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A favorite tactic of the anti-death penalty crowd is to reach out to fiscal conservatives and other fiscally-minded people and regurgitate outrageous dollar amounts as evidence that the death penalty “costs” millions of dollars.
The problem — like most claims by the anti-death penalty crowd — is they know most readers won’t have the time or inclination to think through and investigate their claims, and will fill in the gaps and innuendos in a way that leads them to the politically-correct conclusion. Let’s take a look at the “cost” of the death penalty, the true cost.
As a recent example, look at how anti-death penalty advocates report of the so-called “10 million dollar prosecution” of three people in King County, in Washington State. Characteristically of modern journalism, this number is often repeated unquestioned by the AP and the like. The local media in the Seattle Times gets the story a little better, crashing the number down to $4.3 million.
A closer look at the Times article, however, reveals that — excluding fixed costs such as the courthouse, the prison, etc., that have little to do with the case being capital) — these numbers are overwhelmingly driven by the defense, not the prosecution. And while I have not independently checked the costs of the prosecution, the $200,000 and $470,000 numbers the article cites for the State are ridiculous and suspect.
Having been a prosecutor for 15 years in one of the largest jurisdictions in the United States who has prosecuted approximately 20 death penalty cases — with four of them having gone to trial recently — I haven’t spent $200,000 on them combined (again, excluding my $40/hour salary with benefits). I doubt the office that I work for has spent $470,000 on all of their death penalty prosecutions in five years, excluding fixed costs.
The largest amount I have spent on a single case was about $20,000 to ensure a man who tortured and killed someone got the only just punishment. That’s $20,000 for a case that took about 3 years to bring to trial through the death verdict of the jury. That $20,000 was spent primarily on a psychologist who was, essentially, on call whenever we had a question, for over three years, doing research for us to rebut the claims of three defense experts.
Take a look at that $470,000 number from just a common sense stand point: the state brings a prosecution, any prosecution, using a number of resources that already exist. The crimes are investigated by the police. The police and their salaries are already there, and are decidedly a fixed cost. Most people like having cops. Additional minor investigation, usually used to rebut defense claims, can be shared with the prosecutorial agency’s own investigators who again are a fixed cost. The prosecution office’s investigators are there already, and factored into our budgets regardless of what they are investigating or doing. As such the additional cost of our investigating a death penalty crime is negligible. Minor fees for obtaining copies or transcripts might be incurred, which I would argue are already the cost of any prosecution, but that amount is marginal, usually less than $50-100. Civilians testify for free and are lucky to get their parking reimbursed.
So that leaves expert witnesses. For the prosecutor, there is a massive difference between the costs of proving the case, and rebutting the defense. Proving the case — which usually relies on State experts — has few marginal costs, again the additional cost is going to be zero or very close. DNA, fingerprints, handwriting experts, ballistics, all of these scientific experts come from state crime labs most of the time. Some forensics can be farmed out, but usually this is to federal crime labs, not private ones; even the private ones are less than $1,000 most often. Murder cases are no different: medical examiners/coroners/pathologists are all State/County employees. If you accept the need for these services — which have nothing to do with the nature of the punishment — the marginal cost of using them to gain a death penalty is typically zero, or close enough to count.
However, rebutting defense experts in the penalty phase of the trial — i.e., after guilt and death eligibility factors have been proven — can be expensive; I would imagine this is 99% of any prosecutor’s budget. But even here, the vast majority of State experts are going to be drawn from State employees or frequently used experts where the State can/will negotiate a lower fee. Common defense experts in a capital case are nuero-psychologists who will talk about the “risk factors” the defendant had growing up (i.e., the “I had a bad childhood” mitigation) or some type of organic brain dysfunction (“I whacked my head as a 10 year old”). Most states have mental health professionals/psychologists who determine competency and often charge about $50 an hour, substantially less than the $600-$1,000 an hour charged by the defense industry.
Simply put: the cost of prosecution is largely a fixed cost that could be created for any prosecution. If prosecutors are indeed spending $470,000 on experts they are way over-thinking their case and their constituents should cap their budgets (though I doubt the figures).
So why is it that we see these million dollar numbers? Let’s look at the defense of the murderer, collectively people who have every incentive to make the costs of the death penalty as high as possible.
Unlike the prosecution, the person who defends the murderer may not be paid the same amount if they are defending a drunk driver or a serial killer. There are generally two types of capital defense lawyers: the public defenders, and conflict/contract counsel. The public defenders — and no that is not pejorative, they are usually better trial attorneys than private lawyers — are basically just like prosecutors in that they charged a fixed rate, with adjustments for experience and (possibly) a bonus in capital cases. Contract counsel gets appointed if there are any witnesses on the prosecution that create a conflict because they were once represented by the public defender. This is actually a very common situation and I would guess a substantial number of death penalty defense lawyers fall into this category. Now the numbers get interesting.
Many county boards — who usually include a few abolitionists — want to attract “good” private defense lawyers to represent the worst of the worst. As such, they want those lawyers to focus on their capital cases so they offer ridiculously high contracts. In my jurisdiction, defense attorneys are typically making about $120-$150 an hour on a single death case. This is about three times the salary of the prosecutor, regardless of the quality of the evidence against the defendant (DNA, confession and all on video are paid the same as 1 snitch witness) and has no budget cap. The amount spent is often overseen by the defense community or organizations, which usually include death penalty opponents.
Now, the contract defense attorney can’t possibly compete against all of the cops and crime labs that the state has access to — that’s another post for another day — so he needs a “mitigation specialist,” a second chair and an investigator or two. Think that comes out of his pocket? Not when lawyers set the rules, thank you Mr. and Mrs. Taxpayer. Again, these are assigned regardless of the quality of evidence against the defendant. Typically a second chair is paid less, a paltry $90 an hour, as is the “mitigation specialist” whose job is to gather information in the defendant’s past that make him sympathetic.
Now the defense would not be complete without experts. This is where is it gets really expensive. Peruse the defense witness lists for any death penalty case in any state and you will see a definite pattern: the same psychologists, neuro-psychs, PET scan doctors, sociologists, and former prison wardens testifying over and over again. I always laugh when I get a CV disclosed to me where the psychologist/PhD just so happens to be licensed to practice only in death penalty states, particularly when they don’t actually treat clients. These experts typically charge between $300-$600 an hour — I’ve seen as much $1,200 an hour — five to ten times the rate of state experts, who don’t make a living being a professional anti-death penalty witness. Now you see where the “millions” come from: defense lawyers and anti-death penalty doctors.
Does it seem that a system like that is woefully inefficient, generating artificially high costs and open to corruption? It absolutely is, and this article will blow you away. In a shocking investigation from a decidedly left-wing newspaper that typically opposes the death penalty, the abuse of the system by defense attorneys and anti-death experts is made clear. It’s not that it’s illegal, it’s that the system is designed to be costly. Put lawyers in charge of budgets — and sprinkle in hysterical ideological drive — and you’ve got yourself a million-dollar budget-buster.
Imagine if we put a cap on the salaries defense attorneys could earn on a death case, say a mere $500,000? I know it will be hard to feed a family on such a paltry number, but what if? Or, God-forbid, an independent panel of citizens who apportion the budgets of defense attorneys. Or even crazier, abolish lucrative contracts altogether and have lawyers bid on a case, like we have engineers bid on bridges that thousands of people trust with their lives every day?
The costs of the death penalty easily lays at the feet of the defense community that has every incentive to run up the cost as high as possible. Legislative reforms would be met with resistance from the lawyers and doctors who profit at the expense of taxpayers, but that only underscores the need.