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March 22, 2007

Confronting the costs of capital punishment

This New York Times article discusses how a high-profile Georgia case is forcing folks in the state to appreciate and contemplate the economic costs of a capital punishment system.  Here are snippets:

A high-profile multiple-murder case has drained the budget of Georgia's public defender system and brought all but a handful of its 72 capital cases to a standstill. 

The case involves a rape suspect, Brian Nichols, who is accused of escaping from a courthouse here in 2005 after overpowering a guard, taking her gun and then killing a judge, a court reporter and two other people before he was recaptured. Prosecutors say the evidence against Mr. Nichols, including a videotaped confession, is overwhelming. But the case has cost the public defender system $1.4 million, and, on Wednesday, the judge in the case postponed jury selection until Sept. 10.

The judge, Hilton Fuller, said the "issue of funding" and the "complexities of this case have prevented an orderly and uninterrupted" method of proceeding.  The Georgia Public Defender Standards Council, which manages the public defender system, has run out of money....

The situation has become a political issue as the legislature weighs a request for $9.5 million to keep the public defender system solvent through the fiscal year, which ends in June.  The case "is testing the will of the state of Georgia with regard to whether or not the death penalty is worth the amount it costs," said Mike Mears, director of the standards council.

Georgia is not the only state pondering the cost of defending suspects in death-penalty cases.  This year, the Colorado House Judiciary Committee voted to abolish the death penalty, replacing it with a sentence of life without parole, and to use the money currently spent on capital punishment to help solve some 1,200 cold-case homicides.  The bill's sponsor, Representative Paul Weissmann, a Democrat, said it had cost the state $40 million in three decades to execute one inmate and put two others on death row. The bill now goes to the House Appropriations Committee.  In Arizona, Maricopa County, which has been overwhelmed by a surge in capital cases, may not seek the death penalty in some cases to save money, officials there said....

Mr. Nichols has offered to plead guilty to all charges in exchange for a sentence of life without parole, but Paul Howard, the Fulton County district attorney, has refused to take the death penalty off the table.  "The Nichols case could have been ended millions of dollars ago if the D.A. had been prepared to accept life without parole," said Emmet J. Bondurant, the departing chairman of the Public Defender Standards Council.  "You can’t fault the defense for trying as hard as they can to save a man's life."

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March 22, 2007 at 08:00 AM | Permalink


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That the bill for trying Brian Nichols is so high is an indictment of the capital punishment "jurisprudence" that has been foisted upon the American people by the Supreme Court. It is an outrage.

Posted by: federalist | Mar 22, 2007 9:06:22 AM

And, by the way, the public defender's counsel needs to do a better job with its resources. Why is the defense of Brian Nichols costing so much?

Posted by: federalist | Mar 22, 2007 9:10:00 AM

Federalist, First of all, since you admit that you are not a lawyer I have a bit more sympathy for you. If you were a lawyer, your comment would be beyond stupid. Instead, I think you are genuinely asking a question.

It is probably worth nothing that Nichol’s is not represented by a public defender, but rather by counsel that was appointed to represent him. This raises the cost, since rather than using attorneys that are on the staff of an agency, the state has to pay essentially whatever the market will support. There are no economies of scale here.

On the other hand, there is no outrage here. If the state wants to put someone in a hole or kill them, it is going to cost. Do I complain about the cost of buying a car? No. Do I complain about the price of a computer. No. (But, I think those are necessities.) The state, absent a constitutional amendment, can’t complain about the transactional costs involved in killing someone until he is dead.

Secondly, it seems that at a minimum, the judge has determined that the cost is within bounds.

Why do defenses cost so much?

1) Attorney time. It takes a lot of time to interview one’s client, develop legal arguments, and all that. The courtroom appearance in a major trial is really just the tip of the iceberg. Every bit of evidence disclosed to the defense must be analyzed, and its impact on the case, together with its admission must be determined.

2) Investigator time. Witnesses and possible defenses must be tracked down. At best, this can be done by investigators.

3) Experts. Credible experts cost a lot. They charge for every minute they spend working on it. Prosecutors hire experts, too. Sometimes they are on staff.

4) Support staff time. This is minimal. But someone needs to do the paralegal work.

On the other hand, the cost of prosecution, in real dollars probably mirrors the cost of defense. A lot of the prosecution’s costs are hidden, since most prosecutors simply are on staff, as are their investigators. Sometimes (but not always) do prosecutors hire out experts, because they think that inside investigators don’t have the expertise, or simply won’t be viewed as credible enough.

If you think the costs are too high, there are many ways to deal with the issue.
The first would be to simply prosecute less people. This doesn’t require any changes in the law.
Secondly, some have speculated that states could provide defendants with cash incentives to give up certain rights – such as a competently conducted trial. This is probably unconstitutional, but it hasn’t been tried.
Third, would be to take advantages of whatever economies of scale might exist in creating one or two state public defender agencies. (Following the Alaska model one of the agencies could be tasked with doing other things, like representing Children in Need of Aid, as well as criminal defendants.)

Posted by: S.cotus | Mar 22, 2007 12:32:38 PM

It should not take this amount of money to try a murder case where the evidence is overwhelming. If Nichols wants the best defense money can buy--let him pay for it.

Posted by: | Mar 22, 2007 12:41:57 PM

"It should not take this amount of money to try a murder case where the evidence is overwhelming."

And who, pray tell, makes the decision that the evidence is so "overwhelming" that the Sixth Amendment can just be brushed aside? Anonymous blog commenters? The right to counsel even applies to the guilty, believe it or not.

Posted by: JDB | Mar 22, 2007 1:36:34 PM

Whoops! After making the anonymous blog commeter crack I realized that my URL was off in the tag. Should be fixed now.

Posted by: JDB | Mar 22, 2007 1:38:44 PM

Third time's the charm - I promise!

Posted by: JDB | Mar 22, 2007 1:40:30 PM

You say the evidence is overwhelming. You don’t know what it is. Of course, it hasn’t been shown to a jury yet. Strangely, in many trials, someone will probably say the evidence is “overwhelming.” Then, they lose.

While I hate the 6th amendment as much as you, you did not explain which of the above expenses should be reduced. Or maybe, we should set a limit on the cost of prosecution and defense of people. For example, the cost of all prosecutions should be capped at $250 dollars. So, if the total cost of police-work, prosecutor-time, and any experts exceeds that much, then the prosecution must simply dismiss the case (and the cost of dismissing it gets subtracted from a limit in another case.) But, to be fair, the cost of defending cases would be capped at $250. This way, when the executive makes the decision to put people like you in jail, it will be a lot cheaper.

(Granted, I am with you about juries. I think that it is a shame an example of communism to have non-lawyers serve on juries. If you don’t go to law school, you couldn’t possibly be a non-lawyer, so you have no business being on a jury. The founding fathers agreed with us, because they say the dangers in juries made up of people that were undereducated.)

Posted by: S.cotus | Mar 22, 2007 1:49:50 PM

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