Context-free ruminations on the federal death penalty

In today's New York Times, US District Judge Frederic Block has this interesting op-ed discussing the federal death penalty.  The whole piece raises (and overlooks) a lot of important issues; here is a long snippet:

While New York State does not subscribe to the death penalty for the moment, the federal government does.  Over the last few years there has been a surge in death penalty prosecutions authorized by the United States attorney general, both nationwide and in federal cases in New York.  But these have resulted in disproportionately few death penalty verdicts, at enormous costs and burdens to the judicial system.  A more prudent and realistic approach in the way the government seeks the death penalty is warranted.

Federal death penalty prosecutions reappeared in 1988, and since 1990 the attorneys general have authorized 416 prosecutions nationwide: 180 during the 1990s, an average of 18 per year; and 236 from 2000 to the present, a jump to almost 40 per year. In New York State, 12 were authorized during the 1990s; since then, 30 more. 

Given the time required to prepare and defend against a death penalty prosecution, many of those cases have yet to be tried.  Of those that have been tried, 50 resulted in death penalty verdicts.  But because of the long judicial review process before someone is put to death, there have been only three federal executions, the most notable being Timothy McVeigh's. (One benefit of this protracted process is that 197 state death row inmates have been exonerated.) 

In New York, 17 of the authorized cases have been tried, but only one death penalty verdict returned — the recent case against Ronell Wilson, convicted of murdering two police officers.  In the Eastern District of New York (covering Brooklyn, Queens, Staten Island and Nassau and Suffolk Counties), where I am a judge, there were three death penalty trials from 1990 to 2005.  That number was already matched this year, and there are six more cases scheduled for trial.

What have all these death penalty prosecutions cost the taxpayers, who pay for both defense — the Constitution guarantees the right to counsel for those who, as is usually the case, can't afford it — and prosecution?   I recently presided over a trial in which the jury quickly rejected the death penalty.  The vouchers submitted by the defense alone exceeded $500,000.  Assuming the cost of prosecution to be at least equal (efforts to obtain that figure from the Department of Justice were unavailing), $1 million would be a fair estimate for the trial alone.  Had there been a death verdict, an appeal would have added many more dollars.  Thus, we have probably spent more than $17 million on the 17 federal death penalty trials in New York State, with one death verdict to show for it.  And taxpayers will be footing the $9 million bill for the nine death penalty cases in the Eastern District.

All this as the federal judicial system is struggling with unprecedented budget cuts. In the Eastern District, some 25 assistant United States attorney positions remain unfilled, presumably contributing to a marked reduction (38 percent from 2003 to 2005) in criminal filings.  The Probation Department's budget has been cut by $680,000 from the last fiscal year (making it harder to keep tabs on former inmates requiring supervision), and Pre-Trial Services' by almost $100,000 (making it harder to supervise those on bail awaiting trial).  And while the Marshals Service has been called upon to provide additional resources and security to handle the surfeit of death penalty cases, its operating budget, exclusive of salaries, has been cut by about 32 percent, from $549,000 to $375,000....

I find this piece fascinating in part because Judge Block attacks the federal death penalty with arguments that are much more appropriate for an attack on the way states approach the death penalty.  Let me explain:

1.  Prosecutorial discretion:  Because of many layers of internal review, there is every reason to believe that federal prosecutors, far more than state prosecutors, already take a "prudent and realistic approach in the way the government seeks the death penalty."  Indeed, the up-tick in federal capital cases in New York makes sense in light of the state's disrupted system of capital punishment which is not operational because of a state high court ruling.  (Election results suggest that New York state voters do "subscribe to the death penalty," but the state's high court in 2004 canceled that subscription.)  As detailed in stories here and here and here, any attack on imprudent pursuit of the death penalty by prosecutors should start in Arizona, where a country prosecutor has more pending capital cases in a single county that the federal government has pending nationwide.

2.  Costs:  Though budgets are tight all over, the money spent on federal death penalty prosecutions is tiny compared to so many other federal expenditures.  Judge Block's numbers suggest federal taxpayers may have spent roughly $350 million on federal death penalty prosecutions over the last two decades; but federal taxpayers now pay roughly $350 billion every year on interest payments servicing the debt.  In other words, we've spent roughly 0.1% of what we spend servicing the national debt each year on the federal death penalty over the last 20 years.  Relatedly, lots of federal money is spent on federal habeas review of state death sentences (which all have already been repeatedly reviewed by state courts).  Would Judge Block be eager to cut these expenses though further restrictions on capital federal habeas actions.  Again, cost is an important capital consideration, but much more so in state systems with smaller budgets and larger caseload than in the federal system.

I stress these points because, as detailed in posts below, I now think the best modern approach to the death penalty would be to make capital punishment an exclusively federal matter so that we do not have the current bizarre and inconsistent state-by-state adjudication (and then federal habeas review) of which horrible killers should live and which horrible killers should die.

Some recent related posts:

• The federalization of the death penalty
• A poster child for the (federal) death penalty?
• More support for an exclusively federal death penalty
• The federal law gap in the NJ death penalty report
• The federal death penalty in America's paradise
• Ashcroft's death penalty "legacy"
• Florida gov seeks national LI review
• Live summary blogging from Missouri DP conference
• Should we care about geographical sentencing disparity?