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November 17, 2010

Indiana Attorney General urges examination of death penalty's costs

As detailed in this effective local article, which is headlined "Lawmakers urged to debate steep costs of death penalty," Indiana's AG is urging his state to consider seriously the economics of the administration of the death penalty.  Here are excerpts from the piece:

Attorney General Greg Zoeller used a legal summit to kick-start a statewide discussion of the financial burdens associated with the death penalty in Indiana.  He told 75 lawyers and law students at a University of Notre Dame event Monday that state lawmakers and policymakers should take a hard look at the costs and fiscal burden of capital punishment cases in Indiana.

But he did not call for a repeal of or moratorium on the death penalty. He also had no specific proposals.  Zoeller said the costs for a lengthy capital murder case can be exorbitant for a county government, including the costs of death penalty-qualified defense lawyers, expert witnesses, courthouse security and lodging for sequestered jurors.

And the costs to taxpayers continue to accumulate during the appeals process that can take 10 years or longer to play out.  It cost more than $500,000 in defense costs alone to try a recent death penalty case in Warrick County, Zoeller spokesman Bryan Corbin said.

And at a time of shrinking revenue and when the judicial branch has little flexibility to cut budgets, Zoeller said legislators and policymakers should look carefully at cost structures driving the expense of death penalty cases at the trial and appellate levels.

“It is time that we in the criminal justice system have a candid conversation about the economic impact of capital punishment in Indiana,” he said.  “I don’t claim to know the answers, but as the state government’s lawyer sworn to uphold the laws of Indiana, I hope we can trigger a frank discussion of these questions.  We serve the crime victims and our constituents –- the taxpayers –- best if we confront a problem directly and objectively.”

Sen. Brent Steele, R-Bedford, chairman of the Senate Corrections, Criminal and Civil Matters Committee, said he doesn’t think lawmakers are interested in getting rid of the death penalty.  “There are some cases that are so heinous in nature that the only penalty that is just is death,” he said....

Larry Landis, executive director of the Indiana Public Defenders Council, believes attempts to cut costs could cause shortcuts in defendants’ due process, increasing the chance of that an innocent person would be executed.  “Cost is really a false issue,” Landis said. “We’re only dealing with a handful of cases filed each year. … In terms of criminal justice expenditures, it’s a drop in the bucket.”...

“If you want to avoid the expense of a death penalty case, don’t file it.  File it as a life-without-parole case, you get the same result, without all of the expense,” Landis said.

November 17, 2010 at 11:00 AM | Permalink


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This is another argument we've been over and over.

The first thing to do is to disincentivize the filing of frivolous and junk motions by the defense. Having failed at the polls and in the SCOTUS, abolitionists are trying to advance the agenda they otherwise can't sell by larding capital cases with unnecessary costs and delay. This can be stopped (see, e.g., Virginia) and it should be.

But that to one side, there are numerous ways to raise money for the legal system. Significantly increase yearly bar fees (mostly nominal at present), increase fines, require pro bono service as a condition of bar membership, etc. That something is hard doesn't mean it's impossible.

It was not so long ago in US District Court in the EDVA that, when a defendant made his initial appearance and needed a lawyer, the judge would look around at the audience and point to Attorney X, who was waiting for his case to be called. The judge would say, "Mr. Attorney X, the court knows you to be a man of great competence, high character and a sense of community service, and I'd very much appreciate it if you'd take this case."

And that would be that.

In a capital case, something analogous can be done. If there's no money for the defense, the judge goes back in chambers, calls up the managing partner of the biggest, richest firm in the state, and gives him the same line. I guarantee you the defendant will get first class representation at no taxpayer cost. As an extra added bonus, the legal profession will improve its lagging public esteem by contributing something to the community rather than just being seen out on the country club golf course every Sunday afternoon.

Posted by: Bill Otis | Nov 17, 2010 11:26:24 AM

How fair and balanced of you to post.

