In the next edition of the Loyola of Los Angeles Law Review, Ninth Circuit Judge Arther Alarcon and Loyola professor Paula Mitchell provide details regarding the cost of California’s death penalty law. The study was previewed in a front page article in the LA Times. The numbers in their report raise serious doubt as to whether seeking the death penalty is justifiable compared to life in prison without parole.
Of course the purpose of law enforcement is to keep citizens safe. Even advocates of small-government agree that this is a proper government function. But, what is the best way of doing this?
One of the first principles of economic analysis is opportunity cost. Opportunity cost states that the real cost of doing something is the lost opportunity to do something else (including nothing) with the same resources. The resources include money/capital, labor, materials and time. Choosing to do option A (even if doing A is a good thing) is a poor economic decision if it prevents one from accomplishing the even better option B.
Here are some of the costs caused by California’s and the U.S.’s current application of the death penalty:
- The moment that the prosecutor decides to go for the death penalty, jury selection takes two to three weeks longer. The Court thereby loses the ability to fit at least one other serious case on its calendar.
- The study found that the least expensive death penalty case cost $1.1 million more than the most expensive life-without-parole case. That $1.1 million means lost effort investigating and prosecuting other cases.
- Presuming that the prosecutor wins the death verdict, the automatic appeals cost as much as $300,000.
- The additional security precautions required of death row inmates add an additional $100,664 per inmate per year over life-without-parole inmates, or about $72 million dollars per year with the present California death row population.
Obviously there are huge opportunity costs associated with the decision to seek the death penalty over life-without-parole. So, what are the benefits compared with life-without-parole sentences? The following are most often cited:
- A death penalty increases crime deterrence. Under this reason, potential criminals will think ‘if I do this I might be caught and get the death penalty’. But this reflects the thought pattern of law-abiding citizens. Criminals, particularly violent criminals, are generally not doing long-term risk vs. reward thinking. Even if the criminal is thinking in this fashion, deterrence is minimized by the product of the possibility of punishment and the severity of that punishment. Stated otherwise, while the death penalty is severe, it occurs so rarely, even among those caught and convicted, that the deterrent effect is lessened. One might even argue that if the resources described above were diverted to additional law enforcement activities, the increased chance of getting caught might provide more deterrence than the reduced severity of punishment once caught.
- A death penalty helps victims and society achieve ‘closure’. Exactly what constitutes ‘closure’ is difficult to say, since most psychologists agree that the desired closure rarely ever actually occurs. Under our current legal processes, a death sentence is the start of a long process that is definitely uncertain and takes years to become final. Perhaps a sentence of life without parole could provide a more rapid sense of being certain and final.
There have been no executions in California in over 5 years. The average time between sentencing and execution is25 years, and growing. The study’s authors describe the current death penalty as existing mostly just in theory.
The study concludes with three policy options:
- Restore credibility to the death penalty by adding attorneys and facilities, at a cost of $85 million per year.
- Vastly reduce the number of death penalty crimes and change the sentences of those currently jailed for those crimes to life-without-parole, at a savings of $55 million per year.
- Eliminate the death penalty and convert all those currently on death row to life-without-parole, at a savings of up to $200 million dollars per year.
Sensitivity over the cost of California’s death penalty has been increasing with the state’s financial hardships. Last month, Governor Brown cancelled the construction of a new $356 million death row facility at San Quentin. The old facility was designed for 554 inmates, but currently holds 700. California added 28 new death penalty convictions last year.