A study on Maryland death penalty costs released last week has serious flaws and paints a misleading picture. There are three major deficiencies apparent on the face of the Urban Institute’s report:
First, the study fails to consider the savings that result when a case is plea-bargained to life in prison, a bargain few murderers would agree to in the absence of the death penalty.
Second, the study intentionally ignores the savings that result from the deterrent effect of the death penalty, asserting without justification that one article criticizing the numerous deterrence studies is “conclusive.”
Third, the study assumes that the long delays and high reversal rates that have characterized Maryland’s death penalty in the past will continue indefinitely, ignoring the potential savings from reform of the review process.
The study was released last Thursday, March 6, by the Urban Institute, based in Washington, D.C. Although the Urban Institute (UI) refers to itself as “nonpartisan,” the release of the study appears to have been timed to coincide with a key committee hearing in the Maryland Senate, allowing its conclusions to be used by opponents of the death penalty without giving supporters time to subject the study to scrutiny.
If the death penalty is going to be examined in purely economic terms, we must consider both the cost of cases that go to a death penalty hearing and the effect on cases that do not. The study included 509 cases that were legally eligible for the death penalty: 425 where the prosecution did not seek the death penalty, 55 where it was sought but not imposed, and 29 where a death sentence was imposed. The cases where the death penalty was not sought had a much lower cost on average for trials and appeals, but 173 of those cases, 40%, were guilty pleas.
In a state which has a death penalty, some murder defendants will plead guilty and accept a life sentence to avoid the possibility of a death sentence. If a state has no death penalty, there is no such incentive, and relatively few defendants will plead guilty if life in prison will be the result. The UI study fails to account for the lower trial and appeal costs of the plea-bargained cases as an offset to the higher cost of those cases that are prosecuted as capital.
Although debate about the deterrent effect of capital punishment continues, a strong preponderance of studies published in peer-reviewed journals in recent years finds the death penalty does have a deterrent effect where it is actually enforced. Abstracts and citations for the literature are collected on CJLF’s website at http://www.cjlf.org/deathpenalty/DPDeterrence.htm. Estimates run from 5 to 18 lives saved per completed execution. Even considering this as an economic issue and considering only direct costs to the justice system, the savings from having fewer homicides would still be substantial. If no homicide occurs, the cost of trial, appeal, and incarceration is zero.
The UI study excluded any consideration of the deterrent effect and the savings resulting from deterrence by citing an article critical of the deterrence studies, an article not published in a peer-reviewed journal, and declaring that one to be “perhaps the most conclusive.” The UI study fails to mention the multiple rebuttals to that article by the authors of the original studies. It also gives no justification whatever for declaring this article “conclusive” in preference to the large body of literature pointing the other direction. The absence of any justification supports the suspicion that UI simply chose the article that supports its preferred result.
Future versus Past
To date, Maryland has not had an effective death penalty. The appeals process has taken too long and resulted in too many reversals. Many of the costs factored into UI’s estimates are not inherent costs of the death penalty but rather costs of its obstruction.
The higher cost of trials in capital cases includes not only the original trial but also retrials after reversals. Obviously there would be fewer retrials if there were fewer reversals.
Maryland has suffered from many erroneous reversals of correctly tried capital cases. In the 1987 case of Booth v. Maryland, the Supreme Court declared Maryland’s pioneering law on victim impact statements to be unconstitutional in capital cases. Four years later, the Supreme Court recognized its own error and overruled Booth in Payne v. Tennessee, but the damage was already done, and cases with victim impact evidence had been wrongly reversed. In the 1988 case of Mills v. Maryland, the Supreme Court changed the rules on instructing juries and threw out an instruction that had been drafted by a committee of the bar and approved by the Court of Appeals. The Court of Appeals then applied that decision retroactively to throw out the sentence in every case where the instruction had been used. The Supreme Court has since held that retroactive application was error, but again the damage had already been done.
The law of capital punishment has stabilized since then, and a recent study by Barry Latzer and James Cauthen, funded by the National Institute of Justice, shows that reversal rates are dropping nationwide. By placing limits on the number of appeals an inmate can file on issues having nothing to do with actual guilt or innocence, issues making up a very large portion of capital litigation, the state could shorten the review process substantially. Congress has already authorized streamlined federal appeals for states that provide competent counsel on the state collateral review, as Maryland already does.
Finally, the largest single cost noted in the study is the cost of incarceration. Maryland has high death row costs because the judgments take so long to carry out. The high cost of incarcerating prisoners on death row would be reduced dramatically if executions were carried out in most cases in five or six years from the time of sentence. Review in this time frame is achievable and has been done in Virginia. If Maryland did the same, the incarceration costs would drop dramatically.
In short, the cost of appeals, the cost of retrials, and the cost of incarceration can all be reduced substantially. The UI study makes no allowance for such savings.
The tone of the study, the factors it chose to ignore, and the timing of its release all point to the conclusion that it was designed to support a predetermined agenda. Whether the death penalty, done right, would cost more than abolishing it remains undetermined. Certainly inflated estimates of relative cost stated in agenda-driven studies should not be relied on by any legislature. Aside from the cost issue, though, there are considerations of justice that defy economic measure. It would have been a grotesque miscarriage of justice if Steven Oken had been let off with life in prison for his multiple, sadistic crimes. The lives that can be saved through deterrence by an effective death penalty are not measurable in dollars.
The effort to repeal Maryland’s death penalty has apparently died again for this legislative session. It should stay dead. The Maryland General Assembly should turn its attention to fixing the review process to make the penalty effective. To borrow a phrase from a few years back, “mend it, don’t end it.”