We know the basic reasons why death penalty cases are expensive: more lawyers, more experts, more time. Prosecutors and defense attorneys often spend more than a year preparing for death penalty trials. Every successful conviction is appealed to several state and federal courts, meaning the government pays for both prosecutors and defenders to pick over the trial transcript and for judges and clerks to spend hours reading appeals. While this is going on, it costs more to house prisoners on death row than in the general population.
These facts have been well studied in research out of California, Colorado, Florida, Idaho, Indiana, Kansas, Maryland, Nevada, New Jersey, New York, North Carolina, Oregon, Tennessee, Texas, and Washington.
But the death penalty is also growing more expensive with each passing year.
A 2010 report prepared for the Judicial Conference of the United States found that between 1989 and 1997 the median cost of a federal death penalty case that went to trial was $269,139; between 1998 and 2004 it had grown to $620,932.
Nobody has methodically studied how costs have been growing in state death penalty cases, but in interviews with more than 30 prosecutors, defense attorneys and other experts the consensus was that costs are going up fast. Here are the main reasons they cited:
1. Attorney Pay
Both defense attorneys and prosecutors say they spend more hours preparing for death penalty trials than in years past. Prosecutors do not bill individual hours, but several district attorneys said they allocate more staff to work on death penalty cases than they did in previous decades because the cases have grown more complicated. The reasons for that will become clear below.
Defense hours are easier to track because these attorneys are usually paid by the hour. The 2010 judicial conference report found that attorneys for defendants facing the death penalty spent an average of 1,889 hours per trial between 1989 and 1997. Between 1998 and 2004, the average was 3,557 hours. By 2007, according to the American Bar Association, many counties were paying at least $100 per hour.
In 1985, the U.S. Supreme Court ruled that defense lawyers have a right to a psychiatric evaluation for their client if the prosecution gets one. But where an IQ test and a quick interview may have been sufficient in years past, now psychiatrists obtain an entire mental health history of the defendant. “If you're trying to speculate about what someone with a concussion did,” said Kathryn Kase, Executive Director of the Texas Defender Service, “a conversation with a psychiatrist might not be enough. You might need a CT scan, or an MRI.”
Experts whose specialties did not exist in earlier eras are now regularly called in death penalty cases. “Experts may also be needed to explain why mistaken eyewitness identification commonly occurs, or to explain why someone might falsely confess,” said Natasha Minsker, Associate Director of the American Civil Liberties Union of Northern California, in a 2008 report. “Modern science has greatly enhanced our ability to distinguish the innocent from the guilty and to identify the mentally ill, but all of this costs money.”
As the quality and cost of experts have risen, prosecution and defense are spending more to compete with each other. There’s no way to ratchet down. “I won’t use anybody to do autopsies except for triple board certified forensic pathologists,” said Randall Sims, District Attorney of Potter County in the Texas panhandle, “so that I don’t wind up having one only certified in one area, and then the defense has a better one.”
Over time, the U.S. Supreme Court has created new standards regarding what prosecutors and defense attorneys need to do in order for a death sentence to be constitutional. New standards mean new and costly legal battles.
In the Texas murder and robbery case of Brittany Holberg, District Attorney James Farren estimated that Randall County paid between $500,000 and $700,000 to obtain a death sentence in 1998. When Holberg’s appeals were taken on by a civil law firm in San Francisco, the state no longer had to pay for her defense but the new attorneys had virtually unlimited resources to reinvestigate the case. They found multiple reasons to believe that Holberg did not receive a fair trial because her initial attorneys did not present enough evidence that her victim may have had a history of violence, among other oversights. They have been appealing the sentence, and the Texas Attorney General’s office has paid more than $300,000 between 2011 and 2014 to keep the sentence from being overturned.
And that’s a death sentence that remains intact, so far. When an appeals court reverses a death sentence — whether due to a fault in the work of a defense lawyer or prosecutor, an incorrect instruction given to the jury by the judge, a piece of evidence that should have been shown to a jury and was not, or any number of other reasons — the county faces the cost of an entire second trial and another round of appeals. David Powell was executed in 2010 for shooting an Austin police officer in 1978. His death sentence was reversed twice, meaning the county had to pay not for one trial but for three.
In 2003, the U.S. Supreme Court ruled that Kevin Wiggins — who had been sentenced to death for raping and murdering a woman in Maryland in the late 1980s — would get a new trial because his lawyers had failed to investigate his past. “Wiggins experienced severe privation and abuse while in the custody of his alcoholic, absentee mother and physical torment, sexual molestation, and repeated rape while in foster care,” the court wrote. “The available mitigating evidence, taken as a whole, might well have influenced the jury’s appraisal of his moral culpability.” Mitigation specialists had started to work with defense teams in the 1990s, but after the Wiggins decision they eventually became paid members of all capital defense teams.
The North Carolina Office of the Capital Defender pays mitigation specialists between $35 and $55 per hour. Harris County, Texas, which includes Houston, pays $75 per hour. That’s also the statewide rate in Florida.
Mitigation investigations can take hundreds of hours, as specialists gather school records, medical records, and other documents. They often speak with several generations of family members about the defendant’s upbringing, looking for information that might explain the murder or make the defendant more sympathetic to a jury. If those family members live in another state, or another country, the mitigation specialist’s travel costs can grow quickly.
In 2011, U.S. 9th Circuit Court Judge Arthur L. Alarcón and attorney Paula Mitchell published a massive study arguing that the death penalty had cost Californians $4 billion since 1978. They found that jury selection could take as much as a month longer in death penalty trials and cost roughly $200,000 more than in other murder trials. As support for the death penalty declines, Mitchell said, it takes longer — more paid hours on the part of attorneys, the judge, and court staff — to find twelve jurors who are willing to impose the punishment. “You have more people who are ambivalent,” she said.
Felons sentenced to life in prison may eventually be placed in the general population, but death row inmates are virtually always housed in administrative segregation, or solitary confinement, which costs more per day due to heightened security. A 2014 study out of Kansas reported that a death row prisoner costs $49,380 to house per year, whereas a general population prisoner costs $24,690.
As appeals come to take longer and challenges to lethal injection protocols slow down the execution process, these housing costs add up. The problem is perhaps most stark in California, which has the country’s largest death row but rarely carries out executions. Mitchell, the attorney, found that the yearly cost of housing and medical care for the state’s death row inmates comes to $184 million. She said that death penalty proponents have long argued that replacing the punishment with life without parole would force the state to pay the medical costs of elderly inmates, but this is now happening anyway.