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February 18, 2008

Wondering about death and dollars in Ohio and Texas

Some commentators are questioning my (inflated?) guess that Texas may have spent a billion dollars seeking the death penalty for Johnny Paul Penry over the past three decades.  Though I am not sure my economic guess is reasonable, I am sure that it is a serious problem that nobody has seriously investigated (or even seriously asked) how much money has been devoted to trying to have Texas execute Johnny Paul Penry for his 1979 crime.

I stress this issue now because the national spotlight is turning to Ohio and Texas in the campaign for the presidency.  Interestingly, these two states have had the most executions over the last three+ years: Ohio has had 18 executions from 2004 to the present; Texas has had 92 executions from 2004 to the present.  This fact alone justifies a serious examination of the death penalty's benefits and costs as the national political focus turns to the states that are modern national leaders in administering the death penalty.

Of particular concern to me, as the Penry discussion highlights, is how much money Ohio and Texas have spent on the social program of capital punishment since 2004.  Though I cannot speak for Texas, I know Ohio is facing very difficult economic times (as shown in this news report, noting that Governor Strickland recently announced having to "cut up to 2,700 state jobs and shutter two mental hospitals as part of belt-tightening plan to offset a projected $733 to $1.9 billion shortfall").  Disturbingly, I never hear any discussion about the significant costs of a capital punishment system or about the potential savings that a move away from the death penalty might bring in Ohio and elsewhere.  (Weirdly, the ABA's massive moratorium reports covered every death penalty issue except the two most practically important: costs and execution protocols.)

As regular readers know from prior posts, I tend to favor the death penalty in theory.  But I am always bothered by the lack of sober economic analysis concerning the death penalty's real costs, especially in states like Ohio and Texas that actually execute killers.  I wonder if any of the candidates or their staffs or public policy groups might start talking about these issues as Ohio and Texas become the hot political battleground states over the next two weeks.

February 18, 2008 at 12:19 AM | Permalink


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Sad to see that you have finally and clearly come down off the fence on the side of the death penalty. Those who have visited here in the hope of support for sentencing reform, in line with the indisputable movement of public sensitivity and desire for a better relationship between the law and human rights and practices, and as also shown by the wider world community, will be bitterly disappointed. It seems the fog of academic analysis has enveloped you, and all but blotted out from your consciousness the significance on the future development of society and indeed of sentencing policy in general, of finally breaking the cord with the death penalty. Braver mortals than you have already started the journey, New Jersey completing it this year and perhaps others very soon. Perhaps it is an affinity with Ohio, one of the two states you admit as leading the entrenchment of state rights to commit executions, that has proved irresistible. You may fight for the correction of error concerning individuals, but your moral authority for the fight for more general reform of sentencing is now questionable. The benchmark had to start with the ultimate punishment - the death penalty. As I have argued before, everything else lacks focus and proportionality while that persists. Tinkering with constitutional interpretations, which, as we have seen from the Supreme Court in recent times, can be so easily reversed with a changing balance of political composition (or political pressure), is no basis for reform of law to reflect evolving standards of humanity and civility. But then perhaps that is not at the heart of your inner value system. Regrettably then we have to leave you behind to wrestle with your conscience as you weigh questions of economics and cost-benefit analysis. While it may eventually lead you to the same path, there is no honor or humanity in that.

Posted by: peter | Feb 18, 2008 3:25:08 AM

Peter: In New Jersey, they achieved DP abolition by agreeing to lock more humans in cages for their lives through LWOP. Why do you think this reform is a positive one? Similarly, the decline in the death penalty over the last 9 years has come with a massive increase in other in-human development --- like supermax imprisonment and other extreme forms of human depravation.

I am very interested in "a better relationship between the law and human rights and practices," I just live in a real world in which all matters --- ranging from medical care to civil liberties --- is necessarily subject to sober cost-benefit analysis. And, until you give all your money and worldly possessions to groups fighting the death penalty around the world, I will accuse you of being a hypocrite because you live personally by cost-benefit analysis but then condemn others for wanting to apply your own life choices to other matters.

