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March 19, 2014

Idaho officials struggle to calculate capital case costs

As reported in this new AP article, headlined "Idaho death penalty cost report finds limited data," officials in The Gem State has been finding it hard to do a complete accounting of capital case costs. Here are the details:

A new report from Idaho's state auditors shows that sentencing a defendant to life in prison without parole is less expensive than imposing the death penalty.  But the Office of Performance Evaluations also found that the state's criminal justice agencies don't collect enough data to determine the total cost of the death penalty.  The report was presented to the Joint Legislative Oversight Committee on Wednesday by Hannah Crumrine and Tony Grange.

Idaho is one of 32 states with the death penalty, but two of those states — Oregon and Washington — have moratoriums on executions.  Idaho has executed 29 people since 1864, but only three since 1977.  Keith Eugene Wells was executed in 1994, Paul Ezra Rhoades was executed in 2011 and Richard Leavitt was executed in 2012.

It's difficult to determine just how much imposing the death penalty costs,  Crumrine told the committee, in part because most of the needed data is unavailable.  Law enforcement agencies typically don't differentiate between the costs of investigating death penalty murder cases and non-death penalty murder cases, and jail and prison staffers don't track the transport costs to bring a condemned prisoner to court cases versus a regular prisoner.

The researchers were able to determine some costs, however: Eleven counties have been reimbursed more than $4.1 million for capital defense costs since 1998, and the state appellate public defender's office has spent nearly half a million dollars on death penalty cases between 2004 and 2013.  The Idaho Department of Correction spent more than $102,000 on executing Leavitt and Rhoades.

In any case, it's clear that death penalty cases cost more than sentencing an offender to life without parole, according to the report, in part because it takes longer for the appeal process to come to an end in death penalty cases.  And the ultimate penalty is seldom imposed: The report found that of the 251 first-degree murder cases filed from 1998 to 2013, prosecutors sought the death penalty in 42 and it was imposed in just seven cases.

Of the 40 people sentenced to death in Idaho since the death penalty was reinstated by the U.S. Supreme Court in 1977, 21 have had their sentences overturned on appeal or are no longer sentenced to death for other reasons, 12 are still appealing their cases and four died in prison.  Just three were executed during that time span.

Idaho Gov. C.L. "Butch" Otter wrote a letter responding to the report, stating that he believes state agencies have been diligent in accounting for and containing costs. Otter wrote that though the report raises the question of whether tax dollars are spent wisely on capital punishment, he continues to support the death penalty laws.

March 19, 2014 at 05:44 PM | Permalink


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The death penalty is much more expensive than its closest alternative -- life imprisonment with no parole. Capital trials are longer and more expensive at every step than other murder trials. Pre-trial motions, expert witness investigations, jury selection, and the necessity for two trials -- one on guilt and one on sentencing -- make capital cases extremely costly, even before the appeals process begins. Guilty pleas are almost unheard of when the punishment is death. In addition, many of these trials result in a life sentence rather than the death penalty, so the state pays the cost of life imprisonment on top of the expensive trial.

The high price of the death penalty is often most keenly felt in those counties responsible for both the prosecution and defense of capital defendants. A single trial can mean near bankruptcy, tax increases, and the laying off of vital personnel. Trials costing a small county $100,000 from unbudgeted funds are common and some officials have even gone to jail in resisting payment.

Nevertheless, politicians from prosecutors to presidents choose symbol over substance in their support of the death penalty. Campaign rhetoric becomes legislative policy with no analysis of whether the expense will produce any good for the people. The death penalty, in short, has been given a free ride.

-- What Politicians Don't Say About
the High Costs of the Death Penalty, by Richard C. Dieter

Posted by: Anti-Federalist | Mar 19, 2014 7:30:24 PM

Anti-Federalist --

Then I suggest we lower the costs of the DP by discarding the excess procedures insisted upon by such people as, uh, Richard Dieter.

One million dollars per case, max, that's it.

Posted by: Bill Otis | Mar 19, 2014 7:46:48 PM

Bill - er, did you even read the article!
"Of the 40 people sentenced to death in Idaho since the death penalty was reinstated by the U.S. Supreme Court in 1977, 21 have had their sentences overturned on appeal or are no longer sentenced to death for other reasons, 12 are still appealing their cases and four died in prison. Just three were executed during that time span."

Posted by: peter | Mar 20, 2014 4:47:00 AM

I would appreciate data on the costs of injuries and deaths caused by prisoners with LWOP.

Posted by: Supremacy Claus | Mar 20, 2014 7:12:57 AM

SC ---

"I would appreciate data on the costs of injuries and deaths caused by prisoners with LWOP."

Great point, but good luck on getting it. Abolitionists are dedicated to telling only one side of the story, while sweeping the other under the rug.

Posted by: Bill Otis | Mar 20, 2014 9:21:59 AM

Peter- er, did you even read the cases?
Here’s the facts on #5 of your 19 “innocent” gits:
in Georgia:
Ellis Wayne Felker

“Less than a year after he was released on parole, Felker used deception to lure Evelyn Joy Ludlam, a nineteen-year-old college student working as a waitress, to his residence. There, he forcibly subjected her to bondage, beating, rape, and sodomy.” (52 F.3d 907)

Ludlum's body was found in a creek, raped, stabbed and murdered by strangulation. Felker had a prior conviction for aggravated sodomy in which the victim was "chok[ed]", a sentence for which he was sentenced
to twelve years. (252 Ga. 351)
The court found 15 “numerous and distinctive” similarities, such as that:
--“Each victim was a young, white female employed as a cocktail waitress. …
---Each victim was bruised on her breasts and each had a circular bruise on her right thigh.
---Each victim was choked. Each victim was beaten. …
---The chain necklace of each was removed. The pendants from both necklaces were later found in the victims' pocketbooks,
while the necklaces themselves disappeared in both cases."

