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August 8, 2012

Ohio op-ed laments that capital cases "waste a lot of taxpayers' money"

Just in time for my return to Ohio after six weeks overseas, my own Columbus Dispatch has this new editorial about the costs of death penalty cases.  The piece is authored by Jack D’Aurora of The Behal Law Group, and here are excerpts:

When Mark W. Wiles was executed on April 8, Ohio was set to execute 11 more Death Row inmates, one every two months through January 2014. If you’re a social conservative, this is good thing, though you’re disappointed that Gov. John Kasich commuted the death sentences for Abdul Hamin Awkal and John J. Eley, who were scheduled to be executed this summer.

If you’re a fiscal conservative, you’re wondering why we spend so much time and money on the death penalty. Wiles was executed for a 1985 murder. Awkal and Eley committed murder in 1992 and 1986, respectively. Of the nine other inmates, four committed their crimes between 1983 and 1989, three between 1993 and 1994, and two in 1997 and 1998. That comes out to a minimum of 14 years between homicide and execution and an average of over 21 years. Another 133 Death Row inmates await execution dates.... I spoke with U.S. District Court Judge Gregory Frost about the time he and his staff spend on death-penalty cases. Like all federal judges, Frost presides over habeas corpus cases. To assist with the review of these cases, each of the three federal courts in the Southern District of Ohio employs a full-time law clerk (all licensed attorneys), and the court here in Columbus employs a part-time clerk, as well. The law clerks in Columbus handle about 25 cases, which may consist of anywhere from two boxes of documents to tens of thousands of pages.

Judge Frost also is involved in two other aspects of the death penalty. He reviews the very detailed protocol that begins 30 days prior to each execution and presides over a civil action concerning the death penalty, filed in 2004 on behalf of about 87 Death Row inmates....

Hearings are attended, at a minimum, by three assistant attorneys general, three attorneys for the inmate, the Lucasville prison warden, the director of the Department of Rehabilitation and Correction, counsel and other officials from the department, Frost and his two law clerks. These people all are paid by either the state or the federal government. Hearings can last from a few hours to multiple days....

Frost estimates that he and his staff spend 40 to 60 hours per month on some aspect of death-penalty cases.

The hidden cost of executing murderers reminds me of a commercial a few years back, where corporate executives are not allowed to leave a conference room until they devise a way to cut the company budget. After various ideas are tanked, one executive waives his hand over the binders and reams of paper that cover the table and asks, “How much does all this stuff cost?” The financial guy responds, “Time, people and material — it could be millions.” Everyone’s eyes open wide in astonishment.

Shouldn’t our state be equally concerned about time and money? Life sentences without parole would serve us much better, but we are fixated on a process that drains government resources. And to what advantage?

August 8, 2012 at 05:09 PM | Permalink


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"If you’re a fiscal conservative, you’re wondering why we spend so much time and money on the death penalty."

I'm a fiscal conservative, and I don't wonder at all, since I know (as does the author).

We spend all that time and money because defense counsel spend years throwing it all up against the wall, not because the client didn't do it, but so that they'll be able to say, in pretend and marvelously cynical bafflement, "If you’re a fiscal conservative, you’re wondering why we spend so much time and money on the death penalty."

Posted by: Bill Otis | Aug 8, 2012 6:38:05 PM

Bill, your comment is a gross oversimplification.

Posted by: Tom McGee | Aug 8, 2012 7:39:41 PM

Tom McGee --

Any condensation or summary is an oversimplification. The interesting question is whether my comment is true, and you don't dispute that it is. (Indeed, we had one defense lawyer on this blog admit point-blank, a few days ago, that capital defense is about "delay for delay's sake").

Posted by: Bill Otis | Aug 8, 2012 9:47:25 PM

Bill: Not the defense bar. The Supreme Court has applied a finely tuned instrument in Baze to generate massive lawyer government make work jobs.

If they had banned the death penalty, they would have shut down $billions in lawyer employment each year, including for federal judges.

If they had banned false appeals, the same is true.

They perfectly, and hit the rent seeking bull's eye, keeping the death penalty a little, but lawyer jobs a lot.

If the true aim were justice and accuracy, they would not have appellate courts review cases but experienced investigators.

Posted by: Supremacy Claus | Aug 9, 2012 1:37:55 AM

SC --

When the judicial system condones -- indeed encourages -- delay for delay's sake, what you get is the mess we have now.

We know the DP is constitutional and supported by a big majority. Thus what we should do is not end the DP (as some want, citing all this delay and expense), but end condoning the disgraceful game it has become. We do that by creating and enforcing both spending and time limits. The limits should be reasonably generous, and subject to change in clearly exceptional and urgent cases, but other than that, should be enforced.

Game playing in behalf of ice-cold, sadistic killers is not a necessity. It's a luxury we thought we had the money and liesure to afford. We now know we don't have the money, and the liesure has been exploited to the point of absurdity. Time for reform.

Posted by: Bill Otis | Aug 9, 2012 8:57:30 AM

Bill: Trying to take away jobs from the lawyer hierarchy is as easy as taking candy from a baby. Anyone who has ever tried that stunt knows it is extremely difficult to take candy from a baby. What do you think the DP appellate advocacy costs, $5 billion a year?

The difficulty is explained by the poli sci concept of diffuse cost, concentrated benefit. $5 billion divided by 100 million taxpayers is not an amount anyone would fight for. However, $5 billion divided among 5000 lawyers and judges is huge, and their sole way to make a living. So they will fight to the utmost to save their jobs. So legislators and even the Supreme Court are pressured by only one side.

Posted by: Supremacy Claus | Aug 9, 2012 9:24:32 AM

It is a bit rich for that nitwit Judge Frost to be whining about the time he spends getting worked up over a different official certifying the time of death and penning poorly-written screeds about lethal injection.

Posted by: federalist | Aug 9, 2012 9:42:13 AM

Waste of lives, waste of money, waste of law, waste of rights

Posted by: Claudio Giusti | Aug 9, 2012 9:43:15 AM

Claudio --

"Waste of lives ..."

I agree that the victims lives were wasted.

"...waste of money..."

Does that mean you support my proposal to limit expenditures?

"...waste of law..."

What are you talking about?

"...waste of rights."

There is no right in this country to avoid the death penalty for aggravated murder.

Posted by: Bill Otis | Aug 9, 2012 9:57:25 AM

"There is no right in this country to avoid the death penalty for aggravated murder"
Best joke of the year

Posted by: Claudio Giusti | Aug 9, 2012 11:18:42 AM

I thought Kasich granted Akwal a 2 week reprieve so the state court could hold a hearing. The judge ruled for Akwal and the state is appealing.
Is D' Aurora wrong?

Posted by: DaveP | Aug 9, 2012 4:44:55 PM

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