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Expanding the Death Penalty Is Fiscally Irresponsible PDF Print E-mail
Commentary/Politics - Guest Commentaries
Written by John W. Whitehead   
Wednesday, 04 February 2009 01:52

John W. WhiteheadThe Commonwealth of Virginia is in the throes of a massive budgetary crisis, with a current shortfall of just under $3 billion. As a result, a reduction in services, job losses, and funding cuts for secondary and higher education are expected. Lawmakers, officials, and state employees also face the difficult task of paring down their budgets in the face of dwindling financial support from the Commonwealth. As Delegate Terry G. Kilgore stated, "Everyone needs to be concentrating on the budget this year. The budget transcends everything."

Yet in the midst of this financial crisis, the Virginia legislature is expanding the death penalty, which will only further burden Virginia taxpayers. The various proposals to expand the death penalty include adding fire marshals, assistant fire marshals, auxiliary police officers, and uncompensated auxiliary police officers to the capital murder statute. One bill would also redefine the "triggerman rule," which now says that only a person who pulls the trigger in a capital murder case is eligible for the death penalty, so that accomplices could also be eligible for the death penalty.

Unfortunately, as other states have learned to their detriment, expansive use of the death penalty only increases the financial burden upon state coffers - and taxpayers. In fact, studies in Maryland, North Carolina, and Florida show that, due to the lengthy nature of death-penalty trials and appeals, states incur costs far exceeding those of non-death-penalty cases.

Most recently, a Maryland commission charged with reviewing the state's capital-punishment system concluded that "death-penalty cases are more costly than non-death-penalty cases" and recommended that the state discontinue executions in favor of the life-without-parole sentencing option. This echoes a New Jersey commission's 2007 finding concerning the prohibitive costs of capital punishment. For example, a Duke University study determined that North Carolina incurred $2.16 million per execution over the cost of condemning a convicted murderer to life in prison. (It bears noting that over the past 32 years, Virginia has executed 102 individuals. Assuming a comparable expense rate for the Commonwealth's executions, the cost of Virginia's state-sanctioned deaths comes in at $220 million total, or about $7 million per year.)

In addition to the costs of the actual executions, one must also factor in the expenses associated with prosecuting capital-punishment cases, which can take many years until the various avenues of appeal are exhausted. California counties, for example, spend an additional $1.1 million in prosecuting death-penalty cases over standard murder trials, with the state committing an additional $117 million a year. The vast majority of these expenses are derived from providing public defenders for the accused during the long trial and appeal process, as well as attorneys for the prosecution and court costs.

The Palm Beach Post found that the cost of death-penalty cases in Florida far outstrips the price for standard-fare murder prosecutions. Indeed, the death penalty forces the state government to disburse $51 million more a year than it would if all capital-punishment prosecutions instead sought a sentence of life without parole. As Elliott Metcalfe, president of the Florida Public Defenders Association, observed, "It is much cheaper to put these people in prison and leave them there until they die. Simple as that."

It's time to re-examine our priorities. For most Americans, that means keeping a roof over their heads and food on the table, and ensuring that their taxpayer dollars are being used where they can do the most good. Thus, at a time when Virginia lawmakers are being forced to eliminate thousands of jobs, slash agencies' spending by 15 percent, and trim $800 million from K-12 education and Medicaid programs for the indigent, elderly, and disabled, the last thing our representatives need to be doing is adding to the tax burden by expanding the scope of the death penalty.

It's time to declare a temporary moratorium on the death penalty while a review commission can be formed to investigate the condition of the Commonwealth's death-penalty system, both financially and legally. These actions will save the Commonwealth millions of dollars in the short term and also allow Virginians to make informed, responsible decisions regarding the death penalty in the long term.


Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book The Change Manifesto is now available in bookstores and online. He can be contacted at This e-mail address is being protected from spambots. You need JavaScript enabled to view it . Information about The Rutherford Institute is available at


Comments (3)Add Comment
written by Dudley Sharp, February 24, 2009
Mr. Whitehead needs to fact check. He needs to re asses all of the cost studies he used.

Brief review of Maryland and Duke/North Carolina studies, below.

sincerely, Dudley Sharp

Some observations on the Urban Institute (UI) Cost of the Death Penalty in Maryland (1) as well as on the Majority Report.

The UI conclusion was that the lifetime case cost for the 56 death penalty cases will cost Maryland taxpayers $186 million, or $106 million more than if death wasn't pursued in those cases or about $47,000 per year per inmate, more.