Posted by: Doug B. | Feb 18, 2008 9:52:41 AM

I'd have to second Peter's observations. With all due respect, Professor, it is indeed lamentable that someone with such academic brilliance can have so little real insight, often to the point of being callous. The demise of the death penalty - which is inevitable, and the approach of which should be obvious, especially to those most familiar with its operation - will not come about because of anything much being done in academia, but, in the US, by a slow and lagging process of culturally growing up. Where the tipping point is, and how and when we'll finally get there, is the only real remaining question.

Posted by: Scott Taylor | Feb 18, 2008 10:10:46 AM

"[C]ulturally growing up"? I always find it interesting how abolitionists cast themselves as oh so enlightened. The real story of the death penalty is a bunch of elitists trying to take away society's right to impose capital punishment.

Posted by: federalist | Feb 18, 2008 10:39:21 AM

"The demise of the death penalty - which is inevitable, and the approach of which should be obvious"

This is true only in the mind of abolitionists. In Texas for the entire period of Penry's incarceration, the anti-death penalty movement woke up each day, as though it were Groundhog Day, believing firmly in the "inevitable" end to capital punishment the way Marxists believed in the end of capitalism or neconservatives in the "end of history." At the end of the day, every day, it turned out the light they thought they saw at the end of the tunnel was a train.

I could be wrong, but I seriously doubt we'll eliminate capital punishment in my beloved home state in my lifetime. Most Texans just think some people need killin'.

Posted by: Gritsforbreakfast | Feb 18, 2008 10:43:34 AM

If you support (or do not oppose) the death penalty in theory but think that is incredibly wasteful in practice, isn't this ample reason to oppose it? Given the tone of your posts on the costs of the death penalty, you believe it is a *profound* waste of time and money, and it distracts from other important problems in the criminal justice system. I'm confused. Is the way we talk about the death penalty so distorted that strongly opposing it in practice (but not in theory) somehow makes one a supporter?

Having read this blog for sometime now, I would characterize you as an opponent of the death penalty as it is currently practiced in the United States who nevertheless feels some need to concede to death penalty supporters that they have many strong arguments. One of the ways in which the death penalty is most wasteful is that we spend so much time arguing about it in theory when it is so clearly broken in practice.

Posted by: dm | Feb 18, 2008 10:51:19 AM

Federalist, Everything in politics is about a “bunch of elitists” doing something or other. Everyone can call their position “enlightened.” After all, even the “kill everyone” crowd says that their position is enlightened. Moreover, even Hitler with his “kill all the Jews” philosophy could make some claim to being an elite. My point is simple: policy decisions will be made by the elite.

Whether “society” has a “right” to “impose capital punishment” itself is a matter that we (the elite) will decide amongst ourselves. The issue is simply too complicated for the non-elites to decide. But, this is a good thing. The non-elites tend to be more concerned with watching TV, which is what they are better suited for, anyway.

Anyway, I find your position curious (after all, it is rare that I get to talk to non-lawyers outside a controlled environment). Whenever a state decides to eliminate the death penalty, in your mind, it is the “elites” making some anti-proletariat decision. Whenever a state attempts to expand the death penalty, it is somehow an example of democracy in action.

Whatever the case, I urge you once again to state your ideal “error rate” in imposition of the death penalty. Since we all agree that people will be killed based on prosecutorial misconduct, inaccurate witness statements (ranging from perjury, innocent mistakes), judiciary errors, we should set a target rate. Perhaps if we agree that no more than 60% of executions should be in error, we can have a more honest conversation about whether the death penalty is a good thing.

But, I did have a couple of solutions about how to try and explain the issues to the non-elites.

1) Increase incarceration rates. Probably to about 45%. This way, all the non-elites will have some personal connection to someone incarcerated. This can be done by simply creating more crimes, or providing financial incentives to arrest and convict people (based on erroneous evidence if necessary). This way, the non-elites will have some connection to someone in jail, so they can better make the decision.

