Death Be Not Cheap

(Harvard Law and Policy Review - September 20,2011)

Death is in the news! Hot on the heels of Rick Perry’s avowed affection for the death penalty, the U.S. Supreme Court agreed to hear the appeal of Duane Buck, a Texas man so close to execution he had already eaten his last meal. Buck does not dispute his conviction, but rather disputes his death sentence. During the sentencing phase of his trial, a prosecution expert told the jury that death, and not life in prison, was appropriate because black people are more likely to commit future violent crimes.

If that seems excessive, keep in mind that it’s only one example of the strained calculus that goes into death sentences. Here’s another one: juries for trials in which death is a sentencing option are already biased because jurors who could not sentence someone to death are excused with cause.

California was all set to join the sixteen other states that have abolished the death penalty, but last month, the California Senate killed a bill that would have put death penalty abolition on the November 2012 ballot for voters to approve through our state’s wacky initiative process.

In place of the initiative comes Taxpayers for Justice, which has a new angle when it comes to outlawing the death penalty. In these days of austerity, cash-strapped states might want to consider something even more radical than legalizing marijuana to make ends meet: outlawing executions. The death penalty is many times more expensive than even incarceration for life. In Texas, for example, the average death penalty case costs the state $2.3 million, about three times more than it costs to imprison a single person for 40 years. That’s thanks to the high cost of appeals, which death row inmates are graciously afforded. It’s also attributed to the death penalty being a poor man’s game; very, very rarely are wealthy or even middle-class people sentenced to death, meaning that the state is paying for their defense.

Since 1978, when the state’s death penalty statute was altered to make the death penalty constitutional, California has executed only thirteen people. Total cost? Possibly $4 billion, according to a study published over the summer by Ninth Circuit Judge Arthur L. Alarcon and Loyola Law School Professor Paula M. Mitchell. That’s given an estimate of $308 million in security costs and legal fees for each of the thirteen executions. The cost for death row itself is possibly $184 million each year (or, in other words, over three million new school textbooks. Just sayin’).

The strained explanations, massive spending, and doublethink on the death penalty reflect what Occam knew only too well: we just shouldn’t have a death penalty. How odd, as Slate contributor Dalia Lithwick points out, that conservatives like Gov. Perry don’t trust the government to build a freeway correctly but possess unequivocal confidence in its ability to end the life of the right guy, every time. Want to cut some state budgets? End the death penalty. It’s moral and pragmatic!