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February 17, 2008

After three decades (and a billion dollars wasted), Penry gets a life sentence

311xinlinegallery The AP here details remarkable final chapter to an infamous and telling Texas capital punishment story:

The state will not seek the death penalty against convicted killer Johnny Paul Penry in an agreement that will require Penry to serve three consecutive life sentences without the possibility of parole, officials said Friday.  Polk County Criminal District Attorney William Lee Hon reached the agreement with attorneys for Penry, who was convicted of raping and fatally stabbing a woman at her home in Livingston in 1979....

The agreement means Penry's case will not have to go back to a jury to consider his punishment for a fourth time. In 2006, the U.S. Supreme Court, acting on an appeal from the Texas Attorney General's Office, refused to reinstate Penry's death sentence, clearing the way for a new penalty phase....

Penry has spent more than half of his life on death row for the slaying of 22-year-old Pamela Moseley Carpenter, the sister of former Washington Redskins kicker Mark Moseley.  Penry confessed to attacking the woman and stabbing her with scissors....  Mark Moseley said that while Friday's agreement brought the tragedy back to the forefront and made him feel "almost like it just happened again," he was glad to get the legal situation behind him.

Penry's longtime attorney, John Wright, said he was pleased with the decision.  "They've finally come around to what should be done," Wright said. "I've been asking for a life sentence since November 1979."  Wright said, though, that "there aren't any winners in these cases. ... I'm not claiming a victory." 

Penry's attorneys had contended their client, who has said he believes in Santa Claus, has the reasoning capacity of a 7-year-old.  While psychological tests have put Penry's IQ between 50 and 60, at least five juries have found Penry to be legally competent to stand trial or have rejected defenses based on mental retardation.  The high court in 2002 ruled mentally retarded people, generally considered having an IQ below 70, may not be executed....

"Why don't they just lock me up and throw away the key?" Penry told The Associated Press in 2001. "That's all I want."   

The Supreme Court first agreed to hear Penry's case in 1988, and the following year overturned his death sentence on 5-4 vote.  In 2000, he got within about three hours of execution when the justices halted the punishment.  Penry was again sentenced to death, which was voided in 2001 by the Supreme Court on a 6-3 vote.  Both times the high court reasoned the jury was not allowed to properly weigh Penry's alleged retardation.  A new trial in 2002 led to a death sentence that was reversed in 2005 by the Court of Criminal Appeals, which ruled 5-4 to send Penry's death sentence back for another punishment hearing. It was that decision the attorney general's office appealed to the high court.

So, let's review: in Penry's case there was no question about guilt, only whether he would get a life sentence or the death penalty.  Because Texas prosecutors for 30 years were not content with anything less than a death penalty, they put three juries through the agonizing experience of having to condemn a person to death.  And, in part because prosecutors were so effective in getting many juries to return a death verdict, this case made its was to the US Supreme Court twice and was the subject of dozens of lower court rulings. 

I wonder how much time, money and energy was spent by Texas and US taxpayers trying to figure out Johnny Paul Penry's fate.   Given the estimate that over $2.3 million extra dollars are spent on an average capital case in Texas, I seems reasonable to guess that over $1,000,000,000 has been spent by US and Texas taxpayers to decide whether Johnny Paul Penry should be executed for his crime!  And, after all this time and money was devoted to this capital case, it ends with the LWOP sentence that the defense has been urging for nearly three decades.  I wonder how many underfunded local police forces or local schools or crime victim funds or roads construction crews could have been more productive than was the criminal justice system with this billion dollars wasted by Texas prosecutors trying to have the state kill Johnny Paul Penry for his admitted crime.

The particular irony in the Penry case is that prosecutors' pursuit of the death penalty lead to accomplishments, but mostly by those favoring death penalty abolition.  The time and money spent on the Penry case surely diverted some Texas prosecutors from spending time and money pursuing other capital cases.  Moreover, the two Supreme Court Penry decision were critical catalysts for the Court's ultimate ruling in 2002 that the Eighth Amendment demands a categorical ban on the execution of all persons who suffer from mental retardation.  So, to be accurate, the billion dollars invested by Texas prosecutors in the Penry case did have some positive pay-off — but really only for those who oppose capital punishment.