• “Fibers found on the victim's coat were consistent with fibers present in a yellow and orange blanket first observed in Felker's home. …
[and] found in the hatchback area of Felker's automobile.“
• “Hairs were found on the victim's clothes, including her underclothes, and on her body, that were similar to Felker's head and beard hair. …
[and] in the victim's pocketbook … several hairs discovered in the bedroom of Felker's home were similar to the victim's head and pubic hair.”

[“Felker had been involved in an earlier incident involving bondage and forcible sex. This incident was described at trial by the victim.
… anally sodomized … punched her with his fists … he was able to rape her. Then, … he removed the duct tape from her mouth and orally sodomized her.”]

• “the last person known to have seen her alive was the appellant, Ellis Wayne Felker.”
• “Joy's body was discovered in Scuffle Creek clothed in the same plaid coat and red dress that she had been wearing when last seen alive.”

• “Pat Woods had left Felker the previous Saturday after he had blackened both of her eyes, so he was alone Tuesday morning when Joy arrived.
A neighbour … noticed Joy's arrival at approximately 9:00 a.m. and wrote down the tag number of her car. The neighbor testified…”
• “investigators questioned Pat Woods, who had resumed her cohabitation with Felker. Soon afterwards, Felker collected some of his pornographic
magazines and his bondage cuffs … and threw them in a garbage dumpster.”

• “bogus story to police after her disappearance”
• “Tillman noted hemorrhaging inside the eyelids indicative of asphyxiation, and contusions at the junction of the lips indicative of some sort of force
against her mouth. On her neck was a long, narrow area of bruising. On her breasts, he observed ecchymotic hemorrhage consistent with having been
induced by suction. There were bruise marks on her left shoulder and on her right thigh.
The evidence supports a finding that Joy Ludlam was bound at her wrists and ankles, gagged, and blindfolded, all against her will. (52 F.3d 907)

• There were marks on her left wrist and on her ankles consistent with their having been bound. Tillman observed areas of contusion around the vagina and anus, which was distended, indicating traumatic entry of these orifices. On internal examination, Tillman noticed an area of hemorrhage near the second, left rib ... having been applied by an object such as a fist or a foot. He observed a number of areas of subgaleal hemorrhage on the inside of the scalp. ...
• "Examination of the lungs indicated that Joy had been dead when she was placed in the water. Tillman concluded that the cause of death was asphyxiation from strangulation." (252 Ga. 351, www.csmonitor.com/2000/0808/p1s4.html/(page)/2)

| Amnesty International | “Amnesty International very much regrets that Ellis Wayne Felker was executed in Georgia on 15 September 1996. “In post-conviction proceedings,
the State repeatedly misrepresented its entire file.”” – 18 November 1996

[However, the Court found: “He cannot establish that the evidence in question was suppressed, because the evidence itself, if true, proves that Felker was aware
of the existence of that evidence before trial. … because he was there when it happened, he knew it well before anyone representing the State did. … More importantly,
the evidence in question would have flatly contradicted Felker's testimony on his own behalf.] (52 F.3d 907)

Posted by: Adamakis | Mar 20, 2014 9:41:31 AM

The problem with assessing the real costs of the death penalty is that any discussion assumes that, if you eliminate the death penalty, everything else stays the same.

Currently, many states that have the death penalty treat death cases differently than they do other cases (even though most of that difference is not constitutionally required): some conduct proportionality review, some assign special public defenders to handle death penalty cases, some set up special line items for capital defense expenditures, some allow the appeal to go directly to the state supreme court, etc. By statute, the federal government provides counsel in habeas petitions to those facing death sentences.

At the practical level, defense attorneys put more effort into death penalty cases (because it is the maximum penalty) and judges appear to give closer scrutiny to death penalty cases (because it is the maximum penalty).

If you get rid of the death penalty, how long until these special protections and closer scrutiny apply to LWOP cases?

Posted by: tmm | Mar 20, 2014 11:25:34 AM

One cost of the death penalty is that while an arbitrary number of people are sentenced and executed along with a bunch sentenced and subject to appeals and other drama, other things -- including other problems of the rest of the people in the justice system -- are worried about less. Doug Berman flagged this issue.

To some extent, the reason is that "death is different," and "life" and "liberty" (and "property") are handled differently in law and life in a variety of ways. But, at some point, it is a misuse of resources. At any rate, if the death penalty does not apply or apply only in a limited number of cases, that would alter as well.

Posted by: Joe | Mar 20, 2014 12:09:00 PM

tmm --

"If you get rid of the death penalty, how long until these special protections and closer scrutiny apply to LWOP cases?"

The amount of time it takes light to cross a fingernail.

Posted by: Bill Otis | Mar 20, 2014 3:24:55 PM

Illinois abolished the death penalty, many, many appellate lawyers immediately lost their jobs from both sides.

The Supreme Court once ended the death penalty, same happened. They re-instated it.

Sentencing guidelines dropped crime by 40%. Justice Scalia led the charge to make them discretionary at a time of serious lawyer unemployment or under employment.

I agree with Bill, about the transfer of the appellate business to LWOP.

Posted by: Supremacy Claus | Mar 20, 2014 6:46:21 PM

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