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June 10, 2009

"California can't afford the death penalty"

The title of this post is the headline of this op-ed authored by a former California Attorney General and district attorney, John Van de Kamp.  Here is how the opinon piece starts:

There are many reasons why people object to the death penalty. Opponents point to the ever-present risk of wrongful conviction.  They note that there's bias against people of color and low-income defendants, as well as geographic disproportionality in its administration.  And there's the fact that most other civilized societies around the world have concluded that it should be abolished.

But these days, there's also a strong economic argument for doing away with capital punishment. With California facing its most severe fiscal crisis in recent memory -- with draconian cuts about to be imposed from Sacramento that will affect every resident of the state -- it would be crazy not to consider the fact that it will add as much as $1 billion over the next five years simply to keep the death penalty on the books.

Here's the math. Today, California has 678 offenders on death row, more than any other state. Yet, in the last 30 years, we've had only 13 executions.  With 20 more people sentenced to death each year -- and an average wait of 25 years from sentencing to execution -- the number of inmates on death row is continuing to climb.

Now consider what capital punishment costs.  According to the final report of the California Commission on the Fair Administration of Justice, which I chaired from 2006 to 2008, the cost of a murder trial goes up by about half a million dollars if prosecutors seek the death penalty. Confinement on death row (with all the attendant security requirements) adds $90,000 per inmate per year to the normal cost of incarceration. Appeals and habeas corpus proceedings add tens of thousands more.  In all, it costs $125 million a year more to prosecute and defend death penalty cases and to keep inmates on death row than it would simply to put all those people in prison for life without parole.

On top of that $125-million extra cost per year, California is also facing the need to build a new death house for death penalty inmates at an estimated cost of $400 million.

Some recent related posts on the costs of capital punsihment:

June 10, 2009 at 08:13 AM | Permalink

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Comments

As I have noted before, with the Administration's borrowing and spending of trillions for every purpose under the sun, the notion of the government's "not being able to afford" X -- whatever X is -- has become an anachronism.

We can "afford," in this new world of limitless debt, billions and billions to bail out crooked banks, billions to bail out irresponsible and failing corporations, billions to prop up state governments now in hoc after years of devil-may-care spending, billions more to hand out health insurance for the minority of people who don't or won't buy it for themselves or through their employers, and on and on.

The idea of a limit on government spending has flat-out disappeared. Indeed, just about the only place I see it even mentioned anymore is on this site, in connection with -- guess what -- that long-time leftist boogeyman, the death penalty!

Of course the death penalty (1) is just a drop in the fiscal bucket compared to these other gargantuan areas of government largesse, and (2) enjoys vastly more public support than the bank and corporate bailouts. Thus, if there were to be a place to start saving money (which as noted there isn't and won't be), it would be with those bailouts, not with a punishment that the great majority of our states and citizens continue to support.

Posted by: Bill Otis | Jun 10, 2009 8:52:26 AM

California will get to this as soon as it is done dumping medical insurance for children.

Posted by: Anon | Jun 10, 2009 10:10:04 AM

Bill, I think you have stumbled onto the wrong blog. This blog is not about government spending; it is about sentencing law and policy. So yes, about the only time you will see a post mention government spending is when the spending has some connection with sentencing policy.

Moreover, your notion of "government" spending is overbroad. There is a big difference between federal government spending and state government spending: namely, the federal government can print money and deficit-spend to its heart's content, whereas the states cannot. So the notion of California's "not being able to afford X" is in no way an anachronism; California genuinely cannot afford a great many things at this moment in history. Certain spending will absolutely, positively, have to be cut.

As to the subject of this post? I agree with Van de Camp. Just from a cost-benefit perspective, California's death penalty is a wasteful indulgence. 30 years, $125 million a year, 13 executions -- that's about $288 million per execution. Over a quarter-BILLION dollars to execute one person as opposed to letting him rot in prison. I think California has better uses for its money.

Posted by: CN | Jun 10, 2009 2:17:02 PM

CN --

1. The stimulus money, which like the rest of its first-cousin bailouts, is federal money given to the states. So the idea that profligate federal spending is not connected to the dollars available to California is incorrect.

2. I will make you the same offer I made on a different thread -- an offer to which there was no response. The deal would be this: Those supporting the death penalty would urge its suspension during the recession, while those opposing the death penalty would urge its resumption once the economy recovers.

Deal?

My guess is that you won't agree to that, although perforce I await your response to know for sure. But if as I think you won't go for it, that will illustrate that your opposition to the DP, ostensibly on cost grounds, is just a make-weight for what is really a preconceived ideological position that you held even when the government was flush with money.

My own view is that the stakes in the death penalty debate are too high to allow finances to be dispositive, or even very influential. The taxpaying public, i.e., the people who foot the bill, is well aware that the death penalty is expensive, but their support for capital punishment has, according to Gallup or almost any other poll you care to look at, remained high and consistent.

Posted by: Bill Otis | Jun 10, 2009 3:43:46 PM

I oppose the death penalty on several grounds, not just economic ones, and I have never claimed otherwise. So I decline your offer.

