Summary of the Kansas Death Penalty Cost Report by DPIC

Kansas Death Penalty Cost Report
Summary by Death Penalty Information Center

The State of Kansas recently issued a report estimating the costs of the death penalty in that state: “Performance Audit Report: Costs Incurred for Death Penalty Cases: A K-GOAL Audit of the Department of Corrections,” (December 2003).  

Conclusions

• The estimated cost of a death penalty case was 70% more than the cost of a comparable non-death penalty case.  Death penalty case costs were counted through to execution (median cost $1.26 million).  Non-death penalty case costs were counted through to the end of incarceration (median cost $740,000).

• Items:
• The investigation costs for death-sentence cases were about 3 times greater than for non-death cases.  
• The trial costs for death cases were about 16 times greater than for non-death cases ($508,000 per death case; $32,000 per non-death case).  
• The appeal costs for death cases were about 21 times greater.  
• The costs of carrying out a death sentence (including death row incarceration) were about half the costs of carrying out a non-death sentence in a comparable case.
• Trials involving a death sentence averaged 34 days, including jury selection; non-death trials averaged about 9 days.

• For death sentence cases, the pre-trial and trial level costs were the most expensive parts: 49% of the total costs.  The costs of appeals were 29% of the total, and incarceration and execution costs accounted for the remaining 22% of the total.

Limitations

The report stressed that “actual cost figures for death penalty and non-death penalty cases in Kansas don’t exist,” and that there were numerous limitations on the cost estimates made, including:

• The number of cases was small, (7 people have received a death sentence since the punishment was reinstated in 1994), and no cases have completed the appeals process or resulted in executions.
• For many of the participants in the legal process, no case-specific time records were kept.  The Kansas Supreme Court has heard only 2 death cases, and the Court did not provide estimates of the time spent by the justices.

Comments

The Kansas study is a welcome and serious contribution to the relatively sparse literature on the costs of the death penalty.  All death penalty cost studies involve numerous estimates and assumptions, and the Kansas study report was thorough in revealing the limitations of its study.  Some of the assumptions made may have resulted in significantly underestimating the total death penalty costs:

• Kansas assumed that all individuals currently awaiting execution will be executed.  However, since the death penalty was reinstated in the U.S., only about 10% of those sentenced to death have been executed.  A recent study at Columbia University Law School found that about 68% of death penalty cases were overturned on appeal.  When those cases were subject to a re-trial, an estimated 82% resulted in a sentence less than death.  It is likely that Kansas’ capital cases will experience a similar diminution.  Since it is only after an execution that a death penalty case becomes less expensive than incarceration cases, the assumption that all death sentences will result in execution may produce less overall costs than is warranted.  In all likelihood, some (if not most) Kansas death cases will be overturned after lengthy appeals, the defendants will be re-sentenced to life, and then the costs of incarceration for many more years will be added on to the costs of pursuing the original death penalty.
  

• In concluding that death sentence cases cost 70% more than non-death cases, the report does not appear to add in the costs of cases where the death penalty was sought, but not achieved at trial.  The report states that there were an equal number of these case and estimates that the median cost of such cases was almost 30% more than the median in which the death penalty was never sought.  The added costs accrue because seeking the death penalty at trial is more expensive than not seeking it at trial, regardless of the outcome. These extra costs could be added to the 70% costs above to give a truer comparison between death and non-death cases.
  

• The report bases its most important conclusion on the median (middle) cost of the seven death cases considered.  This can be deceptive when the number of cases is very small.  Another approach would have been to take the mean (average) costs of the cases.  Using this measure, the average death sentence case would be about 93% more expensive than the average non-death penalty case of similar severity, even without making the other adjustments suggested above.

The Kansas study focuses on the costs of individual cases.  With more time and resources, the analysis could be taken further to compare the costs to the state of a death penalty system with the costs of a non-death penalty system.  Such an analysis might incorporate the costs mentioned above.  These extra costs to the taxpayer could be calculated in total and per execution, as they were in the North Carolina study conducted at Duke University in 1993.  Both the individual case approach taken in Kansas, and the systemic approach taken in North Carolina depend on likelihood of future executions, which are always speculative.

The full report is available at http://www.kslegislature.org/postaudit/audits_perform/04pa03a.pdf.