Some related posts on the extraordinary economic costs of capital punishment:

February 17, 2008 at 08:25 AM | Permalink


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Well said, Doug. I have long been advocating for political accountability for prosecutors who make such costly decisions. I believe one half of the cost of a capital trial should be borne by the taxpayers who live in the county which elects the prosecutor, to insure that prosecutors have accountability for the decision of which cases to try capitally.

bruce cunningham

Posted by: bruce cunningham | Feb 17, 2008 8:48:07 AM

I'm confused, after Atkins, why would the death penalty even be on the table for Penry?

Posted by: Steve | Feb 17, 2008 8:56:50 AM

Steve, the state continues to claim the Penry is a faker and not really mentally retarded.

Posted by: Doug B. | Feb 17, 2008 8:58:49 AM

I don't understand how $2.3 million extra for a capital case can result in a $1 billion total or an average expenditure of $33.3 million per year. It seems to me that $70 million would be a very high estimate because there must have been long periods with little activity waiting for the case to be processed.

Posted by: John Neff | Feb 17, 2008 11:31:58 AM

Uh, yeah, this is another example of lawyers not being able to do math. I think Doug got 10,000,000 (i.e., 10 million) in a calculator and thought it was one billion.

Posted by: Confused | Feb 17, 2008 11:46:45 AM

Why blame the prosecutors?

Couldn't you just as well say that all of this money was wasted because defense attorneys wanted to keep this murderer in a cage until he dies of natural causes?

Posted by: William Jockusch | Feb 17, 2008 12:00:24 PM

William Jockusch,
I think you are failing to appreciate the American institution of the adversary system, as opposed to the inquisitorial system. We believe truth is best found by advocates on both sides representing their client's interest. It is not the role of the defense lawyer to determine guilt or innocence, or appropriateness of life or death, of his client. It is our job to present the client's position in the light most favorable to him, within the bounds of ethics. Likewise for the State. The jury decides the assumption implicit in your post.

bruce cunningham

Posted by: bruce cunningham | Feb 17, 2008 12:32:18 PM

I came up with the billion number because Penry was anything but an average case. It made it to the Supreme Court twice, and a quick Westlaw search shows that 25+ briefs were filed just in the Supreme Court (including amici). Even if the average SCOTUS brief only costs $40,000 in time and money, this means an extra $1 million in just SCOTUS briefing. And then, for both cases before SCOTUS, probably another $1 million in salary and other costs on the clerks, staff, judges, advocates, media etc. (Not all these are taxpayer costs, though a lot get back to the taxpayer in one way or another).

Of course, fewer briefs were filed in the dozens (hundreds?) of court actions that took place before and after the two Penry SCOTUS cases, but there were lots and lots and lots of MORE lawyers who invested time and money. (Indeed, I was one of those lawyers, working pro bono at a large NYC firm in the mid 1990s.)

Given that NJ spent $250,000,000 on its death penalty without even having a single DP case go deep into the federal habeas process, I do not think the ONE BILLION price tag for the Penry case is completely out of whack as an educated guess.

Perhaps what's even more important is to realize we are all just making guesses -- nobody knows how much time and money has been wasted here, though we do now know that it is all money down the drain given that Penry just got the sentence he should have been given three decades ago. I wonder if all the paper used to file briefs in Penry can/will be recycled to make books for underfunded Texas schools that likely could use some new textbooks.

Posted by: Doug B. | Feb 17, 2008 1:27:32 PM


I get $91,324 dollars a day for 30 years. How many lawyers does it take to bill $90,000 per day?

Posted by: John Neff | Feb 17, 2008 2:00:16 PM

Well, only a handful if they bill out at today's going rate of $1,100/hour for elite lawyers. And, of course, I am including all the court costs, the copying costs, the travel costs, the research costs, etc., etc., etc.

