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February 28, 2008

Playing with the economics of the death penalty

A helpful reader forwarded to me this fascinating local story headlined, "Arapahoe County DA Charges Death-Penalty Fees to the State: How does DA Carol Chambers beat the high cost of a death-penalty prosecution? By billing the prison system."  Here is how it start:

The State of Colorado has managed to execute one murderer in the past forty years.  Its death row, current population one, is among the smallest in the country.  For four years after a 2002 U.S. Supreme Court decision threw out the state's system of having three judges decide whether an inmate should be executed, not a single new capital case was filed.

Some prosecutors regard the pursuit of the death penalty in the Centennial State as an exercise in futility. Even for the most heinous crimes, they say, it's difficult to get juries to impose the ultimate sentence — and then the appeals process can drag on for a decade or more, with taxpayers shelling out millions to fund both sides of the court battle. A recent memo to Governor Bill Ritter from the Colorado Attorney General's Office says it's not unusual for the defense in a death-penalty case to file between 300 and 400 motions, all of which must be answered by the prosecution.  There are district attorneys who would rather undergo a colonoscopy with a garden hose than face such a gauntlet of budget-busting paperwork and frustration.

Then there's Carol Chambers, the maverick district attorney of the 18th Judicial District, which includes Arapahoe, Douglas, Elbert and Lincoln counties.  Her office is pursuing six of the seven capital murder cases now under way in Colorado.  The crusade has drawn heat from death-penalty opponents, but it's also attracting scrutiny from the state legislature.

Using a 130-year-old statute that requires the Colorado Department of Corrections to reimburse counties for prosecuting crimes committed inside state prisons, Chambers has found an unusual way to pay for half of her death-penalty cases.  She's billed the DOC hundreds of thousands of dollars in recent months, effectively shifting the cost of trying to execute three inmates from her county-funded budget to Colorado coffers. The tactic has forced prison officials to go to state lawmakers, seeking a special fund for "payments to district attorneys," and raised questions about whether Chambers can bill the state for the entire salaries of employees in her office, including a chief deputy making $131,000 a year.

"Carol Chambers has turned her death machine into a cash cow," says attorney David Lane, an inveterate death-penalty opponent who is representing one of the prisoners facing possible execution. "I've never seen a capital case go this way. The only explanation I can see is that it's a big moneymaker for her office. Killing people is big business for them."

Chambers denies that there's any profit motive involved in her office's reinvigorated pursuit of the death penalty. "There is nothing inflated or improper about our bill to the Department of Corrections," she insists. "There is no financial incentive in the litigation."

UPDATE:  A kind reader sent me this link to a response to this story that DA Chambers has already produced.

February 28, 2008 at 06:08 PM | Permalink


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why isn't that a conflict of interest on the part of the DA as big as a house.?

Paying for the salary of a DA because they litigate a case capitally? It also violates due process because the DA has a financial interest, despite what she says, in pursuing a case capitally. I'd be filing a motion to disqualify her as soon as possible, (Kent, most defense motions are in response to things the state does, like failing to provide discovery)
I have filed motions to disqualify DAs from prosecuting habitual felons when a grant pays the salary of the DA. Obviously, the DA has an incentive to try as many habitual felon cases as possible to justify the grants paying his salary.

North Carolina is very careful about this kind of thing. For example, when we get appointed to a capital case our hourly rate was 10$ an hour more than when a case is noncapital. However, if a capital case is declared noncapital our rate doesn't go down because that might create the appearance of a conflict because we would have a financial incentive to not make a big effort to strike the death penalty. (it's ridiculous to think any of us would do that, but theoretically its possible)

Posted by: bruce cunningham | Feb 28, 2008 8:13:59 PM

There is one side of the economics of the death penalty that doesn't get much mention. Plea deals like this one have got to save a lot of money.

Posted by: William Jockusch | Feb 29, 2008 8:42:44 AM

In Virginia, the state will provide more funds to Commonwealth's Attorney's Offices in part based on the number of capital cases. Needless to say, smaller jurisdictions will pursue the death penalty at every opportunity to get more funds from the state.

Sounds like the same thing is going on in Colorado.

Posted by: Zack | Feb 29, 2008 9:46:09 AM

If the deterrent effect of the DP is real, the policy makes sense. A prosecutor who seeks it is providing deterrence throughout the state. This is what economists calls a public good; it makes economic sense to pay them for it.

Posted by: William Jockusch | Feb 29, 2008 2:49:19 PM

How would it be a "conflict of interest" anyway? The prosecutor is not the judge. I suppose if the prosecutor just did nothing and prosecuted no one, he would eventually get thrown out of office--does that mean that every prosecution he brings reflects a conflict because he might just be doing it to keep his job?

Posted by: Jay | Feb 29, 2008 7:05:36 PM

Jay, thanks for the question about the
connection between a prosecutor receiving
funds for making decisions affecting the
potential parameters of punishment for a crime
and a conflict of interest. I have done a lot
of work on this and in State v Cates in the
NC Court of Appeals the Court did not reject
the legal basis of the argument, just held that
I did not causally connect the decision to
seek habitual felon punishment in that particular
case and the federal block grant that was
paying the DA's salary who handled the case.

In my view, only the legislature can, consistent
with the equal protection clause and separation
of powers, set the outer boundaries of punishment
for a given crime. For example, in NC, as in
Colorado it sounds like and California for sure,
the law allows prosecutors to exercise
discretion as to which defendant should be
sentenced under a state's three strike law.

In my opinion, such discretion is unconstitutional
but it emanates from a single sentence in
Oyler v Boyles which is pure dictum and simply
a lapsa lingua.

So, anyway, a prosecutor has his salary paid
by a grant earmarked for prosecuting habitual
felons. (I know of this happening in six counties
in NC) The prosecutor has to file quarterly
reports setting out how many persons were
subjected to sentencing under the three strike
law. If such prosecutorial discretion is allowed
and the DA's numbers are a little low that
quarter, then the unfortunate guy who is the
next up for prosecution is going to get hit
with ,as they say here, "the bitch." ie.
habitual felon.

So, an enhancement in sentence is not related
to the crime or the criminal, but to the
numbers the DA needs to justify his salary
that quarter. Sounds like a conflict to me.

I have no problems with grants which pay for
extra prosecutors to prosecute, say murder cases.
The presence of the grant does not "create"
more murder cases. As opposed to the temptation
of the grant creating more three strike cases
or capital sentences.

I have actually overheard an assistant DA
tell a friend in the lawyer's lounge that the
existence of the habitual felon grant progam
puts more pressure on them to subject more
defendants to enhanced sentences for their
underlying crimes.

In my opinion, such money driven discretion
violates due process.

bruce cunningham

Posted by: bruce cunningham | Mar 1, 2008 12:56:17 AM

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