Death Penalty Cost May Deter Supporters

Story first appeared on wsj.com.

Opponents of the death penalty are finding some unlikely allies: tough-on-crime types concerned about its cost.

Some longtime supporters of the death penalty now think the punishment should be scrapped, even as they continue to see it as a just option in heinous crimes and as an effective deterrent. They are questioning whether the occasional execution is worth the taxpayer money spent on lengthy appeals and costly lawyers for inmates, especially at a time when state budgets are strained.

This consideration is particularly keen in California, where a referendum to abolish the death penalty will appear on the ballot in November. Politicians in more conservative states also are taking another look at capital punishment, on cost grounds.

"I was a supporter and believer in the death penalty, but I've begun to see that this system doesn't work and it isn't functional," said Gil Garcetti, a Democrat who served for eight years as district attorney in Los Angeles County, which is responsible for roughly one-third of California's 727 death-row inmates. "It costs an obscene amount of money."

Many death-penalty supporters, meanwhile, agree that costs must be reined in, but they say capital punishment should be fixed instead of abolished.

"My theory is 'mend it, don't end it,' " said former California Gov. Pete Wilson, a Republican who opposes the ballot measure, Proposition 34. "The system works in many other states, and it doesn't in California because the appeals are endless."

The conflict comes amid deepening uncertainty over the death penalty, which was reinstated in many states after it was upheld as constitutional by the U.S. Supreme Court in 1976. While 33 states retain the power to sentence inmates to death, capital punishment faces a host of challenges, from the growing number of exonerations of convicts—often because of new DNA evidence—to shortages of drugs used in lethal injections.

Since 2007, the death penalty has been abolished in five states—Connecticut, Illinois, New Jersey, New Mexico and New York. And public support for capital punishment, while at 61%, is at its lowest level in 39 years, according to a Gallup poll last year, the latest available.

Use of the death penalty has dropped sharply in recent years. In 2011, 43 inmates were executed and 78 were sent to death row, down from 85 executions and 224 death sentences in 2000, according to the Death Penalty Information Center, an organization largely opposed to the way the death penalty is used in the U.S.

The latest test comes from California, where a referendum proposed by a coalition of death-penalty opponents would replace the death penalty with a sentence of life without parole for all death-row inmates. The state, which last executed an inmate in 2006, holds nearly a quarter of all death-row inmates nationwide.

Polls on Proposition 34 show Californians by a narrow margin don't want to abolish the death penalty, with significant percentages undecided.

Some supporters of the referendum point to a 2011 study co-authored by Arthur Alarcón, a federal appellate judge for the Ninth Circuit in Los Angeles, which found California had spent more than $4 billion on capital punishment since it was reinstated in 1978—about $308 million for each of the 13 executions since then. The referendum calls for devoting $100 million in budget savings over the next 3½ years into investigations of unsolved rape and murder cases.

Judge Alarcón, who was nominated to the federal appeals court by Jimmy Carter and who was a strong backer of the death penalty, admits to feeling conflicted about it now, although he hasn't wholly changed his opinion because of concerns about what more life-without-parole inmates would mean for the safety of other prisoners and guards.

Former California jurist and self-described "right-wing Republican" Donald McCartin, who died last month, became an outspoken critic of the death penalty in recent years, largely because of its costs. Judge McCartin had been known as "the hanging judge of Orange County" for having sent nine men to death row during his 15 years on the bench.

Opponents of the referendum say its supporters have overstated the financial burden of the death penalty, partly by inflating housing expenses, and that predictions of immediate cost savings are wrong. "It's funny math," says Jan Scully, the district attorney in Sacramento County, who supports the death penalty.

In California, according to the Alarcón study, the cost of housing a death-row inmate outpaces the cost of housing a general-population prisoner by $100,000 a year, primarily because death-row inmates are housed alone instead of two-to-a-cell, and they require a higher level of security.

The state, like many others, provides two lawyers to every death-eligible defendant, who are each then essentially afforded two full-scale jury trials, one to determine guilt and another to determine whether a death sentence is appropriate. The Alarcón study concluded jury selection alone in capital cases costs more than $200,000 above the amount for life-without-parole cases and that death-penalty prosecutions can cost 20 times as much as a life-without-parole case.

Death-penalty supporters in California and elsewhere argue that legislatures and courts have gone overboard in bulletproofing the system, often allowing for frivolous filings and appeals by inmates. They cite Texas and Oklahoma as states with more efficient and effective death-penalty systems, and point to Virginia's 2009 execution of John Allen Muhammad, the convicted "D.C. sniper," as an example of a death sentence administered properly. "It was six years, sentence to execution," said Kent Scheidegger, a death-penalty supporter and legal director of the Criminal Justice Legal Foundation in Sacramento, Calif. "There's no reason an appeals process needs to take longer than that."

But opponents say a smooth process like Mr. Muhammad's is a rarity. In California, it takes an average of 25 years from sentencing to execution.

"The 11 men currently on death row in Connecticut are far more likely to die of old age than they are to be put to death," said Democratic Gov. Dannel Malloy, a former death-penalty supporter, after signing the bill to end that state's death penalty in April.

In Montana, some conservatives are behind a movement to do away with capital punishment because of cost. "The death penalty is another institution of government that is wasteful and ineffective," said Steve Dogiakos, director of a group called Montana Conservatives Concerned About the Death Penalty, which has the support of a number of former and current legislators.

In Utah, a Republican lawmaker recently asked for a fiscal review of how much is being spent on capital cases. "I don't have any illusion that either the Utah legislature or the people are ready to overturn the death penalty," said State Rep. Stephen Handy, who called for the study. "But I want to start the dialogue."