finally, before the defendant is executed, the case will be reviewed by seven justices of the state Supreme Court, nine justices of the U.S. Supreme Court (first time on direct appeal--almost always denied), a federal district judge (federal habeas corpus ), a three-judge panel of the federal 9th Circuit Court of Appeals, the 9th Circuit Court again on rehearing en banc (at least 11 judges), and finally back to the U.S. Supreme Court. Cost: estimated to be between $3.5 million and $4.5 million per Death Row defendant.

There is another cost. Death-penalty cases now consume 50% of the state Supreme Court’s time. As a result, there is an enormous number of unresolved legal issues affecting civil law that the court no longer has time to decide. So, in addition to wasting a billion dollars, the death penalty also prevents the courts from deciding civil disputes in which more billions of dollars are at stake.

Still, death-penalty proponents will be pleased to know that the state Supreme Court affirms 95% of all death judgments. Unfortunately, some of these affirmances stretch credulity so far that Justice Stanley Mosk has taken to writing dissents for his “federal brethren,” which is the legal equivalent of calling down artillery on your own position.

Texas, the killingest of all states, only affirms 70% of its death-penalty judgments. The Lucas court is every bit as adept at affirming as the Bird court was at reversing. Indeed, there is a case pending argument in the U.S. Supreme Court that California’s death penalty is essentially lawless, having swung from 90% reversals to 95% affirmances based on nothing more than a change in court personnel. As a result, the federal district courts and 9th Circuit Court of Appeals now have their own onslaught of death-penalty cases challenging the constitutionality of the myriad “harmless error” decisions by the state Supreme Court. (My favorite is the Marquez case, in which a majority of state justices ruled that defense’s failure to call 17 credible alibi witnesses that Marquez was in rural Mexico at the time of the murder was “harmless error.”)

The economic burden of a capital case on county government can be crushing. Mendocino and Imperial counties, among others, were taken to the verge of bankruptcy by capital cases in their venues. Were there any payoff for this extreme expense, perhaps we could measure whether executing Defendant X was worth closing down a county library or dismissing 20 nurses from a county hospital. But the calculus doesn’t work that way, because we close the library, fire the nurses and Defendant X does not go to the gas chamber, even if the judge and jury send him there.

For those who believe life imprisonment without parole costs too much, government figures indicate the cost to execute a man is five times greater than to send him to prison forever.

“Can’t we fix it?” Yes and no. There is a trade-off: fairness and certainty for speed and efficiency.

The Los Angeles Superior Court has adopted a policy of reducing fees paid to defense attorneys and denying them experts whenever possible. Until now, death- penalty trials were the last bastion where a fair trial was considered more important than a fast trial. That policy has now been abandoned as too expensive. Speed kills, but it does so rather indiscriminately.

Is it worth it to spend millions of dollars every week on a system that cripples the courts, fails to execute the guilty and occasionally kills the innocent? Or can’t we just give these people life-long imprisonment and find a more sensible way to spend a billion dollars?*