The Cost of the Death Penalty

-- By PeterWade - 25 Feb 2010

The Death Penalty in America

In much of the world, including most of those “western” nations we in America like to consider our peers, capital punishment is considered barbaric. While Americans decry the status of human rights in so many other countries, and send young idealists to Africa, or Cambodia, or South America, international organizations in other countries send their young lawyers here, to America, to work to oppose our human rights problem.

Of course, there are those in this country that also oppose this practice, but why is there not a more publicized debate, a la gay marriage or abortion? Why does it receive such relatively little scrutiny?

You really think the death penalty in America gets little scrutiny?

Public Support

The simple answer is public opinion. As of 2009, 65% of Americans support the death penalty, and state legislators know this. The Supreme Court also knows this. In Gregg v Georgia, the case that reinstated the death penalty in 1976, the Court noted that in determining the constitutionality of the practice, they must look to the “contemporary public attitudes” that reflect “evolving standards of human decency.”

You are missing the headline on your public opinion data. The 65% support level is a low compared to the support levels measured in public opinion polls in the mid-1980s, when I was clerking, or for a decade after. Take a look at historical collections of polling data to see what has happened to public opinion since the exoneration campaigns began.

When the UK banned capital punishment for murder in 1969, it did so against public opinion. In 1994, when Parliament was to vote on reinstating it, some reports had public support as high as 75%. They voted it down.

The same is not going to happen here. In order to change the law, advocates must change public opinion.

Some Traditional Arguments

This is not a novel concept, of course, nor is it the point. The point has always been HOW? There are many arguments made against the death penalty, and yet since the middle of the 1970s support has never fallen below 60%

Innocence

The fact that we are likely killing innocent people seems to have little impact. Since DNA first hit the evidentiary scene in the late 1980's, it has been used to exonerate 250 convicted felons (according to The Innocence Project), 17 of whom were slated for execution (139 total death row inmates have been exonerated since 1971). Quite recently Cameron Todd Willingham was convicted and executed in Texas on what was later found to be some very bad evidence. Almost 60% of Americans agree that in the last 5 years we have executed at least one innocent person. And yet more than half of those people still support the death penalty.

Fairness

Advocates also point to the fact that ineffective sentencing guidelines lead to arbitrary and discriminatory sentencing, where whether a defendant is put to death can hinge on which state the murder takes place in or even the race of the victim. As of 2007, almost 80% of the victims in death penalty cases had been white, though overall, murder victims are white only 50% of the time. The Supreme Court had pointed to the Model Penal Code to show states one way to fix the problems of arbitrariness that had led the court to invalidate their death penalty statutes. Last year, the capital punishment section was eliminated from the MPC; the ALI cited the “intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.” Yet almost 60% of Americans think the death penalty is applied fairly.

Cruel and Unusual

Constitutional challenges cite the Eighth Amendment and declare the practice “cruel and unusual!” And yet, as of last year nearly the same percentage of Americans that support the death penalty also specifically find it to be “morally acceptable.”

An Alternative

Maximum of Life Without Parole

Where support falters, and there appears a small chink in the armor, is when Americans are given an alternative: life without parole. When given this choice, only 48% favor the death penalty over it.

It seems that while many Americans see “an eye for an eye” as morally acceptable, not all of them think it absolutely necessary.

Economic Impact

How can we (those of us who want to) use this? Since many of the arguments cited above focus on capital punishment in principled terms, perhaps it might be a better idea to focus on this alternative and its more practical implications.

Most notably, in this economy, the cost to the American people.

Last year Philip Cook, of Duke University, published a study conducted to estimate the costs of the death penalty in North Carolina. He estimated that if the state had abolished the death penalty, they would have saved over $21 million over the previous two years. Likewise, a 2008 study by The Urban Institute found that Maryland taxpayers had paid $186 million dollars more since 1978 because of capital punishment. That same year, the state senate in California commissioned a study of its criminal justice system which estimated the additional annual cost of its death penalty program at $137.7 million, and that a system with a maximum sentence of life without parole would drop this number to $11.5 million. Similar data has come out of other states as well.

Yes, but these are tiny numbers for state budgets in the billions, and comparable costs can be estimated for things the public would consider frivolous, and be delighted to cut out long before capital punishment would go for budgetary reasons.

Practical Appeal

Capital defense attorneys are usually state appointed and supported. Juror selection is more time consuming and costly. The trial is followed by a series of automatically triggered appeals, which can stretch on for years. Capital punishment systems are an incredible economic drain on many states (see California) that cannot exactly afford to waste money.

Prosecutors are elected officials, and if the voters think they're wasting too much money charging capitally when they should seek lesser penalties, they can express that view. I doubt there's a prosecutor in the country who worries that he'll be thrown out of office for too much spending on trying to execute the "worst" murderers.

Popular support for the death penalty makes opposing it an uphill battle, and principled negative attacks on capital punishment may be more polarizing than effective. It might be more persuasive to shift focus from abstract arguments based on morality and human rights, to increased empirical study and a positive discussion of the practical economic impact of alternatives. Though not the newest argument, in today's struggling economy, it may have become the strongest.

"May have become" are weasel words for "I haven't the slightest evidence that this is true, but I'll say it anyway."

Conclusion

Taking this path, maybe we can avoid trying to topple the beliefs of the “morally acceptable” crowd, and instead appeal to that section of America that might be persuaded to consider alternatives. If what the current system might be doing to innocent defendants doesn't give people pause, maybe what it is doing to them will.

A conclusion about "maybe" shows that the preceding argument doesn't have much purchase even with the author. Because you haven't gone inside the survey data, you don't have any reason to think cost is a substantial motivating factor: it has little effect on peoples' desire for long incarceration, even when the much larger costs of incarceration policy begin to take substantial bites out of other public services. If there is something in the survey data that shows this is a reasonable strategy, you should be able to find it. If there isn't, you should at least have answers for some of the obvious objections.