2) Also, states should probably increase their gas taxes by 10 cents a gallon to pay for the price of all incarceration, and adjust that rate based on change of the numbers of prisoners per year.

Posted by: S.cotus | Feb 18, 2008 11:08:36 AM

The error in a DP case is that the wrong person is executed (this error can be corrected in part by executing the right person). It appear that the DP error rate is less than 1% and larger than 0.1% and to put that in perspective if one out of every 10,000 commercial aircraft takeoffs resulted in a crash that would be a 0.1% error rate. My view is that a 0.1% error rate is not acceptable in either case.

The problem with a 45% incarceration rate is that everyone who is able to work will have to be a prison guard and they do not pay enough taxes to pay themselves.

Posted by: John Neff | Feb 18, 2008 11:33:10 AM


Correction on the situation in NJ. The reality is that judges in NJ already had discretion to sentence a defendant to 85% of life (so called NERA life). It is odd to think that about a term like "85% of life" but it works out to a little more than 63 years (life was calculated, for purposes of the statute, at 75 years). Life is also the presumptive sentence for a person with more than two prior convictions who commits certain delineated felonies including murder or aggravated manslaughter.

At the time the LWOP statute was passed there were in excess of 500 people, and by some calculations more than 1000 people, serving the functional equivalent of LWOP. Put another way, while I understand your hatred of LWOP, the practical reality is that NJ already had its functional equivalent.

Posted by: withheld | Feb 18, 2008 11:55:28 AM

Thanks for the info, withheld, which confirms so many of my instincts about the pernicious impact of the extreme anti-DP abolitionist movement.

New Jersey is being help up as a paragon of justice for formally eliminating what was already a non-functioning death penalty. But complete lost in all the talk is the reality you highlight: in New Jersey "by some calculations more than 1000 people, serving the functional equivalent of LWOP."

This means that in the supposedly progressive state of New Jersey, there may be more people RIGHT NOW subject to a living death in a small cage for the rest of their lives than have been executed throughout the United States over the last 40 years. And I'm supposedly "callous" because I am more concerned about so many forgotted people being locked in cages like animals than about the very rare brutal killer who might actually be subject to a sentence that our democratic process has deemed fitting.

Anyone who spends a lot more more time concerned about a few murderers sentenced to death than concerned about the tens of thousands more less awful offenders sentenced to LWOP are the ones who, in my view, deserve the label "callous."

Posted by: Doug B. | Feb 18, 2008 12:10:06 PM

Perhaps the detected "callous" attitude would be better described as "indifference."


P.S. Death is different. Those is prison are alive, can breathe and - most importantly - can change.

Posted by: Scott Taylor | Feb 18, 2008 1:13:40 PM

Doug - It is not with the scale of the problems of criminal sentencing that we disagree. I will argue just as fiercely as yourself that LWOP and long sentences are inhumane and totally disconnected with any realistic assessment of natural justice. I read this letter today:
Letter: Tip of the iceberg
Chico Enterprise-Record
Article Launched: 02/18/2008 12:00:00 AM PST

It's about time someone other than myself and those of us who have also had loved ones railroaded by the district attorney will speak out. Gregory Wright is just one of many who have been overcharged and sentenced excessively.

The public has no idea what goes on in those courtrooms. We would like to believe the system works, but how can it when charges are made up if the DA's office doesn't get what they want? Most jurors also have no idea what goes on in the world of crime and drugs. They live in a world of reading and believing whatever is stated by the law.

Our son and his co-defendant were made out to be the most horrible people you could have imagined. When all they did was confront two drug dealers. When it got out of hand, one was unfortunately stabbed and died. But the DA's office made these two dealers look like the most perfect people in town. The living brother is still in the courtrooms today because of crime he is still committing. Our son didn't even do half what they said he did, and he got 66 to life. His co-defendant was the one who defended himself and was responsible for the death of the brother. He got less of a sentence than our son. None of it is consistent. — Gloria Morgan, Chico

and another story that I have now lost reference of - A man was going to be arrested for a traffic violation and the Florida police did not believe he was paraplegic so they dumped him out of his wheelchair to the floor before searching him.

