« "Pandemics, Risks and Remedies" | Main | Do others sense that SCOTUS has become particularly (and problematically?) quiet on sentencing matters? »

June 14, 2020

"Should death-penalty juries learn about death penalty costs?"

The title of this post is the headline of this new AP article.  Here are excerpts: 

Debate over Utah’s death penalty is intensifying in 2nd District Court as attorneys prepare for the trial of an Ogden couple accused of starving and fatally abusing their 3-year-old daughter.  Prosecutors said earlier they will seek the death penalty against Miller Costello, 28, and Brenda Emile, 25, if they are convicted of aggravated murder in the July 6, 2017, death of Angelina Costello.

Over the past year, defense attorneys have filed several motions challenging the death penalty, including those asking that jurors be questioned about blood atonement and the comparative costs of execution versus life in prison.  They also have asked Judge Michael DiReda to strike the death penalty as “cruel and unusual punishment by practice and the consensus of the Utah citizenry” and because they contend the sentencing portion of the law unfairly shifts the burden of proof to defendants....

In a May 14 filing, county attorneys ... urged DiReda to reject the defense’s request to allow defense lawyers to quiz prospective jurors about death penalty costs.  “Questions of deterrence or cost in carrying out a capital sentence are for the Legislature, not for the jury considering a particular case,” the prosecution said.

Admitting evidence on death penalty costs “is akin to admitting evidence of the process of the death penalty, which has already been rejected by the Utah Supreme Court,” prosecutors said.  They added, “inviting the jury to determine whether the cost of the death penalty is worth it for a person that may be convicted of starving and physically abusing a three-year-old girl to death is very dangerous ground for the defendant.”

The defense had argued in its Jan. 21 filing that there’s ample evidence that imposing the death penalty far exceeds the cost of imposing a life sentence.  The Utah Commission on Criminal and Juvenile Justice published a study in 2018 determining that the average cost of an execution was at least $237,900 more than a decision of life in prison.  A more limited 2012 Utah study said the difference was as much as $1.6 million per case.

The defense noted that in the 2009-15 case of Weber County double-murder convict Jeremy Valdes, two dozen or more potential jurors said in their questionnaire that they would choose the death penalty over life in prison because they thought it would cost less to execute the defendant.

“Of course, that is not true,” the defense motion said.  “It is incumbent upon the court to ensure that the citizens who comprise the jury pool are well-informed. And those who would otherwise make good jurors should be educated as to the cost imposing the death penalty so they can be properly rehabilitated.”

I tend to be very supportive of sentencing decision-makers, whether judge or jurors, having as much relevant and accurate information as possible when making sentencing decisions. Especially if there is reason to fear that misinformation about costs may shape the work of capital sentencing jurors, I would strongly urge allowing then to have accurate information on this topic.

June 14, 2020 at 10:49 AM | Permalink


Fascinating, and thanks. I didn't know about this. Empirical studies in this area were a minor obsession of mine ten years ago when I wrote a chapter about it with a friend, the lately deceased Jonathan Gradess.

Interestingly, I also recall (and I think we put this in the chapter) that the actual evidence that cost info changes opinions on the death penalty was equivocal. Some polling evidence showed support dipping, but other studies basically show favoring death penalty was not that vulnerable to...well...anything in terms of information or evidence. (I remember Justice Marshall was the one who said if Americans knew the facts about the DP they wouldn't support it any longer, but it seems he might have been wrong.) More impactful, I recall, on DP favorability was the technique of 'raising questions' (simply asking 'do you think the DP costs more?') which, by producing uncertainty and focusing attention on unconsidered issues, seemed to reduce support.

None of which is to disagree with your argument in favor of sharing this info. Just wanted to share these fond reminiscences!

Posted by: Andy Davies | Jun 15, 2020 5:07:51 PM

In my opinion: Death Penalty should be reserved for mass murderers, those with NO conscience and no regrets for their crimes.

Posted by: LC in Texas | Jun 15, 2020 8:11:25 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB