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April 14, 2009

Sixth Circuit concurrence talks about capital punishment's economic costs

As detailed in links below, lots of legislators, advocates and media folk have been talking about the economic costs of the death penalty lately.  But today in Wiles v. Bagley, No. 05-3719 (6th Cir. April 14, 2009) (available here), Judge Martin writes a concurrence in the affirmance of an Ohio death penalty that explores this issue from a judicial perspective. Here is how this part of the concurrence starts:

Now in my thirtieth year as a judge on this Court, I have had an inside view of our system of capital punishment almost since the death penalty was reintroduced in the wake of Furman v. Georgia, 408 U.S. 238 (1972).  During that time, judges, lawyers, and elected officials have expended great time and resources attempting to ensure the fairness, proportionality, and accuracy that the Constitution demands of our system. But those efforts have utterly failed. Capital punishment in this country remains “arbitrary, biased, and so fundamentally flawed at its very core that it is beyond repair.”  Moore v. Parker, 425 F.3d 250, 268 (6th Cir. 2005) (Martin, J., dissenting).  At the same time, the system’s necessary emphasis on competent representation, sound trial procedure, and searching post-conviction review has made it exceedingly expensive to maintain.

The system’s deep flaws and high costs raise a simple but important question: is the death penalty worth what it costs us?  In my view, this broken system would not justify its costs even if it saved money, but those who do not agree may want to consider just how expensive the death penalty really is.  Accordingly, I join Justice Stevens in calling for “a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces.”  Baze v. Rees, ___ U.S. ___, 128 S.Ct. 1520, 1548-49 (2007) (Stevens, J., concurring).  Such an evaluation, I believe, is particularly appropriate at a time when public funds are scarce and our state and federal governments are having to re-evaluate their fiscal priorities.  Make no mistake: the choice to pay for the death penalty is a choice not to pay for other public goods like roads, schools, parks, public works, emergency services, public transportation, and law enforcement.  So we need to ask whether the death penalty is worth what we are sacrificing to maintain it.

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April 14, 2009 at 10:27 AM | Permalink


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The lawyer hierarchy pretextually stymies the death penalty. Then it complains that it costs too much. Old joke, parent murderer demands mercy for being an orphan. This opinion is a bad joke.

I demand this judge spend a shift guarding murderers, whose all subsequent murders have been immunized by this criminal lover hierarchy. Actually, the hierarchy has no sincere love for the criminal, except as a customer to be protected at all cost to generate the rent, their only true love.

Posted by: Supremacy Claus | Apr 14, 2009 10:52:51 AM

What a surprise, a federal judge who thinks he's smarter than legislators . . . .

Posted by: federalist | Apr 14, 2009 11:19:05 AM

This concurrance is almost enough to make me agree with SC. Tthe costs the judge bemoans have been created almost out of whole cloth by the judiciary.

Posted by: Soronel Haetir | Apr 14, 2009 11:35:55 AM

It's a decent op-ed that has no place in F.3d. He should have sent it into a newspaper or a law review instead of using F.3d as his personal soapbox. I suppose the trouble with those outlets is that they don't guarantee publication. I agree with the other commenters that it takes a bit of chutzpah for an anti-DP federal judge to complain about the costs of the death penalty when most of those costs are the fault of the judiciary.

The hyperlink didn't make it into the initial post (either that or my browser can't read it--the opinion is here):

Posted by: anonymous | Apr 14, 2009 12:01:40 PM

Let me just join in on this group trouncing too. I agree with Soronel and SC. It's a point I've made before.

Let add another point. It's sheer folly to think that the money saved is going "to go public goods like roads, schools, parks." Oh aha ha ha. Yeah, right, sure....actually, it far more likely to go to right back into the legal system as lawyers find yet more things to sue and to squabble over.

Posted by: Daniel | Apr 14, 2009 12:10:31 PM

"actually, it far more likely to go to right back into the legal system as lawyers find yet more things to sue and to squabble over."

Great comment.

Posted by: federalist | Apr 14, 2009 1:09:48 PM

Well I'm just happy to see all you angry kill-the-defendant types blame the judiciary for the costs of the system rather than defense lawyers. The latter so often get blamed when, after all, they're just doing their jobs -- trying to zealously advocate for their clients.