These are the realities of the mess our "justice" systems are imposing upon us. It is a consequence of a mindset that insists on maximum punishment and on dehumanizing anyone thought guilty of crime, let alone proven so. The situation is exacerbated by a system in which politicians, prosecutors and police are all rewarded for meeting notional targets and looking and sounding tough. We basically agree on most of these things I suspect.

It is your refusal to accept both the linkage of the existence of the death penalty with such irrational behavior in the name of "justice", and acceptance that the only practical and logical means of tackling the problem being a top down realignment of all sentencing starting with the abolition of the death penalty, that I find intellectually incomprehensible. It is only your admission that you find the death penalty "acceptable in theory" that explains this - and again, if this is truly the case then we differ on fundamental levels of moral belief.

The law, and sentencing, must both be rooted in and responsive to the consequences of their being. The object of the law is ultimately to bring order to our lives. Too much of the existing criminal law brings profound disorder to whole sections of society. The object of sentencing is to deliver a real sense of justice tempered by appreciation that human beings are inherently fallible in a whole gamut of ways yet capable of reform given appropriate supports etc. These fundamentals are being ignored by substantial bodies within the justice and political systems.

Once you accept that the death penalty today has outlived its purpose and moral credibility, then you can move on. Criminals do not have to "suffer" to achieve justice. It is a mindset that is absolutely at the core of the sentencing issue - and it begins, like it or not, with the death penalty.

Posted by: peter | Feb 18, 2008 1:42:19 PM

Scott, I fully agree that "death is different," and peter I fully agree that "Criminals do not have to 'suffer' to achieve justice." Indeed, it is these very premises that make me MUCH more concerned about the thousands of people who are serving LWOP sentences nationwide for repeat drug dealing or other non-homicide crimes than about the few killers who in Texas and a few other states who might be executed for causing an innocent person's death.

The sad truth is that those who murder persons in a brutal fashion and then get sent to death row often end up suffering far less (while getting a lot more sympathy) than many persons who commit far lesser crimes. Why are DP activists so indifferent to the suffering of the 20,000+ persons confined in SuperMax facilities or the thousands more who will spend their lives in cages just for being in the drug trade? Many of these criminals have caused no innocent deaths or even much suffering in others, but they get ignored by those who want to preach that "death is different" but do not recognize that this very reality is what drives affinity for the death penalty in our democracy.

I ask anyone on a crusade about death penalty has ever really thought about whether the time and money invested in death penalty abolition might save a lot more lives if committed to medical and pre-natal care for the poor and/or to technologies to prevent the tens of thousands of lives that are lost to traffic accidents every year. I still think that the folks being truly "callous" and "indiffert" are the ones that do not seriously consider the opportunity costs of an elitist crusade against the death penalty.

Posted by: Doug B. | Feb 18, 2008 1:59:58 PM

I don't know that eliminating the death penalty is going to have much affect the existence of LWOP for many more people one way or there. I also think use of unecessary killing as an instrument of criminal justice is more significant than locking someone up for life, regardless of the numbers involved, so the cost/benefit approach is just a non-starter for me. Those behind bars (even in a Supermax environment, although I certainly don't advocate any needlessly harsh treatment) for life can still have those lives be very meaningful. Many have done so. And WE are better off for not engaging in the (unecessary) killing, regardless.

Posted by: Scott Taylor | Feb 18, 2008 2:32:00 PM

It might be informative if you actually explained what link you see between the misbehavior of sheriff's deputies towards a guy in a wheelchair and the death penalty. Otherwise, you don't strike me as especially intellectually comprehensible yourself.

