My local paper wants to write a story about how much it costs a small county to prosecute a capital murder wherein the State seeks the death penalty. (I know you will be shocked to learn that this comes at a time when I am deciding whether to seek death on a couple of Aryan Brotherhood capital murders.) The reporter is actually a good guy, and he's going to write the story with or without my input, so I'd just as soon help him make it accurate. The problem is that my county hasn't sought death in about ten years. Does anyone have any suggestions of where I can find some pretty accurate figures? As much as I hate to admit it, cost is something that I have to factor into the mix when making this call, so the information should also help me.

Make sure the reporter puts a value on the victim's life and society's future safety. Good luck on picking a number.

Contacting the County Auditor in several like sized counties might be a good start, Steph.

I have been asked the same thing on different occasions. The question is rhetorical - the amount is not the issue. Example: is it justified to seek the death penalty if the cost is less than imprisonment (don't wince, the cost is probably less); do you seek the death penalty if it costs $30.00 more or only $2000.00 more; do taxpayers complain of the cost or of the delay in carrying out the sentence. Please read the response of "JB" again.

Stephanie, when I first took office many years ago, I inherited a slew of pending capitals. This was back when you either sought the death penalty or the killer was eligible for parole after 15 or 20 on a life sentence. And these were some really bad guys. I evaluated the cases and felt that several needed the death penalty. I tried several of them as dp cases. I remember trying 2 in 1985. Most of them had court appointed attorneys and a "free" record on appeal. In my opinion, unless you have some private experts (and the defense will probably have some depending upon the evidence in your case), the main cost will be court appointed defense attorneys at trial and the record on appeal (we know you're gonna win so there will be an automatic appeal). You can get those average costs from counties who try a bunch of death penalty cases. I would give Chuck Rosenthal a call... I bet he could point you in the right direction. Anyway, back to my experience, I've spent a whole bunch of money on private experts, particularly when DNA was a new thing. My point is that I don't recall any citizen ever complaining about the costs of these trials. I've found that they don't mind spending tax dollars on capital murder trials when the killers deserve it. I agree with JB, et al. I wouldn't go down the road of trying to give a figure. I would point out that there will be extra costs primarily because of individual voir dire which lengthens the over-all trial time. However, tell the reporter that you have no control over those costs and you don't charge any over time for your added time. Come up with a good quote for the reporter which generally emphasizes the non-monetary issues in these types of cases such as victims, justice, etc. This post is getting too long but give me a call if you want to kick this around further. In summation, just make sure as best you can that you've got a case and a defendant which cries out for the death penalty. If so, go for it. Don't worry so much about the Cty Commissioners. They'll cry because they might only be thinking of the road grader that they can't buy this year. But they won't say much publicly. Let your county auditor know that there will be some added costs when the case is tried and thereafter but let your judge give the auditor a cost estimate if they request one. Last (at last), check with the family of your victim(s) and get their feelings about seeking the DP. I'm finding more and more that families prefer life without parole... Good luck and let me know if I can help.

Remember also that it is not accurate to merely cite the cost of the death penalty trial as if the other alternative is no cost at all. That is disingenuous - comparing the cost of the DP trial to the cost of a trial in the same case if you don't seek the DP is much more forthright. And of course it is possible that the def. would appeal even a life sentence, so costs of an appeal may be similar, especially as far as the cost of providing a record. As mentioned above, one of the significant costs in a DP case is the extended voir dire, and potentially an extra attorney if your judge would normally only appoint one lawyer in a non-DP case. I can't recall the exact qoute right now, but a prosecutor I highly respect compared the additional cost with the "cost" of violating his oath to uphold the law and the statutory duty to seek justice. Good luck.

I think its an interesting question. I hope you post your findings here.

Evaluating costs is one of the many tricks in a large bag filled by the anti-death penalty crowd. That same logic is also being pushed to justify the release of prisoners: gee, it just costs so much more than the loss involved in the crime itself.

So, when did criminal justice become a purely cost-benefit analysis to be handled by the bean counters?

You are probably better off finding someone who has handled the finances for DP cases in a county similar to yours, but here's some quick facts that might or might not help.

According to the State Comptroller of Tennessee's July 2004 report, "Survey data indicates that capital trials [in Tennessee] cost an average of $46,791; life without the possibility of parole trials cost an average of $31,494; and life with the possibility of parole trials cost an average of $31,622."

Kansas did a similar report in 2003 and looked at the difference between local and state costs there. Our laws are probably different, but these stats may help. They found the average cost in 14 death penalty cases there was $1.2 million per case, but 85% of that was borne by the State, including defense costs, incarceration prior to execution, the execution itself, etc. Which leaves about $182,000 to the local government per case.

There are tons of anti-DP groups that will cite the higher costs of such trials, but they generally don't focus on the local costs, and they have agenda's which I hoped to avoid by looking at the legislatively ordered studies.