The study found that the average cost of a case where a death notice was not sought was $1.1 million/case, that being $250,000 for adjudication and $860,000 for confinement/prison costs.

Unfortunately, many more cases were used than just those which make up life without parole (LWOP). This, wrongly and totally, skewed the results.

That was inappropriate from a public policy standpoint and the majority should have known it.

The only public policy cost discussion regarding the death penalty, nationwide, is the cost differential between LWOP cases and death penalty cases. This is very well known, If anyone doesn't know it, it would take 10 minutes online to figure it out.

It begs the question, why did the UI muddy the waters with a bunch of cases that didn't get LWOP?

Regardless of UI's reasons, the answer is, they shouldn't have.

Here's why.

1) The public policy debate is concentrated on LWOP as a considered replacement for the death penalty. Sentences less than LWOP are not under consideration in this current debate.

2) By including cases of less than LWOP, within the non death category, UI and the majority has lowered the costs of that category, perhaps substantially, and has misled or confused the public as to the real cost disparities, if any, which may exist between the death penalty and LWOP in Maryland.

3) Had UI only included LWOP cases in that category, the cost disparity would be reduced, perhaps substantially.

Using current data, scenarios exist that could result in a finding that the death penalty may actually be less expensive than LWOP. See below.

Mr. Whitehead needs to fact check
written by Dudley Sharp, February 24, 2009

What wasn't calculated

4) a) Each case, whereby a plea bargain to a sanction less than death was rendered, the state saves about $250, 000/case for legal expenses, based upon UI estimates.

b) The number is, likely, far above that $250,000/case evaluation, because 1) UI wrongly included non LWOP cases and 2) wrongly credited the cost reduction of those pleas, within the LWOP category, when, instead, 3) a credit of $250,000/case, but likely much larger, should have been placed in the death case data calculations, resulting in an additional increase per case cost within the true LWOP category and a greater reduction in the death case category.

Properly, this credit can happen only when LWOP plea cases are isolated. This is public policy 101. The majority wrongly discounted plea bargains to a life sentence. The cost savings are substantial.

5) For example:

a) Presume the average LWOP case, resulting in LWOP, has adjudication costs of $500, 000, from pre trial to conviction and throughout appeals. If a LWOP sentence was given as part of a plea bargain, prior to a death notice being filed, UI shows that cost as $0 for adjudication, thus lowering the average cost of all cases where death wasn't pursued in potentially capital cases.

That would be improper, from any standpoint.

b) A LWOP plea bargain can only occur because the state has the death penalty. So, instead of lowering the average cost of all LWOP cases, all LWOP plea cases would be removed from the LWOP database and a cost credit of $500,000 would be applied as a cost benefit within death penalty category, because it was solely the presence of the death penalty which allows for a plea bargain to LWOP. Thus, death penalty costs and overall costs to the state, would drop substantially and the average costs of LWOP would rise.

c) That results in two changes:
1) The average cost of LWOP cases will rise, possibly substantially, because a $0 adjudication cost entry will be removed from the LWOP cases; and
2) The average cost of death penalty cases may lower, possibly substantially, because a $500, 000 cost reduction will be made to the death penalty cost basis, for each such LWOP plea.

To state the obvious, UI made an error in reversing the credit in pleas.

6) For an accurate public policy review of death penalty costs vs LWOP costs, Maryland Legislators should:

a) Compare the costs of only the death penalty cases which were pursued and a death penalty resulted and only LWOP cases that were pursued, resulting in a LWOP sentence; and

b) include the proper calculations for credit of LWOP pleas bargains, which are solely the result of the presence of the death penalty.

c) Why exclude the death penalty cases which were pursued, resulting in sentences less than the death penalty? For the same reason we exclude LWOP cases which result in sentences of less than LWOP.

You should be looking , only, at true death cases costs vs true LWOP costs. If UI wants to add a bunch of other cost categories, fine, but these are the two that must be done.

They weren't.

COST SAVINGS - Death Row incarceration

1) The extra $350,000 per case for additional cost for death row incarceration is an unnecessary waste of taxpayer money. Missouri doesn't even have a death row for their death sentenced prisoners.

2) There is no reason that death penalty appeals should take longer than 7-10 years.
a) Both appellate paths, direct appeal and writ, should travel through the appellate process, at the same time.
b) The legislature, trial and appellate courts should work together to establish reasonable time frames for appeals and responses to them.