Posted by: Jay | Feb 18, 2008 2:35:41 PM

Jay - actually I think the post does put the story into context if it is read carefully - but in a nutshell for you, the lack of respect for fellow human beings, whether guilty of a criminal act or not, is leading to ever more common abuse - from the basic treatment of a potential offender in custody to the sentencing of virtually anyone, including those convicted of murder. Given that the taking of a life is the greatest abuse of all, and the death penalty attempts to legitimize the act, it seems a logical and legitimate place to start the correction process - by accepting that the state and the law should not punish above and beyond the code of respect for human life that is expected of all citizens.

Posted by: peter | Feb 18, 2008 4:12:46 PM

How is "the taking of a life the greatest abuse of all"? I would think that the incarceration of an innocent is far more of an abuse than the execution of a murderer.

Posted by: federalist | Feb 18, 2008 4:34:57 PM

Doug - you yield nothing, and neither did I expect it. My previous response to you would, I believe, be typical of my fellow campaigners for dp abolition. The dp is wrong in itself AND it contributes significantly to the state of sentencing at all lower levels. If it can successfully be argued that the ultimate penalty in society should be LWOP - and that should be defined as applicable only to the "worst of the worst", then there comes into being the mechanisms by which a correction of sentencing relating to lesser offenders can be rationalized. If you want to see significant change in your lifetime, only something this "radical" stands a chance of achieving it.

Posted by: peter | Feb 18, 2008 4:35:40 PM

federalist - in that there has to be a defined hierarchy of abuse at all - the principle on which sentencing is based surely - kidnapping (the nearest criminal equivalent of incarceration of an innocent) does not normally attract the death penalty so far as I know. I think my statement stands (though since I have particular interest in wrongful conviction in general, I agree that the two run pretty close).

Posted by: peter | Feb 18, 2008 4:46:48 PM

Jay, It is unlikely that non-elites will ever make intellectually coherent arguments. (For this reason I ignored most of that comment that you were responding to.) That said, the fact that at least some of them have a connection to an erroneous conviction means that the system is becoming more democratic. Only when most Americans have a direct connection to whatever level of injustice is present in the country can we be assured that criminal justice is managed in a democratic way. As it stands now, we (i.e. the lawyers) are in control of everything that the non-elites see, so it is unlikely that any proposed policy decision coming from the non-elites would be based on anything approaching complete information.

Mr. Neff, As a practical matter it is impossible to tell what the number of erroneous convictions in the country is. At best, what we see now is exonerations (based largely on DNA), and very few exonerations based on 1) prosecutorial or state misconduct; 2) an erroneous finding of mental state by the jury; 3) procedural mistakes; etc. In fact, the only way you will ever know if someone is convicted erroneously is if they are able to get a remedy for their incarceration (or their conviction reversed on direct appeal).

Posted by: S.cotus | Feb 18, 2008 5:10:01 PM

Peter, i don't think it's even close. If you were to choose between an innocent man being convicted of anything or a guilty person getting death, what would it be? Even if I were the most fervent anti-death person on the planet, I would have to agree with the proposition that an innocent person getting convicted of shoplifting is more of an injustice than a guilty murderer being executed.

Posted by: federalist | Feb 18, 2008 5:18:58 PM

federalist - as usual you distort the debate for your own ends - you begin by reference to my term - "abuse" - and then equate it with your own - "injustice". The two are of course quite different. A guilty murderer being executed is not an injustice - but it may be an abuse. An innocent getting convicted of shoplifting certainly is an injustice - whether it is also an abuse will depend on the reason for the wrongful conviction and/or the length of sentence imposed.

Posted by: peter | Feb 18, 2008 5:48:36 PM

If protecting public safety were the only consideration we would not sentence people to die in prison because the threat to public safety diminishes with age for most such convicts. But the real reason for the DP and LWOP is retribution. A prisoner in a geriatric cell block is not a significant threat to public safety and often their condition is such that retribution is irrelevant.

My question about LWOP is how much retribution is enough? My view is that 25 years may be sufficient and 35 years is more than enough. The difference in incarceration costs for a 30 year sentence and LWOP is about $1 million (not including terminal nursing care for LWOP).

