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June 28, 2009

Counting some of the economic costs of the death penalty in North Carolina

Thanks to this entry at the Death Penalty Information Center, I saw this interesting report in the Independent Weekly, which is headlined "The high cost of the death penalty: Nickel-and-dimed to death." Here are snippets from the piece:

[C]ourt fees related to capital trials, those in which prosecutors seek the death penalty for murder, cost North Carolina millions of dollars.  The costs are incurred even if the charges are reduced or dismissed.  Given the state's budget crisis, which has forced lawmakers to cut funding for education, social services and children's health insurance, money spent on pursuing death penalty cases arguably could be better used.  Nationwide, several states, including Colorado and Kansas, are considering abolishing the death penalty to save money....

Between 2001 and 2008, N.C. Indigent Defense Services cost the state an additional $36 million when prosecutors sought the death penalty instead of life imprisonment for 733 people, according to the Indy's analysis of a 2008 IDS report.  IDS is a publicly funded agency that provides private attorneys for defendants charged with capital crimes, but cannot afford a lawyer.

Several factors contribute to higher costs for death penalty cases: The state requires that capital defendants have two attorneys; there may be a greater need for expert testimony and a there is a separate sentencing phase.  "The attorneys have to treat their cases as serious capital cases, unless they're told it's not," says Thomas Maher, executive director of N.C Indigent Defense Services.  "The result is, a significant amount of money is spent on capital cases, although at the end of the day, district attorneys as a group only find a dozen in a year they even think are worthy of putting in front of a jury — and of that group, the majority don't get death."

Of the 733 defendants IDS represented who faced the death penalty, less than 3 percent — 20 — received death sentences....  Part of the reason for the extra expense in capital cases is that attorney and expert-witness fees begin accruing immediately — even if the charges are eventually dropped or reduced or the cases don't go to trial....

Earlier this month, after lobbying against the Racial Justice Act (see "District attorneys differ on Racial Justice Act," June 10), Wake County District Attorney Colon Willoughby told the Indy that analyzing the potential savings from limiting capital punishment represents a "fallacious way to make an evaluation." 

"I don't think that we ought to be trying to evaluate someone's life in terms of dollars," he said. "What we ought to be concerned about is whether it's right and sound."

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June 28, 2009 at 07:13 PM | Permalink


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This is notable in two ways. From one perpsective, IDS is stunningly effective. There aren't many areas in criminal defense law where you have a 97% success rate, and that number is very likely improved upon once the appeal process is considered.

The flip side of the analysis reaches a very different conclusion. Prosecutors decide whether or not to seek the death penalty in a case, presumably as something approaching rational actors, and since they fail so often to get the death penalty, must be taking strategic action for some other purpose. The obvious purposes are (1) the strategic benefit of being able to bargain to a high sentence from a death penalty risk outweigh's the extra defense efforts that IDS can bring to bear, and (2) the prospect of having a death qualified jury at trial has great value even in cases where even a death qualified jury is unlikely to impose a death sentence.

Should be it ethical to bring death penalty charges in situations where 97% of the time they aren't imposed? Tax ethics generally require big yellow flags when making a gamble that unlikely to succeed on the merits, but criminal justice ethics are obviously different.

Posted by: ohwilleke | Jun 29, 2009 4:12:25 PM

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