Debating the cost of the death penalty

By Abigail Goldman

Wednesday, March 4, 2009 | 2 a.m.

Forget how you feel about the death penalty — in this economy, in this legislative session, state executions are a question of cost, not conscience.

Legislators in a handful of states are attempting to halt or repeal the death penalty on the grounds that capital punishment is just too expensive. In Nevada, Assembly Bill 190 calls for a two-year moratorium on executions, during which time a study would be conducted on the fiscal effect of the death penalty. In late February, The New York Times described this purse strings-instead-of-heartstrings approach as an “unconventional argument that is becoming increasingly popular in cash-strapped states,” but failed to mention Nevada’s bill or the politicians behind it.

Objecting to the death penalty because of its price tag is actually nothing new in Nevada; it’s the economy that has changed, perhaps enough to advance an old argument.

Nevada legislators have been concerned about the cost of executions since at least 2002, when their subcommittee to study the death penalty first recommended pursuing a grant to finance a study of the costs of capital cases. That recommendation was not followed, however.

In the past few sessions there haven’t been any substantive challenges to the death penalty, said Assemblywoman Sheila Leslie, D-Reno, who was a member of the death penalty subcommittee seven years ago and is one of the moratorium bill’s sponsors this session.

“We are in a fiscal crisis, and you would think that the cost issue would have more resonance. I hope it does,” she said.

The moratorium bill was introduced by Assemblyman Bernie Anderson, D-Sparks. He said his goal is to “have a rational discussion rather than an emotional discussion.”

The closest anybody in Nevada has come to understanding the per-case cost of the death penalty has been by looking at research in other states. In 2002, when the death penalty subcommittee was exploring the issue, it relied on a North Carolina report that found capital cases cost about $2.2 million more than cases in which the maximum punishment was life without parole. Since then, several new studies have emerged showing death penalty cases can cost millions more than life without parole.

Why it costs more, however, depends on whom you ask. Anti-death-penalty advocates say capital cases cost more because the stakes are higher. These cases take longer — and not by months, but years. The jury selection is more complicated, and the jury is more likely to be sequestered. More attorneys are often assigned to capital cases, and more experts are often hired to testify. In other words, the costs arise mainly during trial.

But ask people who advocate for the death penalty, such as Clark County District Attorney David Roger, and they’ll tell you capital cases really start costing taxpayers money after the death sentence is handed down. Death penalty opponents “bleed the system” with seemingly endless appeals, Roger said. If you want to save money, he added, impose sanctions on attorneys who file repetitious appeals.

Not everybody agrees with that opinion, not by a long shot. But it is a fact that appeals in death penalty cases do drag on for years. Death penalty abolitionists have long cited studies that indicate most death row defendants end up with life sentences anyway — the appeals process goes on so long that inmates die of natural causes.

Nevada juries have handed down more than 130 death sentences since 1977, and only a small fraction of those inmates have actually been executed: 12. And of those dozen executed inmates, 11 were what Nancy Hart, president of the Nevada Coalition against the Death Penalty, calls “volunteers” — people who refused to seek available appeals, people who gave up fighting for their lives.

Death penalty opponents say the millions of dollars and hours spent pursuing executions that seldom come to pass are more evidence of fiscal waste.

The Clark County district attorney’s office evaluated 36 cases with death penalty potential in 2008 and decided to seek capital punishment in 15 of them. The year before that the district attorney’s office took on 16 capital cases. Christopher Lalli, assistant district attorney in charge of the criminal division, did not know how many of these cases resulted in death convictions and said many are still being litigated.

The bill has not yet been scheduled for discussion on the legislative calendar. While it would, if passed, establish a moratorium on any pending executions, it would not prevent prosecutors from seeking the death penalty in new cases. In other words, the moratorium will not save money spent on new capital prosecutions. The bill is merely the first step in a money-saving process — determining how much money there is to save.

Rebecca Gasca, Public Advocate for the ACLU of Nevada, says her organization would like to take the moratorium a step further, however, and ban prosecutors from even seeking capital punishment. Otherwise, she said, taxpayer money will continue to be wasted.

For death penalty opponents like Hart, the cost is actually secondary to moral and ethical concerns over capital punishment. Still, if it’s going to take talking about money, that’s what they’ll do.

“Anybody that spends any time studying the death penalty will come to believe that it has flaws,” she said. “If cost is the issue that gets them hooked in, that is a great place for them to start. The more they look, the more they’ll find the flaws.”

There is some suggestion that the cost argument might sway people who otherwise favor the death penalty. The Feb. 25 Times article noted that New Mexico Gov. Bill Richardson, a longtime supporter of capital punishment, was considering signing a bill repealing the death penalty, citing cost among his reasons and telling the paper that the economy of execution was a “valid reason in this era of austerity and tight budgets.”

But the economic argument cuts another way in Nevada, in a way that may prevent moving beyond the first step: In this era of forced belt-tightening, with a limited number of studies that can be funded every session, the state may not be willing to spend money to study money spent.