But while we're apportioning blame, why stop with defense lawyers and judges? How about prosecutors who repeatedly violate the Constitution in an effort to win convictions thereby making reversal all-too-common. Or how about legislatures for creating a system that, when free of constitutional error, is quite costly.

Posted by: dm | Apr 14, 2009 2:15:28 PM

dm, because the judiciary has created this morass of goofy, picayune and changing constitutional capital system

Posted by: federalist | Apr 14, 2009 2:41:30 PM

dm, it's a fair point, and abuses by prosecutors and police are part of the reason why judges were able to put together the ridiculous system that they have.

Judge Martin seems to take the justification for the judicial contribution to the ridiculousness for granted, though: "At the same time, the system’s necessary emphasis on competent representation, sound trial procedure, and searching post-conviction review has made it exceedingly expensive to maintain."

As long as he's going to write an op-ed with no specific bearing on the case in front of him, it might have been more productive to address that. Instead, his argument boils down to this: we, the judiciary, have made the death penalty too expensive to be worth it, so why don't you just give up?

I wonder how the lawyer-waste surrounding the death penalty compares to the amount of money wasted paying lawyers in civil commercial litigation to review documents and fight over discovery and paying e-discovery vendors.

Posted by: anonymous | Apr 14, 2009 3:51:33 PM

They are called legal "opinions" are they not?

I find it refreshing for a judge to tell it like it is instead of perpetuating the legal fiction that these increasingly obvious problems with the capital system do not exist - and looking the other way.

Posted by: Samuel | Apr 14, 2009 4:13:23 PM

"Or how about legislatures for creating a system that, when free of constitutional error, is quite costly."

The legislatures have very little latitude, given the Supreme Court's micromanagement in the guise of "interpreting" the Eighth Amendment.

Justice Stevens' complaining about delay and expense is a howler. As the swing vote during the critical period, he is responsible for the present situation more than any other individual.

Posted by: Kent Scheidegger | Apr 14, 2009 5:03:23 PM

dm makes the best point of this thread. A great deal of the cost comes due to the constant "pushing the envelope" by prosecutors or the failure of investigators to disclose what they are supposed to discose in the way of mitigating evidence. Several months ago a commenter suggested limiting defense motions as a way of curbing cost. Most of my motions are geared toward making the State do what it is supposed to do or prohibiting them from doing what they are not supposed to do.

Bruce Cunningham

Posted by: bruce cunningham | Apr 14, 2009 5:24:26 PM

Under One-Two-Three, Dead, the procedural bickering on Three would not matter. And all executions would be immediately upon the reading of the verdict. The hearse can pick up the defendant from the courthouse basement loading dock. The executioner can just shoot him in the head.

Even if the defendant is innocent of Three, he is a bad guy, and his execution is valid and useful. It has prevented $100's of millions in future damages. Each of these defendants generates hurricane class damage. Kill one, you save 1000's of time the economic value of their lives, each. Because of the immunity afforded the defendant by the criminal bias criminal cult hierarchy, each of those convictions stands in statistically for 1000 crimes.

That is correct, we live in a chaotic, statistically based, uncertain universe. And statistical representation is as good as it will get. We no longer live in a church based universe with a omnipotent Being that knows all acts, and can read minds for intent. This church basis of criminal law is unlawful in our secular nation.

Posted by: Supremacy Claus | Apr 14, 2009 7:05:56 PM

This whole blame the judges for their "liberal opinions" thing is overwrought. In many states, the majority of capital cases get overturned. While some portion of those are the result of opinions that you conservatives may see as liberal (and I often see as upholding the constitution) a lot of them are run-of-the-mill applications of the law in the face of clear error.

If prosecutors wanted to execute capital defendants more quickly, they could, as Bruce says, stop "pushing the envelope" and, you know, not exclude blacks from the jury or suppress the Brady material or subborn purjury. Is that really too much to ask? Why do so many break the rules so often?

I suspect the truth is these massive violations happen in all sorts of cases, not just capital ones. But judges rarely bother to correct the error in nondeath cases. Capital defendants are the only ones who get serious review on appeal. "Death is different," indeed.