Assuming my number is too high, how about trying to calculate another number. Perhaps we might start by trying to determine the total number of pages of filings submitted to courts and pages of rulings by courts in these cases. Do you think it is fair to guess that, roughly speaking, as many as 500,000 pages of filings have taken place in this case and, say, 10,000 pages of court rulings? I think it is not ridiculous to imagine $1000 spent on each page of lawyer production (including time research, writing and reading) and maybe $50,000 spent on each page of judicial opinions (considering that, at the SCOTUS level, 50 elite lawyers are reviewing every page, and then 1000s others read and reflect on the final product). That's another way to get int he ballpark of $1,000,000,000.

Again, my main point is that no one is even trying to do this math in this context, while bean-counters are ALWAYS keeping an eye on the bottom line and the efficacy of money spent in other settings.

Posted by: Doug B. | Feb 17, 2008 3:22:55 PM

We don't have a DP in Iowa and the State of Iowa pays $170 million for the Judiciary and public defenders and the 99 counties pay for the prosecution. My guess is that half of the cost is spent on felony cases and about 85% to 90% of the felony convictions are by plea bargains so the estimated average cost of $17,000 per felony conviction is too low for a LWOP case with a trial.

It appears an LWOP case can cost a county about $50,000 to $100,000 (the cost to the state would be at least half that) for the initial case not including investigation, crime lab and incarceration costs that can be considerable. There is usually an appeal and they drive up the cost and a small county would be in serious financial difficulty if they had to prosecute an LWOP case. If we had a DP my guess is that almost all counties would turn over the prosecution to the State Attorney General.

Figuring out what this costs and who pays for it is very important because it appears to me we are in the process of outsourcing our criminal justice system for the most serious crimes.

Posted by: John Neff | Feb 17, 2008 5:47:57 PM

I still don't think you're even close to one billion dollars.

Supreme Court Justices don’t make much money, nor do their clerks. If their yearly salary were a combined ten million, I’d be shocked. But lets go with that high number. This case was what, 1/100th of their work in any given year since they grant cert on about 90 cases, plus they spend a lot of time deciding whether any given case should be heard. That’s 100 grand per case. Since this case has been before the court three times, that means $300,000. And we can even throw in an unrealistically high overhead cost of $700,000. That means the court spent no more than one million dollars on this case.

As far as the parties, you’re way overestimating. There’s no way the average page costs what you think it costs since many of them are fluff and most of hte work is done by junior people who charge out at 300 or 400 dollars per hour. (Also keep in mind that at least one of the cases was handled by the Texas Capital Punishment Clinic. How much money is a law student worth?) Moreover, because this case was tried three times and the same parties were at play, they likely were more efficient by the time the third trial came around and so they likely spent less than the average.

If these three cases even cost 100 million, I’d be shocked.

Posted by: Confused | Feb 17, 2008 5:53:25 PM


Realistically the total cost of the Penry case is well under 50 million. My back of the envelope calculations are 25-30 million in taxpayer costs which includdes all three trials including the costs of the SCOTUS time & now his plea (this is a SWAG, -- scientific wild ass guess -- but I think well within the realm of reason). I should note that although taxpayers footed some of the bill for the defense in this case & all of the costs (obviously) for the court & prosecutor, the amici briefs in Penry were pro bono & much of Penry's representation was footed by Paul Weiss and several exceptionally skilled and dedicated attorneys there & I suspect that may have well been in the high 7 to 8 digit range in attorney time.

Also, I think your math is bad due to a faulty assumption about per unit costs. The per unit cost of the first execution is high but dramatically drops once you get out to 400+ execution range that Texas now occupies.

Posted by: karl | Feb 17, 2008 11:55:12 PM

Mr. Cunningham, the guilt phase of the trial concluded a long time ago. The $1B waste figure represents the appeals and habeas process.

Posted by: | Feb 18, 2008 7:34:01 AM

I don't agree with the death penalty, but we need to have some sort of banishment penalty to better serve other inmates, guards and the purposes of rehab for those that will at some point be released. Think Papillon. The little stone cottage with the garden, overlooking the ocean, that Dustin Hoffman had at the end of the film actually seemed very peaceful.

Posted by: rob | Feb 19, 2008 12:01:58 PM

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