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The Cost Attack on California's Death Penalty


Kent has noted that abolitionists in California are in full throat attempting to take down that  state's death penalty.  Their main arguments are that it costs too much and takes too long.  One recent piece setting out the case is by George Skelton in the LA Times.  Skelton relies largely on the recent Alarcon and Mitchell article on the death penalty, which Kent has previously deconstructed.

Skelton's attack is, in its way, clever.  He acknowledges that there are some killers who, when conclusively proved guilty, should be dispatched.  Indeed, he says that some should be "appropriately tortured first."  (He doesn't define what torture would be "appropriate," for which I'm grateful, being of the view that torture is barbaric).  But there's a problem, he says:

...the issue here is not about the merits of the death penalty. It's about inefficiencies and priorities. As we raise university tuitions out of sight, whack the poor and lay off cops, do we really want to be spending $308 million to snuff out one individual?

Am I the only one who thinks it's odd to maintain that, in considering whether to abolish the death penalty, we should shuffle off to the side "the merits of the death penalty"?

Hello!!!  If you want to lower the costs of X, you don't ignore the merits of X, and you don't just abolish it in a fit of frustration (however justified). You lower its costs. Under the theory advanced by Skelton, we should abolish imprisonment too, since, whatever its merits  --  which we'll take a pass on examining  --  it costs a bundle (much more than the death penalty), so out it goes.  Ditto with, say, Medicaid.  It might have its "merits," but we're going to walk past those to focus just on its massive and burgeoning costs.  Indeed, Medicaid expenses contribute vastly more to budgetary woes than the death penalty.  If the idea is to cut costs without worrying about the merits, that's the place to go.

Serious people understand that there is a good deal of low-hanging fruit out there to contain the expense and delay of California's death penalty.  I pick some of it after the break.  But Skelton is right about one thing:  California voters are very unlikely to abolish the death penalty unless they can be flumoxed into ignoring its merits.


One of the big reasons the death penalty costs so much is that it's litigated till the cows come home.  (Actually, cows don't live as long as the average time it takes California to finish litigating a capital case).  Litigation is very expensive.  But it doesn't have to be nearly this expensive, and it doesn't have to take this long either.

One way to contain costs for the death penalty is simply to cap the amount that can be spent pursuing it: One million for each side, max. (Timothy McVeigh's defense alone cost a scandalous $13,800,000 -- all for a bunch of hokum).  I was a prosecutor for almost two decades.  The idea that we have to spend unlimited millions on lawyers to decide a homicide case correctly is, I can assure you, preposterous.

We could  require every law firm having say, 50 or more partners, to provide pro bono representation.

We could, by statute, order that appellate counsel be appointed within 30 days of sentencing. (I understand that one of the major holdups is that it often takes years for the court to appoint appellate counsel, although I'm sure Kent knows more about this than I).

We could, also by statute, direct the courts to resolve any death penalty case within 90 days of submission.

We could provide that, when a capital conviction or sentence is overturned for ineffective assistance of counsel  --  now the most frequent avenue of attack in the reviewing courts  --  the deficient attorney be subject to a mandatory minimum civil penalty of $10,000, plus reimbursement of costs to the state. I guarantee you this will improve performance pronto. There will be many fewer do-over's, with the concomitant substantial cost savings.

This is hardly an exhaustive list. It is merely to illustrate that cost and delay problems can be addressed by remedies well short of abolition. 

P.S.  For now, I won't get into the extremely annoying, and revealing, fact that those leveraging cost to eliminate the death penalty are the very ones who've spent years trying to drive it through the roof.

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