But neither is my opposition on economic grounds a simple make-weight. A quarter-billion dollars per execution? The government will never be so flush as to justify such spending. If we should live to see a day when every child has a good education, every person has adequate health care, and the government is out of debt, feel free to get back to me.

And really, Bill -- the taxpaying public supports the death penalty, so I shouldn't complain about its cost? By that logic, you have no right to criticize the Obama administration's spending, because the taxpaying public approves of how he's handling the economy. http://www.pollster.com/polls/us/jobapproval-presobama-economy.php Oh, and I suppose you object to any funding for the Iraq war, too. http://www.pollster.com/polls/us/issue-iraq-rightormistake.php Surely you can come up with better logic than that.

Posted by: CN | Jun 10, 2009 4:34:44 PM

CN --

"I oppose the death penalty on several grounds, not just economic ones, and I have never claimed otherwise. So I decline your offer."

In other words, I am pragmatic enough to actually be willing to adjust my position to accommodate the budget realities you emphasize, but you aren't. OK. I appreciate the candor of your response.

"But neither is my opposition on economic grounds a simple make-weight. A quarter-billion dollars per execution? The government will never be so flush as to justify such spending."

Of course, having admitted in your opening sentence that you oppose the death penalty period, the government's spending five cents to implement it would, in your view, be too much. With five cents being excessive, the quarter billion dollar figure is just a gaudy smokesreen for your preconceived position.

"And really, Bill -- the taxpaying public supports the death penalty, so I shouldn't complain about its cost?"

Except that I never said you shouldn't complain about its cost. What I said was that the people who pay for it get to determine whether your complaint is sufficiently weighty to eliminate the DP. The fact, which you do not dispute, is that public support for the DP contines to be high and consistent over the last several years.

"...you have no right to criticize the Obama administration's spending, because the taxpaying public approves of how he's handling the economy. http://www.pollster.com/polls/us/jobapproval-presobama-economy.php Oh, and I suppose you object to any funding for the Iraq war, too. http://www.pollster.com/polls/us/issue-iraq-rightormistake.php Surely you can come up with better logic than that."

I believe, CN, that someone was saying just a little over three hours ago, "Bill, I think you have stumbled onto the wrong blog. This blog is not about government spending; it is about sentencing law and policy." Do you recall who said that?

P.S. Since you brought it up, however, yesterday's Gallup poll shows that less than 50% approve of Obama's economic and spending decisions.

Posted by: Bill Otis | Jun 10, 2009 5:27:58 PM

One way to look at the immense cost of the death penalty in California is that it is a symptom of the fact that there is not a widespread consensus in California that the death penalty is appropriate.

Prosecutors in many areas are reluctant to seek it. Jurors are reluctant to impose it, and do so in only a small percentage of statutorially eligible cases. Judges give these cases much more strict scutiny, at trial and in appellate review. Judges serving on appellate panels show much weak "panel effects" than in other areas of law. Courts with discretionary review intervene in these cases at a much higher rate (habeas petitions are much more likely to be granted in capital cases despite strict standards for habeas corpus review). Legislators on each side of the debate dig in hard to prevent modification of the status quo. Powerful forces like big law firms, law school faculty, the Roman Catholic Church, the foreign diplomatic community, and wealthy donors devote significant resources to funding legal defenses for those sentenced to death. Most of our world allies in the developed world have disavowed the death penalty and more still use it very infrequently. Those opposed aren't just small isolated egg head elites. Instead, those opposed are a substantial minority (perhaps even a narrrow majority) of those holding positions in the process.

Bare legislative process majorities can get a death penalty statute enacted, but it won't function well unless there is a widespread consensus among those charged with carrying it out that it is appropriate. This is why death sentences are carried out comparatively swiftly in Texas, while dragging on for twenty-five years before producing an execution in California.

Posted by: ohwilleke | Jun 11, 2009 6:36:57 PM

ohwilleke -- The most recent Field Poll I can find (2006) reports that Californians support the death penalty by 2-1 (63% to 32%), which closely mirrors the national figure. Check it out at http://www.field.com/fieldpollonline/subscribers/RLS2183.pdf.

A 2-1 consensus reflects a greater degree of public approval than for virtually any other contentious issue of which I am aware. In an election, it would dwarf the most one-sided presidential constests we have had (Johnson's wipeout of Goldwater and Reagan's wipeout of Mondale), both of which were decided by 60-40 margins.

It is not a lack of public support that makes the death penalty difficult to implement. It is, among other things, the willingness of defense counsel to file years of motions regardless of merit (and the system's tolerance for such behavior).

Posted by: Bill Otis | Jun 11, 2009 8:24:13 PM

Look at us, can we? We're arguing about efficient and economical ways to murder people, all the while smugly listing all the ways that we differ from Nazis. As for the question of my qualifications (professor, student, prosecutor, defense attorney, etc.) I am proud to have been raised as a 20,000-year-old Orang Asli Aborigine whose adopted father asked him to state what is a moral way to behave toward rocks, trees and snakes. What my father knew, but I did not yet, is that killing starts small but works its way up as it gets easier.

Posted by: Al Olmstead | Sep 13, 2009 12:53:01 AM

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