As to the issue of the cost of a human life, FCC economist Dr. Paul Zimmerman wrote, "it is estimated that each state execution deters somewhere between 3 and 25 murders per year (14 being the average). Assuming that the value of a human life is approximately $5 million (i.e., the average of the range of estimates provided by Viscusi (1993)), our estimates imply that society avoids losing approximately $70 million per year on average at the current rate of execution all else equal, i.e., ignoring all other corresponding social benefits and costs of implementing capital punishment)." "State Executions, Deterrence and the Incidence of Murder", Paul R. Zimmerman, March 3, 2003, Social Science Research Network.

I assume your commissioners are unlikely to be impressed when you argue that seeking the death penalty will actually save 15 to 125 million dollars, however. You might suggest to them that seeking death over life will add about 70% to the cost, which I've seen reported several times.

I honestly have never seen a figure that I thought was accurate.

The Dallas Morning News tried to put a figure to the costs of a death penalty case back in the '90s, and they ended up around $2-$3 million, but their methodology was weak and some of their underlying data was speculative. I don't think there is a way to adequately account for soft costs, salaried employees, etc.

Your reporter's best bet is to look at more reputable figures from agencies in other states that have taken a long, detailed look at this. Most reporters don't spend enough time to do it right.

It's not purely a cost-benefit analysis. But I have to be prepared to go to my Commissioners and tell them how much money they need to allocate. In a county the size of mine, if we are going to need an extra $100,000 in the indigent attorney line item, that's a significant amount, and something that is not considered in the regular budget. I'm not saying that the money isn't justified, and I'm not saying that anyone's reluctance to spend the money is a deal-breaker for me. But the reality is that I need to know this information. I cannot put my head in the sand and pretend like this isn't going to be a significant expense to my county.

I'm a long way from making a decision in my cases, and I really don't want to discuss the facts here, but I have a gut instinct about what is right in these cases. I really appreciate all the suggestions. If I should uncover any answers regarding costs, I'll be sure to share them.

Philosophically, the costshouldn't play into the decision to seek death - but in the reality that is budgets, auditors, and commissioners court - it's a legitimate issue.

If you have to go to commissioner's court - don't forget the mitigation "experts" cost.

After the CCA's opinion last year pretty much saying a defense attorney will be ineffective without an exhasutive mitigation investigation, every defense attorney in our county wants a mitigation "expert" - I think they're really just specialized investigators - but whatever - they're labor-intensive and expensive.

Depending on the facts of your case - I wouldn't be surprised if the mitigation investigators cost approached $35k.

I seem to recall that the Governor's office had some sort of fund that that a small county could tap into to defray the expense of trying a capital case. It has been several years since I read about this, but it bears looking into.

Ken, you are referring to CCP Art. 104.004, "Extraordinary Costs of Prosecution." It provides counties (esp. rural ones) with financial assistance so that cost does not have to be the predominate concern in determining what is the just sentence to seek in a case.

Capital Cases Stalling as Costs Grow Daunting
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By SHAILA DEWAN and BRENDA GOODMAN
Published: November 4, 2007
ATLANTA, Nov. 3 � When Hilton M. Fuller Jr., a semiretired judge of the silver-haired, Southern-gentleman variety, agreed to preside over the trial in a notorious courthouse shooting here, he took a job no one else wanted � the legal community was still in shock over the death of a judge, a court reporter, a sheriff�s deputy and a federal agent.

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Top, pool photo by Zachary D. Porter; Below, pool photo by Bita Honarvar
Judge Hilton M. Fuller Jr. has faced impeachment threats, a lawsuit and ridicule over his handling of the murder trial of Brian Nichols, bottom.

But now, two years later, the truly thankless nature of Judge Fuller�s task has become evident. The legislature has threatened to impeach him. Columnists have taken him to task. On Friday, the district attorney sued him in State Supreme Court. Even fellow judges have abandoned their usual reticence. On a recent afternoon, he received a copy of an e-mail message from a colleague calling him a �debacle,� an �embarrassment� and a �fool.� And the trial has yet to begin.

The anger directed at Judge Fuller revolves around an issue more and more states are being forced to confront � the rising cost of an adequate defense in death-penalty cases. Even as an examination of lethal injection by the Supreme Court has seemingly suspended the practice across the country, many experts predict that the cost issue will have far broader implications for the future of the death penalty.

States unwilling to pay the huge costs of defending people charged in capital cases may be unable to conduct executions.

For Brian Nichols, accused of killing four in the courthouse shooting in March 2005, the costs have already reached $1.2 million. That, together with legislative cuts, has left the state public defender system with no money. Until the bills are paid, the judge has delayed the trial, saying that it is unconstitutional not to pay the defense and thus pointless to proceed. In turn, lawmakers have accused him of conspiring to end the death penalty in Georgia.

The state could avoid the multimillion-dollar trial by dropping the death penalty option. Mr. Nichols has offered to plead guilty in exchange for a sentence of life without parole, but the district attorney, Paul L. Howard Jr., has declined.

Judge Fuller is not the only jurist to try to force states to pay for a defense that will pass muster with higher courts. Last month, the New Mexico Supreme Court suspended the prosecution of two prison inmates accused of killing a guard, saying their lawyers� pay was so low it was unlikely they could be effective. In Utah, a judge has asked if he can force a lawyer to represent a convicted killer on appeal because, at fees amounting to less than $10 an hour, no one wants the job.

