The new case against the death penalty

The bittersweet reality is that money, rather than morality, has become the tipping point for abolishing it.

This year, state budgetary crises have given death penalty opponents their most successful argument yet – money.

Just two states have abolished the death penalty in the past 40 years, New Jersey in 2007 and New Mexico in March. The cost of capital punishment played a key role in both decisions, and is driving current legislative attempts to repeal the death penalty in a number of other states.

The bittersweet reality is that money, rather than morality, has become the tipping point for saving lives. Why?

Administering the death penalty is breathtakingly expensive. Contrary to popular opinion, it costs substantially more to execute people than to send them to prison for the rest of their lives.

In California, which houses the nation's largest death row, it costs about $137 million annually to maintain the state's death penalty system. The state has conducted only 11 executions since reinstating the death penalty in 1978, bringing the average cost per execution to $250 million. That's right – a quarter of a billion dollars per execution.

California's estimated cost of administering a system without capital punishment (imposing instead a maximum sentence of life without the possibility of parole) is $11 million annually, which means the state could save $126 million per year if it rescinded a penalty that it almost never uses. That's big money – money that could be allocated to healthcare and to education, money that could put more police officers on the streets and take more killers off them.

California's costs are on the high side nationally, but the phenomenon is not unique. Maryland recently estimated that the death penalty has cost the state $186 million since it was reinstated in 1978 – an average of $37.2 million for each of the state's five executions during that same period.

Two years ago, New Jersey calculated that the death penalty had cost over $250 million since its reinstatement in 1983 – and for all the money invested, the state had not a single execution to show for it. Little wonder New Jersey decided to cut its losses and close death row.

And why is the death penalty so expensive?

When the stakes are life and death, everything costs more.

It costs more to investigate – three times more, one study concludes, because in the post-trial penalty phase, the defendant's entire life will be put before the jury.

It costs more to litigate – up to 16 times more, the same study concludes, because jury selection is painstakingly slow and capital cases are complicated, so they take longer to try. That, in turn, requires courts to bring in additional judges to handle the overflow from already overcrowded dockets.

And it costs more to carry out death sentences – an estimated 21 times more – because lengthy appeals follow a death sentence, and death row incarceration is expensive.

Sure, we could cut the lengthy appeals, as many death penalty proponents advocate.

But the last major study on death penalty appeals found that 2 of every 3 death sentences were reversed for serious error, with prosecutorial misconduct and ineffective assistance of counsel topping the list. These aren't technicalities. These are cases where prosecutors concealed evidence favorable to the defense – cases where people with their lives at stake were defended by grossly incompetent lawyers. The better answer is to have better trials, and that brings us back to money.

Vengeance comes at a high price. In these austere times, that price is changing the script of the death penalty debate. In the past, a vote against capital punishment left politicians vulnerable to the charge of being "soft on crime." Now the same vote is couched in terms of fiscal responsibility. Because it saves taxpayers money, it has become the right thing to do.

Money is the new morality.

The turn itself is significant. In the United States, we have now exonerated some 130 people on death row. We have dozens of studies proving racial discrimination in the administration of death, and case after case showing the persistence of woefully inadequate defense counsel. On their own, these issues have not moved us.

Abolishing the death penalty didn't make sense until it made dollars and cents.

In the drive to eliminate capital punishment, I suppose a money argument that works is better than a moral argument that doesn't. But there is a larger cost to monetizing the death penalty debate, a cost to sparing an individual's life simply because it is not worth taking. We have reason enough to make the right call on the death penalty without it.

Corinna Barrett Lain, a professor at the University of Richmond School of Law, is a former prosecutor.

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