Will ending the death penalty save California more money than speeding up executions?
Past efforts to repeal the death penalty in California have centered on moral or ethical objections. This year, proponents of Proposition 62, which would replace the punishment with life in prison without parole, are focusing on economics.
Prominent supporters of the measure have repeatedly pointed out that the state’s taxpayers have spent $5 billion on the executions of only 13 people in almost 40 years. Online ads have urged voters to end a costly system that “wastes” $150 million a year.
“Sometimes, something is so broken it just can’t be fixed,” a voiceover says in one commercial, as a blue-and-white china vase shatters to the ground.
“Let’s spend that money on programs that are proven to make us safer,” a crime victim pleads in another.
But as voters weigh two dueling death penalty measures on the Nov. 8 ballot — one to eliminate executions, another to speed them up — researchers are at odds over the actual costs and potential savings of each. Independent legislative analysts, meanwhile, believe Proposition 62 could save taxpayers millions, while concluding that the fiscal impact of Proposition 66’s attempt to expedite death sentences is unknown.
Death penalty cases are often the most expensive in the criminal justice system because the costs associated with capital punishment trials and the incarceration of death row offenders are vastly higher.
The expenses begin to accrue at the county level. Capital cases require two trials, one to decide the verdict and another the punishment. They require more attorneys, more investigators, more time and experts and a larger jury pool.
The costs grow as the state must pay to incarcerate inmates during a lengthy appeals process: The average cost of imprisoning an offender was about $47,000 per year in 2008-09, according to the nonpartisan state legislative analyst’s office. But housing a death row inmate can lead to an additional $50,000 to $90,000 per year, studies have found.
Paula Mitchell, a professor at Loyola Law School who is against the death penalty and has advised the Yes on Prop. 62 campaign, puts the cost of the entire death penalty system since 1978 at about $5 billion.
That figure, updated from data compiled in a 2011 report, includes 13 executions since the death penalty was reinstated through a 1978 ballot measure; it was suspended in 2006 because of legal challenges over injection protocols. The figure also includes the cost of trials, lengthy appeals and the housing of nearly 750 inmates on California’s death row.
The initial study estimated taxpayers spent $70 million per year on incarceration costs, $775 million on federal legal challenges to convictions, known as habeas corpus petitions, and $925 million on automatic appeals and initial legal challenges to death row cases.
Mitchell and other researchers said Proposition 62, which would retroactively apply life sentences to all death row defendants, would save the state most of that money.
“It is sort of a fantasy that this system is ever going to be cost efficient,” said Mitchell, who has been named the university’s executive director of the Project for the Innocent.
But proponents of Proposition 66 argue the system can be reformed. The ballot measure would designate trial courts to take on initial challenges to convictions and limit successive appeals to within five years of a death sentence. It also would require lawyers who don’t take capital cases to represent death row inmates in an attempt to expand the pool of available lawyers.
In an analysis for its proponents, Michael Genest, a former budget director for Gov. Arnold Schwarzenegger, contends such changes would save taxpayers $30 million annually in the long run. Proposition 62, in comparison, would cost taxpayers more than $100 million due to this “lost opportunity” over a 10-year period.
But independent researchers with the legislative analyst’s office found plenty of factors could increase or reduce the chances of either ballot measure saving taxpayers money.
Overall, they found Proposition 62 was likely to reduce net state and county costs by roughly $150 million within a few years.
The actual number could be partially offset if, without the death penalty, offenders are less inclined to plead guilty in exchange for a lesser sentence in some murder cases. That could lead to more cases going to trial and higher court costs, according to the legislative analyst’s office.
Yet over time, the state could see lower prison expenses, even with a larger and older prison population, since the costs of housing and supervising death row inmates is much higher than paying for their medical bills, analysts said.
“If Prop. 62 goes into effect, they can be housed like life-without-parole inmates, some in single and some double cells,” legislative analyst Anita Lee said. “It would fall to [the California Department of Corrections and Rehabilitation] to do an evaluation of risks.”
Calculating the fiscal impact of Proposition 66 is much more complicated, the office found, as the measure leaves more open questions on implementation, such as how the state would staff up with additional private attorneys.
Legislative analysts said the costs in the short term were likely to be higher, as the state would have to process hundreds of pending legal challenges within the new time limits. Just how much is unknown, but the actual number could be in the tens of millions of dollars annually for many years.
Also unknown, analysts said, is the proposition’s effect on the cost of each legal challenge. The limits on appeals and new deadlines could cut the expenses if they result in fewer, shorter legal filings that take less time and state resources to process.
But they could increase costs if additional layers of review are required for habeas corpus petitions, the initial legal challenges in criminal cases, and if more lawyers are needed.
Meanwhile, potential prison savings could reach tens of millions of dollars annually, depending on how the state changes the way it houses condemned inmates. Transferring male inmates to other prisons rather than housing them in single cells at San Quentin could lead to lower costs. But how much depends on how many the state can move.
Mitchell said it was “pretty much delusional” to expect Proposition 66 to ever save the state money. For that to happen, she said, California would have to execute “one person every week, 52 people a year for the next 15 years, assuming they are all guilty.”
But Kent Scheidegger, author of the proposition and legal director of the Criminal Justice Legal Foundation, argued the legislative office’s numbers were skewed, while security costs for dangerous inmates would likely have to remain just as high.
“They don’t become any less dangerous if you change their sentence from death row to life without parole,” he said.
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