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November 27, 2016

"Oregon Death Penalty: A Cost Analysis"

The title of this post is the title of this notable research report released earlier this month.  This press release from Lewis & Clark Law School provides helpful background on the report and its findings. Here are excerpts:

A new report by Lewis & Clark Law School and Seattle University offers an unprecedented financial picture of the previously uncalculated cost of capital punishment in Oregon. “Oregon Death Penalty: A Cost Analysis” shows that the costs for aggravated murder cases that result in death sentences range, on average, 3.5 to 4 times more expensive per case when compared to similar non-death penalty cases.

Lewis & Clark Law Professor Aliza Kaplan spearheaded the research effort, fueled by the fact that there was no data to answer questions about the cost of capital punishment in Oregon. Kaplan approached co-author Peter A. Collins, PhD of Seattle University’s Criminal Justice Department, to complement her legal analysis with best-in-class quantitative analysis methods, following his similar 2015 report on death-penalty cost analysis for the state of Washington.

Looking at cost data from the Oregon Department of Corrections (DOC), the Oregon Department of Justice (DOJ), and the Oregon Office Public Defense Services (OPDS) among other sources, the report also examines the role that the lengthiness of death penalty cases plays in their total costs. These cases stretch on for decades due to the constitutional and statutory requirements of appeals and reconsiderations, which increases the net litigation costs for all parties.

The report, which took more than 18 months to compile, also looks at the use of the death penalty in Oregon, which voters did away with in 1964, but reinstated two decades later. Since 1984, 62 individuals have been convicted and sentenced to death. Of those 62, twenty-eight of them are no longer on death row. Just two of these cases have 1 resulted in death (both individuals dropped their appeals and “volunteered” to be executed), four people died of natural causes while in prison, and 22 people, or roughly 79%, have had their sentences reduced.

Offering common ground for policymakers and citizens of Oregon to examine capital punishment, the report is part of a growing trend to bring better data to the work of crafting more sound public policy. For Kaplan, the report is about increasing transparency through better data. “The decision makers, those involved in the criminal justice system, everyone, deserves to know how much we are currently spending on the death penalty, so that when stakeholders, citizens and policy-makers make these decisions, they have as much information as possible to decide what is best for Oregon,” said Kaplan.

According to Dr. Peter Collins, “There are several important takeaways from this research for Oregonians. First, the evidence clearly shows that aggravated murder cases that involve the death penalty are at least three-and-a-half to four-times more expensive than aggravated murder cases that do not involve the death penalty. Second, although the death penalty is not being pursued as frequently as in the past, the average costs when it is have markedly increased. Last, it is ultimately a futile endeavor, as the vast majority of death penalty sentences are decreased to life without parole in post conviction appeals.”

Six law students at Lewis & Clark provided key assistance in producing the report, conducting extensive legal research and field interviews with professionals throughout the criminal justice system. Third-year law student and co-author of the study, Venetia Mayhew, was involved in the project since its first day. “Professor Kaplan provided me with a remarkable opportunity to delve deep into Oregon’s death penalty system and to understand the laborious and costly nature of its processes. I was most struck by the human cost it imposes on all those who participate,” said Venetia Mayhew, JD ’17, who began her work on the analysis in her first year as a Lewis & Clark law student.

November 27, 2016 at 03:01 PM | Permalink


Obstructionists cause high legal costs with frivolous appeals. Then, they argue against the death penalty because it is too expensive.

Death penalty sentences should be reviewed by experienced investigators. If no substantive error or prosecutorial misconduct is found, it should be carried out on the spot. The investigators may be employees of the judicial system to avoid conflicts and separation of powers problems. The rules of evidence in capital cases should be changed so that all witness testimony must be verified by physical evidence or must be excluded. The small number of falsely executed people should be able to sue the judicial system in ordinary torts for an intentional wrongful death. Judges should carry liability insurance. Judges making mistakes would be driven out by expensive premiums. Constitutional amendment in ever jurisdiction should be enacted to permit litigation against judges for deviations from professional standards of due care.

It is now legal malpractice for a defense lawyer in a capital case to fail to make an intentional reversible error, so that his client's sentence can be reversed later. Any defendant sentenced to death should sue his attorney for lawyer malpractice, and the estate should sue the defense lawyer for the wrongful death.

Posted by: David Behar | Nov 27, 2016 11:08:38 PM

"Obstructionists cause high legal costs with frivolous appeals. Then, they argue against the death penalty because it is too expensive."

State actors cause high legal costs in various ways, the people of the state often negligent at least in letting it go by re-electing them etc., and blame people for carrying out due diligence including appeals with only a small chance of winning. If lawyers had to not try things because there was a very good chance of losing, it would save a lot of time. And, uproot centuries of law.

The rest of the stuff is interesting. Don't buy it all, but appreciate it.

Posted by: Joe | Nov 28, 2016 12:57:58 PM

To put it separately, the "too expensive" argument made by Prof. Berman -- who is on record supporting the death penalty in limited cases -- is not up there for me personally. But, if the case is debatable, at least, along the margins, something like that can help.

OTOH, if you think justice warrants execution, you are okay with high costs. Plus, some of the costs probably will be said to be misguided efforts for the defendants.

Posted by: Joe | Nov 28, 2016 1:00:15 PM

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