States weigh cost of capital punishment

To New Mexico Atty. Gen. Gary King, a prison guard’s slaying cried out for the death penalty: Inmates had stabbed him two dozen times.

But when the defense ran out of money, the state Supreme Court ruled that King could not seek a death sentence until the lawyers were paid -- approximately $200,000 for each of the three defendants, King said. When state legislators refused to allocate more money, prosecutors dropped their pursuit of the death penalty.

In January, one of the inmates was sentenced to 54 years in prison.

“Unless the Legislature is willing to appropriate a lot of money for the defense, then I think that the death penalty is pretty well negated in New Mexico,” King said in an interview.

“If we had death penalty cases on the horizon, there would be a big discussion about whether we could take a budget cut,” he added. “We can’t just absorb that in our standard budget.”

Debate over the death penalty has undergone shifts over the years. During the last decade, the discussion has focused on accuracy and fairness, with exonerations of dozens of death row inmates sparking calls for reform and abolition. Now, with the nation’s economy slumping, the issue is cost.

Several states have introduced measures to abolish the death penalty, many of them citing its cost. New Mexico’s Legislature voted Friday to do so.

In Colorado, a bill would take money usually spent on capital cases and use it to help clear unsolved cases. In Kansas, a legislator wants to use money for capital cases to close a budget shortfall.

“In a way, we have life without parole, but we’re paying more money to achieve it,” said state Sen. Carolyn McGinn, a Republican, noting that Kansas has not executed an inmate in decades.

New Jersey cited cost as one factor when it abolished the death penalty in 2007, and a commission that studied the death penalty in Maryland recently cited cost as well.

In Georgia, the public defender system is underfunded and in crisis after the death penalty trial of a man convicted of killing a judge and three others during his 2005 escape from an Atlanta courthouse. The case cost more than $2 million. The man, Brian Nichols, received a life sentence.

In California, legislators are wrestling with the cost of maintaining the nation’s largest death row even though the state has executed only 13 inmates since 1976. Officials are also debating construction of a new $395-million death row prison that many lawmakers say the state cannot afford.

And in Louisiana, the Orleans Parish district attorney’s office has considered filing for bankruptcy protection after it was ordered to pay $15 million to John Thompson. He sued prosecutors after he was acquitted of murder and freed from death row; a jury found that prosecutors had engaged in misconduct.

“This is a time where if you have a government program and it’s not producing a lot but it’s costing a lot, then it’s ripe for examination,” said Richard Dieter, executive director of the nonprofit Death Penalty Information Center. “It’s not like libraries, which you need, or other crucial programs. This is a program that’s not really producing.”

The scrutiny of the costs of capital punishment comes as the death penalty is in decline. Prosecutors are obtaining fewer death sentences -- in part because more states offer juries the option of life without the possibility of parole -- and states are carrying out fewer executions.

Many of the costs are built into the system and cannot be changed. They include the costs of specially trained defense lawyers, mental health and mitigation experts, and a longer course of appeals. And there are the many added costs of housing death row prisoners.

“As long as you have a death penalty system, you’ll have regular expenses. And those expenses aren’t getting cheaper,” Dieter said. “There’s a maintenance cost to the death penalty.”

Death penalty cases can have an outsized effect in smaller counties, which tend to have smaller budgets. There, a case can cost hundreds of thousands of dollars -- close to $1 million if the issues are particularly complicated -- and force officials to cut programs to fund the prosecution.

Prosecutors say they have to take that into consideration, although it is not the only factor.

“Any good prosecutor is going to have to consider cost, especially in smaller, rural counties,” said R. Lowell Thompson, district attorney for Navarro County in Texas, south of Dallas.

“But cost isn’t the only consideration. Our job is to seek justice, and we have to carry that out.”

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smmills@tribune.com