Posted by: someone who knows you | Nov 17, 2010 12:09:08 PM

I do agree with Bill Otis that capital cases are burdened by many motions and appeals that turn out to lack merit. But our system requires that they be heard. It is not difficult for defense counsel to come up with an issue that, however unlikely it may be to succeed, rises just high enough to be nonfrivolous. The judge that dismisses such claims summarily is liable to be reversed on procedural grounds, and the defendant gets another lap around the track.

The Supreme Court has created a mess with its capital jurisprudence, and most states have enacted laws to implement the Court’s rulings, even if those states would have preferred to do something different. I do not see five votes on the Court to unwind maze of crazy DP/habeas precedents their predecessors created, even if (as seems likely) the current justices would never have ruled that way as an original matter.

Posted by: Marc Shepherd | Nov 17, 2010 12:28:05 PM

Alabama has 300 plus capital cases pending at any one time. How many big, rich firms in the state do you think we have? This is being tried, though, on post conviction. What we are seeing is several firms jumping in to help, then discovering that their civil lit training does them no good on the criminal side and that they are not prepared to shell out thousands of dollars on experts. We have big, rich law firms racking up pro bono hours while failing to competently represent their clients. Your suggestion will not work in practice. I'm afraid that the state is just going to have to continue to provide counsel and that counsel is just going to have to continue to zealously represent his client.

And, by the way, what is a frivilous motion or pleading? I suppose the MR and JU pleadings looked frivilous - until they were successful. Apprendi, Booker and Crawford were frivilous - until they won. Today's frivilous motion may be tomorrow's new law.

Posted by: Ala JD | Nov 17, 2010 1:07:30 PM

"The Supreme Court has created a mess with its capital jurisprudence"

This is one of the main reasons of endless litigation. I will cite one example and others can chime in if they want. In 1990, SCOTUS upheld Walton vs. Arizona. Then in 2002, they issue Ring vs. Arizona which invalidated Walton. Several other states that wrote their statute after Walton had to rewrite them along with Arizona. In 1990 it is ok, in 2002 it is not.

Posted by: DaveP | Nov 17, 2010 5:55:54 PM

I'm curious, Bill; when you were an AUSA, what was the average number of pro bono hours the attorneys in that office did, per year?

I'd be all for attorneys in big firms taking on death penalty cases pro bono. I don't know if the partners would go for that. It would be manifestly unfair to force solos to take on a death penalty case pro bono, though. The vast majority of solos don't make huge amounts of money and that time commitment would be a major problem for them.

But yeah, if prosecutors agreed to donate an equal amount of time to, say, consumer protection litigation or the like, we should most definitely encourage attorneys who can afford it to take on DP cases pro bono.

Posted by: SRS | Nov 17, 2010 7:32:44 PM

SRS --

AUSA's already do a considerable amount of consumer protection work by bringing to book swindlers like Ken Lay and Bernie Madoff -- to the vast consternation and (still) complaining of their defense counsel.

I trust that you'd agree with me that the consumer protection that will get the most attention from crooked businessmen is the kind that will put the latter in fear of going to the slammer, and impose full restitution as part of the sentence.

Posted by: Bill Otis | Nov 18, 2010 3:38:50 PM

Bill -

So the answer is "none," then?

Posted by: SRS | Nov 18, 2010 4:00:50 PM

SRS --

The answer is I don't know. Never asked.

The other answer is that your question doesn't make any difference and is a (weak) ad hominem diversion. Whether it's a good idea for the legal profession to do more pro bono work and take more responsibility for alleviating the costs it creates has nothing to do with "what...the average number of pro bono hours the attorneys in [the USAO for EDVA] did, per year" when I was there (ten years ago).

Good grief. There's no rule requiring you to try to personalize these issues with me. The public responsibilities of the legal profession have zip to do with my individual record (or yours, which I have not and will not ask about), and still less that of my (former) office, or yours. Do you not understand that it's a larger issue?

Now I'll repeat the observation you avoided: "I trust that you'd agree with me that the consumer protection that will get the most attention from crooked businessmen is the kind that will put the latter in fear of going to the slammer, and impose full restitution as part of the sentence."

Posted by: Bill Otis | Nov 19, 2010 1:10:11 PM

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