In California, a federal judge complained in May that death row inmates were waiting more than three years to get a lawyer because the state would not raise the hourly rate. Arizona, Texas and Louisiana are having similar troubles.

�I don�t think there�s any question that lethal injection is going to be allowed, it�s just a question of how,� said Stephen B. Bright, a capital defense lawyer and president of the Southern Center for Human Rights in Atlanta. �But the right to counsel is as fundamental as it gets � every other right depends on it.�

Defense costs are just one factor in the steep price states are beginning to consider. A 2005 study by New Jersey Policy Perspective, a liberal research group, estimated that capital punishment had cost the state $256 million since 1983, including $60 million for defense, and the state has not executed a single inmate in that time. A bill to abolish the death penalty is given a fair chance of passing.

But the issue has come into sharpest relief here, thanks to the scrutiny of the courthouse case, arguably the most complicated murder case in state history.

State Senator Preston W. Smith, the Republican chairman of the Judiciary Committee, has complained that Mr. Nichols is receiving a �high-end, O.J.-style defense� that most taxpayers could not afford. But while the price sounds high, especially for a man whose guilt no one doubts, the cost of even a minimal capital defense has been driven up by technology and the increasing sophistication of law enforcement.

Mr. Nichols faces a 54-count indictment, a team of five prosecutors, and 400 potential prosecution witnesses. Prosecutors gave the defense team 32,000 pages of documents and 400 hours of taped telephone calls. The defense team has an obligation to review all of the information and investigate each witness. To the irritation of lawmakers, Judge Fuller has kept budget requests sealed to keep the defense strategy from becoming public.

Judge Fuller is bound by recent Supreme Court decisions that have underscored the importance of the defense counsel�s performance during the sentencing phase of the trial, when juries consider mitigating and aggravating factors in deciding whether to impose the death penalty. In a 2003 case, the court ordered a new sentencing hearing because defense lawyers failed to fully investigate their client�s background and present evidence of severe childhood sexual and physical abuse. In a 2005 case, the Supreme Court again found that a more thorough review by the defense would have unearthed information that the jury should have heard.

In both cases, the court cited guidelines issued by the American Bar Association in 2003, which detail the special skills capital defenders must have and the �extraordinary efforts� they must undertake because of the irreversible punishment. Capital defendants must have at least two lawyers, the guidelines say, and each phase of the appeals process should include an independent investigation.

Exonerations have also highlighted the need for a competent defense. �We have all this new evidence being discovered 10 years later,� said George H. Kendall, who has monitored capital defense in Georgia and now works in the New York office of Holland & Knight. �If there was a real defense at the time, it would have come up then.�

The Nichols defense team, which plans to argue that its client was suffering from a mental disorder, says the anger at Judge Fuller is misplaced. The defense budgets are first presented to the Georgia Public Defender Standards Council, which has not objected to any of the requests as unreasonable. It has simply said it cannot pay.

But neither the judge nor the council has been spared.

The council was established as a statewide public defense system in 2005 in response to widespread problems, including divorce lawyers assigned to capital cases and lawyers sleeping through trials. Three months later, the Nichols trial became the first major test of lawmakers� commitment to the new system. They have seized control of the council and gutted its capital defense budget, cutting it to $4.8 million from $7 million a year.

Courts have repeatedly demanded a better defense in capital cases, but states have repeatedly refused to pay for it. In 1996, Congress established a �fast track� that would shorten federal deadlines in capital cases if states agreed to provide competent representation to death row inmates. No state has fulfilled the requirements.

Capital defense lawyers face the highest possible stakes, but in many states the job is one of the lowest-paid in the legal system. In New Mexico, for example, appointed capital defenders work under a contract system that caps their fee at $24,500, a salary that amounts to an hourly wage of just $19.50 for the average death penalty case, not enough to cover their overhead, according to a brief filed by the New Mexico Criminal Defense Lawyers. In contrast, private criminal defense lawyers in New Mexico made an average of $161 per hour in 2004.

The lead lawyer in the Nichols case, Henderson Hill, is billing $175 an hour instead of his usual $325. Another of his four lawyers has waived her fee. None have been paid since July.

Lawmakers say Judge Fuller and the defense lawyers are deliberately driving up the costs to make sure that the death penalty is too expensive for the state.

And in fact, better-financed systems do reduce the number of capital cases � coming closer, advocates say, to ensuring that the death penalty is reserved for the worst of the worst offenders. North Carolina, which instituted what is often pointed to as a model capital defense system in 2001, has gone from an average of 24 capital convictions a year to 5. It is too soon to know if the reversal rate, extraordinarily high in death penalty cases, has also been reduced.

When Judge Fuller took on the Nichols trial, prosecutors and defense lawyers alike praised the choice, saying he had rarely, if ever, been overturned on appeal. But his reputation has since taken a beating.

�I�m beginning to think I am a fool for taking this case,� the judge said, rereading the e-mail message in which a fellow judge called him one. �I thought people would give me the benefit of the doubt. That was na�ve.�

JAS