GERIATRIC CARE - Prisoner geriatric care has recently been found to be about $70,000/inmate/year, on average. Has that been calculated in Maryland?


Maryland must redo their calculations to compare costs of true LWOP cases to death penalty cases, for two reasons.

First, it is the only public policy cost issue which exists, with regard to the death penalty in Maryland

Secondly, what you have, now, cannot be relied upon.

Mr. Whitehead needs to fact check
written by Dudley Sharp, February 24, 2009

UI: Additional Errors in Judgement

UI's reliance on Donahue and Wolfers (2006), who have been highly critical of some of the recent studies finding for deterrence, was unwarranted and inappropriate.

UI's authors failed to note that Donahue and Wolfers criticisms have been dissected and trashed by those authors whose studies found for deterrence.

I believe all of those replies, heavily critical of Donahue and Wolfers, were published prior to the UI report.
Furthermore, UI failed to mention that Donahue and Wolfers' work was not peer reviewed, but many and most of the studies finding for deterrence were. Had Donahue and Wolfers work been peer reviewed, it is a question if it ever would have been published in a peer reviewed publication.

Both of these points are important and inexcusable omissions by UI.
Instead of mentioning the rebuttals, UI, instead, deferred to Donahue and Wolfers, as a way of neutralizing the importance of the studies finding for deterrence, and then mentioned a study which found against deterrence.

UI wrongly states that studies go either way so we shouldn't bother with them.

Total nonsense. 16 recent studies, including strong rebuttals to criticism, find for death penalty deterrence.

In one reply to Donahue and Wolfers, after their data had been re-run, based upon Donahue and Wolfers criticism:

"I oppose the death penalty. " " But my results show that the death penalty (deters) — what am I going to do, hide them?" "Science does really draw a conclusion. It did. There is no question about it." "The results are robust, they don't really go away" "The conclusion is there is a deterrent effect.".

Prof. Naci Mocan, Economics Chairman, University of Colorado at Denver
"Studies say death penalty deters crime", ROBERT TANNER, Associated Press, June 10, 2007, 2:01 PM ET

Furthermore, one of the deterrence studies found a $70 million cost benefit, per execution, because of the number of lives saved per execution.

Obviously, that would render the death penalty a huge cost benefit in Maryland.

Many other important conclusions of the deterrence studies were omitted from the UI report. If UI didn't wish to give a proper, accurate review of deterrence, stay away from it. Why wrongly muddy the waters?

Public policy makers take note.

Misleading Conclusion

The UI authors stated that:

"Prior research on the costs of capital punishment in other states unambiguously finds that capital cases are more expensive to prosecute than non-capital cases. "

To "prosecute", generally yes, but not always.

And when did the studies ONLY look at prosecution?

In one of UI's included studies, Cook, North Carolina Cost Study (1993), the UI authors seemed to have missed a very important and obvious point.

The study finds that, for two different calculations, that the death penalty costs $163, 000 and $213,000/case more than a life sentence.

But, the calculation for a life sentence is only to 20 years.

For a true life sentence, you would be adding $300, 000 or more to each life case, meaning that a life sentence costs more than the death penalty.

Furthermore, the authors conceded not including geriatric care, recently found to be $69, 000/inmate/yr. meaning lifers cost a lot more than death sentenced prisoners, possibly adding an additional $300,000/case, or more, for a true LWOP sentence.

That could render life cases $600, ooo or more, more expensive than death sentences in North Carolina.

Furthermore, the calculations didn't include the benefit of plea bargains to life, possible only because of the death penalty.

Unambiguous, UI? Not close.

Based upon the UI authors not seeing these very obvious and important facts, or deciding not to share them within their report, one may conclude that UI authors may have made similar errors or omissions in their review of the other included studies.

Reviewers should keep that in mind.


UI, a public policy institution, avoided the only public policy issue which exists in the death penalty cost debate:

"What is the difference in cost between the death penalty and a true LWOP?"

Depending upon the number of plea bargains to LWOP, there may be very little cost difference between the death penalty and LWOP.

Furthermore, if both the presence of the death penalty, as well as executions, saves many innocent lives, as 16 of the recent deterrence studies(1) suggest, then the benefit of the death penalty far surpasses any alleged cost deficit, if any, or is a huge added benefit to any cost benefit of the death penalty, if there is one.

Dudley Sharp, Justice Matters


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