Posted by: dm | Apr 14, 2009 7:50:10 PM

The biggest fraud in this opinion is that it is a concurrence. That is, the judge voted to uphold the sentence in the case. If things are as bad as he says they are (and I think they are), then the judge's obligation is to vote to reverse the sentence. If he's willing to do that, great; do so and say whatever you want. But voting to affirm and then complaining about your own vote is cowardly and whiny.

Posted by: Anon | Apr 14, 2009 8:12:44 PM

As a taxpayer, I don't really care if the judges, the prosecutors, or the defense has the dirtier hands. In this sense I might actually agree with SC that they are all in cahoots for the money.

I not expert enough to know all the solutions. But it seems to me the way we deal with the death penalty in this country is out of control and fails the basic law of proportionality. No innocent man deserves to die at the hands of the law. On the other hand, so long as the death penalty is constitutional, the state not only has the power, it has the legal obligation to carry that sentence out. It was MLK who said that justice delayed is justice denied. And that is a true for the death penalty as it is for civil rights.

Posted by: Daniel | Apr 14, 2009 8:43:14 PM

Maybe one should consider the enormous costs that death penalty litigation imposes on the Constitution. The "henious crime" exception to the Consitution (mostly brought on by elected state judges and those federal judges who still believe that "comity" matters in light of our commerce clause-run-rampant federal jurisprudence) makes bad law. Bad law hurts the overcharged as well as the innocent. In the end bad law engenders disrespect. That is why "procedural bickering matters." The never-ending problem in our Republic is to understand that the legitmacy of the government rests upon the population's adherence to the rule of law. The rule of law can never totally free itself from the tryanny of majority (democracy). The procedures protect us from the majority. It is a very small step from majority rule to a dictatorship. That's why the founders set up a Republic--to interpose law (procedural niceties if you will) between the individual and the tryanny of the majority.In the end don't disparage lawyers because they have original thoughts--operationalizing those thoughts protects the individual from being run over by the majority. The Constitution means nothing without persons who are willing to act. Criminal defense lawyers acting on behalf of a defendant not only act normatively, they also act integratively by defending the Constitution and thereby maintain the legitmacy of our Republic. There is nothing wrong with a judge pointing out the choices made are not always economically efficient.

Posted by: perplexed | Apr 14, 2009 8:56:11 PM

Perplexed: For fun, try this dangerous stunt. Have your cell phone in hand, in case you need to call 911 for a rescue squad.

Utter the V word out loud. You can't. No lawyer can. You will choke, gag, and require oxygen.

There are 17,000 murder v****ms a year. Bring on your procedural bickering with the lawyer client, the murderer. Blacks carry a six fold bigger burden of murder victimization. You seem to have no argument with the lawyer customer, the murderer. Only the smallest fraction of these victims were dispatched within the bounds of the Eighth Amendment.

Your shameless, pretextual bull is irresponsible. The first function of government is not lawyer job production, my brainy friend. It is public security. You believe we are fools in your brazen rent seeking.

Posted by: Supremacy Claus | Apr 14, 2009 9:17:08 PM

In the end, isn't it expensive on both sides--costs created both by bad prosecutors and bad defense attorneys/sympathetic judges--because it takes a lot of resources to "get it right"? In other words, if we're going to impose the ultimate penalty--death--our procedures better ensure that we're certain about it. Those procedures will necessarily be expensive if we care about getting it right before we kill someone.

Posted by: Thirteen | Apr 14, 2009 9:31:41 PM


Ben Franklin tells us what will become of persons who follow your public security argument to its extreme:

“They who would give up an essential liberty for temporary security, deserve neither liberty or security”.

Where do you draw the line. At some point you are going to be a slave. The question is do like your master?

Posted by: perplexed | Apr 14, 2009 11:26:25 PM

How is it free to lock yourself in the house, because the lawyer clients control the streets and public conveyances? How is it free for a kid to worry about getting beaten up, instead of about studying for a test in school? How is it free to not be able to criticize an irresponsible minority group because of ruinous litigation by the rent seeking lawyer promoting evil? How is it free to watch the black and white families dismantled by the lawyer carrying out the feminist and homosexual agendas so that government can replace the family in its authority in child rearing?

The lawyer runs a tighter ship than the KGB. One cannot even make a joke at work, without getting sued in the US.

