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October 14, 2010

Sentencing jury in high-profile Connecticut case will not get to hear about capital costs

As detailed in this AP article, which is headlined "Conn. judge: Jury can't consider execution cost, " a state trial judge has today "ruled that a Connecticut man convicted of a deadly home invasion cannot bring up the cost of executions when jurors consider whether to impose the death penalty." Here's more:

New Haven Superior Court Judge Jon Blue ruled Thursday against attorneys for Steven Hayes, who wanted to include the cost of putting someone to death as a mitigating factor that might favor a life prison sentence.

The judge said jurors have the task of "using reasoned moral judgment, not counting dollars and cents" in deciding life-or-death punishment.

Hayes was convicted last week of murdering a woman and her two daughters in Cheshire in 2007.  The same jury will begin hearing evidence on his punishment Monday.

I have long thought, perhaps because I am often intrigued by law-and-econ analysis of legal problems, that exercising "reasoned moral judgment" sometimes demands "counting dollars and cents." But apparently not in the Nutmeg State.

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October 14, 2010 at 12:12 PM | Permalink


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I wonder if this would have come out differently in Missouri (it was Missouri where judges recently got financial data on sentencing options, no?)?

It seems perfectly reasonable to factor cost of punishment into any sentencing decision as one of a number of factors that would go into making a utilitarian analysis of punishment options.

Posted by: T.O. | Oct 14, 2010 12:17:49 PM

If execution cost less than LWOP, should the government be allowed to argue for capital punishment on that basis? Should the court be able to impose capital punishment on that basis?

Personally, I would think not.

The reason is that a reasoned MORAL judgment does indeed, as the court here correctly concluded, have nothing to do with dollars and cents.

Posted by: Bill Otis | Oct 14, 2010 1:36:33 PM

But, to some extent, doesn't it? I'm not saying cost of punishment should be the sole determinative factor in making the decision, but cannot efficiency or thrift be moral values?

Posted by: T.O. | Oct 14, 2010 1:47:13 PM

I agree with the judge. Counting dollars and sense may be relevant to punishment options, but it should be so at the legislative stage, not the judicial one.

We do not want to open the door to permitting conscious evaluation of dollars and cents when evaluating punishments of individual offenders.

Posted by: Pendulum | Oct 14, 2010 2:00:57 PM

T.O. --

In an abstract sense, yes, efficiency and thrift can be relevant (indeed, yesterday, in the course I teach at Georgetown Law School, we were discussing a Posner law review article that lauds efficiency as a funny kind of moral value).

However, for the issues immediately at hand in a death penalty case, no, they are not relevant.

If you believe otherwise, would you say that, yes, it WOULD BE appropriate for a prosecutor for argue for capital punishment as a cost-saving measure, if the day comes when it costs less?

Posted by: Bill Otis | Oct 14, 2010 2:11:22 PM

Except in many states, the prosecutor is limited to arguing statutory aggravators and economy is not one of them. At least in Alabama, there are no limits allowed on what can be argued as mitigation. Of course, since we don't actually pay our post convictions lawyers anything (really, nothing at all!), the argument might not work here anyway. Depends on what PCR costs in state attys and court time.

Posted by: Ala JD | Oct 14, 2010 2:59:38 PM

What about the opportunity costs of the dollar difference between the capital punishment and other options (whichever is higher)? Revenue is finite, now more than ever, despite the ongoing delusions of those growing up in the richest nation in history. Every dollar spent on one punishment is a dollar lost to other punishments and to preventative actions. Every judicial decision is a budget decision, regardless of wand-waving by the judges or professors. If the punishment with the greater cost means fewer cops on the street, earlier release for dangerous inmates, more plea bargains to clear dockets and not mete out more appropriate sanctions, then is the greater "justice" of the unconsidered, more expensive "punishment of individual offenders" really greater justice for the victims of the resulting crimes? When you're condemning other individuals to victimization by ignoring cost considerations, is this really the moral high ground that the judge thinks it is? The fact that these thoughts clearly never entered his mind or the minds of anyone who asserts that costs should never be considered answers the question.

Posted by: Michael Connelly | Oct 14, 2010 3:54:14 PM

Decisions become distorted when the task is oversimplified and full access to the problem is restricted, as in this case.

Posted by: Tom McGee | Oct 14, 2010 4:47:43 PM

In 123D, everything is cheap and easy, as counting to three. It is automated after that.

Posted by: Supremacy Claus | Oct 14, 2010 8:03:27 PM

The high cost is a scam. There is no point in wasting any time on the subject. It will end when the families of the murder victims bring street justice to these thieving crooks. Beat their asses. Arrest, try and execute the leaders of the most powerful criminal syndicate in the history of the world. It has managed to completely infiltrate the top policy positions of our government, and runs it solely in its interests and the interests of its clients, the criminals, the social parasites, the feminists, a hate group.

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