Death Penalty Is Tough On Budgets

During the last three decades, whenever tough-on-crime conservatives would read stories about an execution delayed for years by legal challenges, we would hear their familiar complaints about frivolous appeals and abuses of the writ and how litigious inmates waste everybody's time when they should just get on with dying. Sometimes the complaints motivated tough-on-fairness laws that limited an inmate's opportunity to seek review of a conviction or sentence.

In tough economic times, voters are learning a fiscal truth: tough-on-crime policies are tough on budgets. These days, when a newspaper reports that California may spend $5 million more to keep inmate Michael Ray Burgener on death row than it would have spent if he'd been sentenced to life without parole, the tired rhetoric of tough-on-crimers is less relevant to voters than the budgetary impact of being smart-on-crime. Even in states that are less dysfunctional than California, a death sentence costs up to $2 million more than a life sentence. That's one reason why three states have repealed the death penalty in the last five years, and why calls to replace it with a less costly alternative are increasingly heard in other states.

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As for the tough-on-crimers who think Burgener has gamed the system by staying alive for the last 28 years, Burgener's victories illustrate that his challenges are legitimate.

Burgener's first death sentence was overturned because his attorney, at Burgener's request, failed to argue or present any evidence that Burgener should not be put to death. ... In 1988 -- seven years after the first verdict -- another jury gave Burgener the death penalty, but the trial judge reduced it to life without possibility of parole. An appeals court overturned that decision, saying the judge had considered impermissible factors and should stick to the requirements of the Penal Code.

In 1991, another judge, the late Ronald R. Heumann, read the entire penalty retrial transcripts and denied Burgener's request for a life sentence. The state high court again overturned the death sentence, this time on the grounds that Heumann had failed to exercise independent judgment and relied only on the jury's findings.

The case returned to Heumann, who once again imposed the death penalty. It was overturned because he had granted Burgener's request to represent himself without warning him of the danger of doing so.

Burgener can't be blamed for complaining to an appellate court -- correctly -- that the sentencing judge failed to give a constitutionally mandated warning before ordering his death. A warning about the dangers of self-representation and a colloquy sufficient to make a record that Burgener understood and accepted the risk might have taken 15 minutes. If California's judges always followed the law in death penalty cases with meticulous care, the system wouldn't seem so dysfunctional. If the tough-on-crime crowd wanted to do some good, it would get tough-on-careless-judges.

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    It would be ironc if (none / 0) (#2)
    by Mikeb302000 on Mon May 18, 2009 at 08:41:17 AM EST
    the death penalty were abolished for the wrong reasons.  I've often referred to the cost and the disproportionate number of minorities on death row and the possibility of executing an innocent as the wrong reasons, the right reason being simple morality.  But, in correspondence with Diann Rust-Tierney, Executive Director of the NCADP, which I posted about here, she very eloquently explained that reaching people who "believe the death penalty is not morally abhorrent" is the trick.

    Ever since hearing her explanation I've felt better about the other motives for abolition.

    I don't really understand (none / 0) (#3)
    by Steve M on Mon May 18, 2009 at 09:18:04 AM EST
    why the death penalty is so much more expensive than life imprisonment.  I've always kinda wondered if some kind of game has to be played with the numbers to reach that conclusion, because it certainly seems counterintuitive.  Is there a simple explanation?

    the numbers are misleading (none / 0) (#4)
    by Bemused on Mon May 18, 2009 at 10:08:28 AM EST
      because the costs are calculated as including the amortized cost of the various involved  agencies' time and resources.

      For example if "Court A" devotes 10% of its time to hearing death penalty cases then the typical study will show that death penalty case costs include 10% of that court's total budget.

      That's misleading because the largest proportion of the operating costs would exist with or without death penalty cases.

     If the cost argument, misleading as it may be, helps eliminate the death penalty that's better than maintaining capital punishment in my book, but I do worry that if we push to make the focus the "cost," we invite other cost saving measures in the judicial and penal systrms that will be bad for defendants generally.

      The same legislator swayed by the death penalty costs too much argument might be open to the appointing lawyers for appeals costs too much or other similar measures.



    Gov. Schwartzenegger says (none / 0) (#5)
    by oculus on Mon May 18, 2009 at 11:27:46 AM EST
    he'll sell San Quentin if hia budget stuff doesn't pass.  No place to house death row then.

    The only problem... (none / 0) (#6)
    by lentinel on Mon May 18, 2009 at 12:05:00 PM EST
    might be that the "cost" argument could be demolished by finding ways of cutting the costs of executing people.
    It seemed to me that Texas found a way to ship people into the chamber rather quickly. It was like an assembly line.

    Were that to happen, we would have to rely on the moral issue -which is at the heart of it.

    We are a country that accepts the notion of "collateral damage". We'll kill a number of innocents to get the bad guys. And it causes no outrage. We're doing it as we speak.

    So the moral issue isn't going to gain much traction.
    I'm not against the "cost" approach - but from a moral point of view it is a flawed approach and leaves the door open for our government to find ways of offing anybody it finds undesirable if the price is right.

    as it turns out, (none / 0) (#7)
    by cpinva on Mon May 18, 2009 at 09:32:09 PM EST
    hard-line, lawnorder, lockemupthrowawaythekey policies are very expensive, not just the death penalty. it costs more to keep somone in jail for a year, then to send them to harvard. you get no return on investment for your "jail tuition".

    that said, the prison industry is a huge jobs machine; those people will fight tooth and nail to keep laws criminalizing acts from being overturned. their livings depend on it.

    "industry" (none / 0) (#8)
    by diogenes on Tue May 19, 2009 at 07:09:25 PM EST
    Most death row inmates didn't commit nonviolent drug offenses and will be locked up in a maximum security prison for life or until they reach senility (and can be paroled to nursing homes, I suppose, saving the prisons the cost of medical care by putting it on Medicare).