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.

Some recent related posts:

• Great new (though still dated) examination of the death penalty and plea bargaining
• CNN now talking about the costs of the death penalty and state reforms 
• States considering laying off the death penalty during tough economic times
• The economic case against the death penalty getting more and more attention
• More discussion of cost concerns in debates over the death penalty
• Capital case cost concerns continue to inform reform debate
• Still more discussion of the costs of the death penalty
• "Opponents Focus On Cost In Death Penalty Debate"
• Ohio's death row getting smaller (though new AG still laments pace of appeals)
• Potential Ohio AG candidate talking about speeding up capital appeals
• What might 2009 have in store for . . . the death penalty in the US?