News and Developments: Costs

Two California legislators from opposing political parties and with different points of view on the death penalty have proposed cutting funding for a new $395 million death row at San Quentin Prison.  “The Death Row expansion is a bottomless money pit,” said Republican state Senator Jeff Denham.  Democratic Assemblyman Jared Huffman added, “We should use this opportunity, with the state running out of cash, to step back and rethink this project.”  Calling the renovation project, “Cadillac Death Row,” Huffman pointed to a state auditor’s report that found the cost of the project had already increased by $40 million over earlier estimates and the 20-year operating cost would be $1.2 billion.  Huffman predicted that the new facility would run out of space by 2014, adding, “This project is hugely expensive and has a shelf life of three years.” 

Utah’s Supreme Court recently expressed concern that the lack of qualified defense attorneys for indigent death row inmates could unravel capital sentences. In a unanimous decision in the case of death row inmate Michael Archuleta, Associate Chief Justice Michael Wilkins (pictured) said the court might be forced to reverse capital sentences because the low pay and the complexity of such cases have shrunk the pool of Utah attorneys who will accept them. "It falls to us, as the court of last resort in this state, to assure that no person is deprived of life, liberty, or property, without the due - and competent - process of law," Wilkins wrote. "Without a sufficient defense, a sentence of death cannot be constitutionally imposed." He wrote that the justices may soon be forced to reverse a death sentence and impose life without parole on such grounds if the legislature fails to provide adequate resources.

An excerpt from the opinion follows:

In recent years we have become especially concerned with the diminishing pool of competent counsel in capital cases. There is no acceptable justification for this trend. Competent defense and appellate counsel are guaranteed by our constitution. We cannot allow a defendant’s life to be taken by the government without an adequate review of the conviction. Our judicial oath to support, protect, and defend the Constitution must, of necessity, include the requirement that we take measures within our authority and responsibility to see that the mandates of the Constitution are observed.

In June 2008, the Office of Defender Services of the Administrative Office of the U.S. Courts published a report analyzing the cost, quality and availability of defense representation in federal death penalty cases. The report determined that federal capital trials in which the death penalty was sought were substantially more expensive than non-death penalty federal trials; however, a death sentence was handed down in only one-quarter of the cases. In addition, defense expenditures in a federal death penalty case correlated strongly with whether a death sentence was ultimately handed down.

Congress increased the number of offences for which the death penalty could be sought from one to 50 in 1994, resulting in an immediate increase in the number of death-eligible federal defendants. While death-eligible defendants numbered 26 in 1993, that number increased to 63 in 1994 and to approximately 150 every year after that. Of the cases that went to trial seeking the death penalty, only 25% resulted in a death sentence (61 out of 233). Only 14% of the cases in which the Attorney General authorized seeking the death penalty actually resulted in a death sentence. Cases in which the Attorney General authorizes pursuit of the death penalty are significantly more expensive than non-death cases. The average cost of a trial in a federal death case is $620,932, about 8 times that of a federal murder case in which the death penalty is not sought.