Death penalty costs California $184 million a year, study says

A senior judge and law professor examine rising costs of the program. Without major reforms, they conclude, capital punishment will continue to exist mostly in theory while exacting an untenable cost.

By Carol J. Williams

Los Angeles Times

June 20, 2011

http://www.latimes.com/news/local/la-me-adv-death-penalty-costs-20110620,0,3505671.story

Taxpayers have spent more than $4 billion on capital punishment in California since it was reinstated in 1978, or about $308 million for each of the 13 executions carried out since then, according to a comprehensive analysis of the death penalty's costs.

The examination of state, federal and local expenditures for capital cases, conducted over three years by a senior federal judge and a law professor, estimated that the additional costs of capital trials, enhanced security on death row and legal representation for the condemned adds $184 million to the budget each year.

The study's authors, U.S. 9th Circuit Judge Arthur L. Alarcon and Loyola Law School professor Paula M. Mitchell, also forecast that the tab for maintaining the death penalty will climb to $9 billion by 2030, when San Quentin's death row will have swollen to well over 1,000.

In their research for "Executing the Will of the Voters: A Roadmap to Mend or End the California Legislature's Multi-Billion-Dollar Death Penalty Debacle," Alarcon and Mitchell obtained California Department of Corrections and Rehabilitation records that were unavailable to others who have sought to calculate a cost-benefit analysis of capital punishment.

Their report traces the legislative and initiative history of the death penalty in California, identifying costs imposed by the expansion of the types of crimes that can lead to a death sentence and the exhaustive appeals guaranteed condemned prisoners.

The authors outline three options for voters to end the current reality of spiraling costs and infrequent executions: fully preserve capital punishment with about $85 million more in funding for courts and lawyers each year; reduce the number of death penalty-eligible crimes for an annual savings of $55 million; or abolish capital punishment and save taxpayers about $1 billion every five or six years.

Alarcon, who prosecuted capital cases as a Los Angeles County deputy district attorney in the 1950s and served as clemency secretary to Gov. Pat Brown, said in an interview that he believes the majority of California voters will want to retain some option for punishing the worst criminals with death. He isn't opposed to capital punishment, while Mitchell, his longtime law clerk, said she favors abolition. Both said they approached the analysis from an impartial academic perspective, aiming solely to educate voters about what they are spending on death row.

Alarcon four years ago issued an urgent appeal for overhaul of capital punishment in the state, noting that the average lag between conviction and execution was more than 17 years, twice the national figure. Now it is more than 25 years, with no executions since 2006 and none likely in the near future because of legal challenges to the state's lethal injection procedures.

The long wait for execution "reflects a wholesale failure to fund the efficient, effective capital punishment system that California voters were told they were choosing" in the battery of voter initiatives over the last three decades that have expanded the penalty to 39 special circumstances in murder, the report says.

Unless profound reforms are made by lawmakers who have failed to adopt previous recommendations for rescuing the system, Alarcon and Mitchell say, capital punishment will continue to exist mostly in theory while exacting an untenable cost.

Among their findings to be published next weekin the Loyola of Los Angeles Law Review:

The state's 714 death row prisoners cost $184 million more per year than those sentenced to life in prison without the possibility of parole.

A death penalty prosecution costs up to 20 times as much as a life-without-parole case.

The least expensive death penalty trial costs $1.1 million more than the most expensive life-without-parole case.

Jury selection in a capital case runs three to four weeks longer and costs $200,000 more than in life-without-parole cases.

The state pays up to $300,000 for attorneys to represent each capital inmate on appeal.

The heightened security practices mandated for death row inmates added $100,663 to the cost of incarcerating each capital prisoner last year, for a total of $72 million.

The study's findings replicated many of those made by the bipartisan California Commission on the Fair Administration of Justice in 2008, and a year later, when the American Civil Liberties Union of Northern California researched the death penalty's fiscal effects ahead of public hearings on how to revise lethal injection procedures after a federal judge ruled the state's practices unconstitutional.

As with the recommendations in Alarcon's 2007 report, none of the remedies outlined by the commission chaired by former Atty. Gen. John Van de Kamp has been adopted by lawmakers or put to the public for a vote.

All of the examinations have pointed to a shortage of death penalty-qualified attorneys in the state as a prime cause of the delays in handling appeals from death row prisoners. At the time of the commission's report, it took an average of 10 years for a condemned inmate to get his death sentence reviewed by the California Supreme Court, as required by law.

Michael Millman, executive director of the California Appellate Project, says more than 300 inmates on death row are waiting to have attorneys assigned to work on their state appeals and federal habeas corpus petitions. He says there are fewer than 100 attorneys in the state qualified to handle capital cases because the work is dispiriting and demanding and the compensation inadequate.

Death penalty advocates argue that the lack of attorneys qualified to represent death row inmates in a state with a bar membership over 230,000 is deliberate.

"Choking off the appeals is part of the strategy" of those opposed to capital punishment, Kent Scheidegger, legal director for the Criminal Justice Legal Foundation, says of what he calls unnecessarily elaborate state court requirements for taking on death penalty cases.

In their report, Alarcon and Mitchell raise the prospect of costly new legal challenges to the state's handling of capital inmates because of the dozens who have died while waiting for lawyers to be assigned for their appeals. Of the 92 death row inmates who have died since 1978, only 13 were executed in California and one was executed in Missouri, while 54 died of natural causes, 18 by suicide and six by inmate violence or undetermined causes.

Federal judges find fault with about 70% of the California death row prisoners' convictions and send them back to the trial courts for further proceedings, the report noted. That could make the state vulnerable to charges of denying inmates due process, the authors warned.

The report also says the corrections department and the Legislative Analyst's Office failed to honestly assess and disclose to the public what 30 years of tough-on-crime legislation and ballot measures actually cost.

"We hope that California voters, informed of what the death penalty actually costs them, will cast their informed votes in favor of a system that makes sense," the report concludes.