Posted by: Supremacy Claus | Apr 15, 2009 12:37:15 AM

Supremacy Claus, I resent your insinuation that defense lawyers are insensitive to the enormous suffering of the victims in a murder case. Trying a capital case is emotionally draining, not the least of which is due to the awareness of the loss of the victim's families.

bruce cunningham

Posted by: bruce cunningham | Apr 15, 2009 7:23:34 AM

Yet, you go all out after knowing the client knows stuff only the murderer could. This is morally execrable.

Posted by: Supremacy Claus | Apr 15, 2009 9:21:04 AM

SC, I'm not following you. In the huge majority of capital cases there is no question about who did it. The question is whether he gets death or not. You have a very naive understanding of capital litigation.

bruce cunningham

Posted by: bruce cunningham | Apr 15, 2009 10:23:40 AM

I don't find this an appropriate place for a judge to wander in his concurrence. His comments seem more appropriate for a blog than an opinion. This is the province of the legislature.

Posted by: Gov'tGirl | Apr 15, 2009 12:01:29 PM

“The history of liberty has largely been the history of observance of procedural safeguards.”

Corley v. U.S. 2009 WL 901513, 11 (U.S.,2009)(citation omitted)

Posted by: Michael R. Levine | Apr 15, 2009 12:31:57 PM

Yes, the Sixth Circuit has several judges who think they're members of Congress. Judge Martin's personal views about the death penalty have absolutely no proper place in a judicial opinion. He should go back to high school citizenship class and learn about separation of powers.

Posted by: Matt | Apr 15, 2009 12:54:27 PM

"Those procedures will necessarily be expensive if we care about getting it right before we kill someone."

Sure, and I don't have a problem with that in theory. But all of life involves trade-offs, opportunity costs as economists say. Just how much money, just how many trade-offs all we willing to forgo to "get it right". There has to be a light at the end of the tunnel somewhere; "getting it right" can't be rationally justified as an endless morass. And at least as far as I see it, in many cases that's what we have today, an endless morass. In other words, "getting it right" can't logically mean "taking ten years to get a resolution." Because taking that amount of time is by definition getting it wrong.

Posted by: Daniel | Apr 15, 2009 1:28:57 PM

"This is the province of the legislature." is that you SC? or is it federalist?

Posted by: huh? | Apr 15, 2009 2:36:32 PM

The chaos in the sentencing phase today violates the Equal Protection Clause, and results in a racial disparity. The sentencing seems arbitrary, unpredictable, dependent on caprice. It has no scientific validation. It does not even have any established reliability statistics. It is garbage. Arguing over invalid garbage is not productive. Furthermore, your specialty failed to spot the sole cruelty of the death penalty. The date. Not even a terminal patient knows his date.

Come back for a debate when you at least have reliability statistics. Run a video tape of a trial before 2 tribunals. See if the same outcome results. Until you have reliability statistics with inter-rater reliability Kappas close 0.9, you have unlawful garbage. We have nothing to debate.

It is naive to believe current methodology benefits any party but the rent seeking lawyer, not victims, not survivors, not future victims, not the public. It generates long term, numerous, indoor jobs for lawyers. It is a show. It achieves no goal in the criminal law.

Sentencing should be taken away from the dangerously incompetent judiciary, and from the self-dealing, rent seeking lawyer.

Once guilt of any third violent crime has been established in a trial, death should be mandatory, immediate. Its cruelty should be immune from judicial review. Judicial review is itself unlawful.

There are no cruel modern execution methods. About 90% of us will die a prolonged, rough, humiliating death, a 1000 times worse than any execution method. Why a convicted felon should get a better death than most ordinary people has no justification.

Once this system is enacted, the first to be executed should be the 15,000 member lawyer hierarchy, for insurrection against the Constitution, especially Article I Section 1, and especially the Justices of the Supreme Court.They ordered the unauthorized mass murder of millions of viable third trimester babies without Fifth Amendment due process. They rank in crazed murderousness with the worst of the 20th Century tyrants. I make no exception for the right wing of the Court. They collaborated and allowed the crime to proceed. Try them for an hour. The sole evidence would be excerpts from their decisions, and their voting records. There would be no charge of collateral corruption, no false lawyer gotcha. Convict them. Hang them from the courthouse trees. Post the vid on YouTube. To deter. I have every confidence the lawyer profession would decide to change and would get deterred after that.

Posted by: Supremacy Claus | Apr 15, 2009 5:53:17 PM

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