Who benefits from retribution and how would one compute the cost to benefit ratio for retribution? In Iowa we have about 600 lifers and most of them are in maximum security which costs about $50,000 per inmate-year and for them we have about $24 million for public safety and retribution costs and about $6 million for retribution only because the public safety cost is minimal.


I agree that it is difficult to determine the number of false convictions but they are most likely to be the result of false ID, false confessions, concocted confessions and bad forensics. As you noted misconduct is not as likely a cause for a false conviction. We we are finding is when people look for such problems they are finding them far too often in my opinion.

Posted by: John Neff | Feb 18, 2008 10:17:07 PM

Mr. Neff, How much would be "too often" and how much is "just right." I figure we need to think in those terms, as 0 and 100 percent are impossible.

Posted by: S.cotus | Feb 18, 2008 10:22:48 PM

BOJ statistics suggest that about 50,000 persons are sentenced to prison each year for a violent crime (average sentence about 7.5 years) and a 1% false conviction rate would give about 500 false convictions for that set of inmates. I doubt that the rate is that large.

However I don't think setting an arbitrary limit for an acceptable rate is very useful. I would much rather see efforts made to reduce the incidence of false ID, false confessions, concocted confessions and bad forensics any criminal case that strongly depends on that type of evidence should raise a red flag in my opinion.

Posted by: John Neff | Feb 18, 2008 11:30:55 PM

There is a way, broadly supported by economists, to cut criminal justice costs and possibly affect the underlying number of murders in this country to a significant degree: Decriminalization and/or regulation of narcotics. In other words, end the drug "war."

The high criminal penalties associated with both possession and possession for sale create a very high tax on the drugs, effectively. Even states like CA, which offers drug diversion programs for first offenders, are only offering programs that are very costly for individuals in practice, where treatment is likely to be inadequate for individuals suffering from addiction. The same holds true for first offender programs offered for people convicted of DUIs. They cannot afford the costs of attending these programs and many will fail. Federal laws prohibiting student financial assistance for those with a prior drug conviction is practically designed to hit those who would benefit from such assistance most. Even without addressing real or perceived racial imbalances, the drug war is undoubtedly the most expensive failure in domestic policy since prohibition.

The punishments associated with drug crimes (and conspiracy) have not gone unnoticed by the coordinated groups of dealers and users most likely to be convicted of an offense. We could undermine a lot of this through decriminalization and bringing down the effective tax imposed by high sentences. I firmly believe it will result in an overall decrease of other crimes, ranging from property crimes to prostitution.

Doug: If you allow me to come to your defense, I agree that the abolitionist movement has focused too much energy on the DP; although I oppose it, I believe there are other areas of sentencing that affect far more defendants that need to be addressed. On the other hand, there is a feeling among many if not most abolitionists that death is qualitatively different. That view has been reinforced by our courts. That seems to account for the passion of their movement. By contrast, the "pro-victim" anti-criminal defendant movement is motivated by both preserving the DP and increasing sentences. NJ aside, they have been far more successful.

Posted by: Alec | Feb 19, 2008 2:06:31 AM

Mr. Neff, Whether to distinguish between violent and non-violent crime is an interesting issues. The thing is, we really don’t know and we never will know when a conviction is “false.” Instead, we seem more interested in ensuring that the process by which people are sent to their death or to a hole for the rest of their lives is fair. In fact, “actual innocence” is pretty much a rare footnote to any civilian court’s review these days.

Now, don’t get me wrong. I analyzing the process is probably the only practical way to review convictions. However, in reviewing convictions, courts employ a rather high standard of review, which allows for errors that admittedly are errors, but are “harmless” (and in many cases the courts don’t even reach the underlying issue). While, again, I see the reason for this, this seems to be a bit hypocritical, since it is neither a review of the underlying process, nor a review of the underlying facts. So, for this reason, I think we can glean that the number of procedurally erroneous convictions is much higher than we know it, and the number of factually erroneous convictions will never be known.

Posted by: S.cotus | Feb 19, 2008 6:08:34 AM

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