The final report on the administration of the death penalty in California was issued by the California Commission on the Fair Administration of Justice on July 1. As executive director of the commission, I served as principal draftsman for the report. After conducting three public hearings, calling 72 witnesses, and reading nearly everything published about California's death penalty law for the past 30 years, the most formidable task the commission faced was measuring the cost of California's death penalty law.
The reason the task was formidable was because the data needed was not being collected, and our efforts to gather the information were stymied by California prosecutors. The commission retained Rand Corporation to undertake a major study of the costs, but Rand reported back that they were unable to enlist the cooperation of participating agencies, who were "wary of the kind of independent study we have proposed, for fear that it could end up swaying opinion in a direction contrary to their own convictions." A similar wariness was reported by three law professors at Pepperdine University, who were asked to survey how California prosecutors made the decision to seek the death penalty in individual cases. They received responses from only 15 of California's 58 counties, which our report called "a distressing picture of the willingness of those who tinker with the machinery of the death penalty to expose their decision-making process to the electorate."
Among the principal recommendations made by the commission (and opposed by the prosecutors who served on the commission) was the initiation of a mandatory reporting system to collect and analyze all the data needed "to determine the extent to which the race of the defendant, the race of the victim, geographic location, and other factors affect decisions to implement the death penalty, to accurately determine the costs, and to track the progress of potential death penalty cases." Providing the public with reliable information about how the death penalty is being administered should not depend upon the discretion of those who are charged with its administration.
Meanwhile, however, the commission was reporting to the California electorate that our death penalty law is dysfunctional, largely because it is underfunded. The principal message of our report was to be, "If we want a death penalty law as broad as California's, we are going to have to pay for it." To deliver that message without assessing how much we would have to pay for it would have been irresponsible. Thus, we were compelled to rely upon very rough, and very conservative, estimates of the system's costs.
We focused on the costs that were added to the processing of a homicide case by making it a death penalty case, as compared to a case in which a sentence of life imprisonment would be the result of a conviction.
Gerald Uelmen is Professor of Law and Director of the Heafey Center for Trial and Appellate Advocacy at Santa Clara Law. From 2005 to 2008, Uelmen served as executive director of the California Commission on the Fair Administration of Justice. All of the reports of the Commission are available online at www.ccfaj.org.
Because the death penalty is being sought, the prosecution and defense must actually prepare for two trials, one to determine guilt, the other to determine the sentence. The defense must conduct an exhaustive investigation of the defendant's past to locate any mitigating evidence that might persuade a jury to choose a life sentence rather than death. Because the jury must be "death-qualified," excusing those with fixed opinions for or against the death penalty, intensive individualized voir dire questioning of potential jurors must be conducted. We concluded that these elements added approximately $500,000 to the cost of a homicide trial. But we didn't even know how many homicide trials in which the death penalty was sought were being conducted each year in California. We did know that we are currently adding about 20 inmates a year to our death row population, and were informed that in approximately half of the cases where a death penalty is sought, the jury rejects death in favor of a life sentence. Thus, trying 40 cases a year as death cases added $20 million per year to the costs that California counties had to pay.
Once a death verdict is returned, a direct appeal to the California Supreme Court ensues, as well as federal habeas corpus petitions in both state and federal courts. The habeas corpus review is an essential component to assure that the defendant received adequate assistance of counsel in the trial court. Federal courts reviewing California death judgments have thrown out 70 perent of the cases they have heard, most often on grounds of ineffective assistance of counsel. The agencies handling the post-verdict proceedings are state agencies, which keep more accurate budget records than the individual counties. Thus, we were able to ascertain that the appeals and habeas proceedings added $54.4 million to the costs of death cases.
Surprisingly, the most dramatic cost added to death penalty cases is the cost of confining the defendant on death row for the 20 to 24 years it will take to resolve the case. We learned that for each inmate, it costs $92,000 more per year to keep them on death row than it would cost to keep them in a maximum security prison with other inmates sentenced to life imprisonment. That adds $63.3 million per year to the cost of California's death penalty law.
The bottom line: a conservative estimate of the current cost of our death penalty law in California is $137.7 million per year. The cost of implementing the commission's recommendations to reduce delays in California from 20-24 years to the national average of 12-14 years will be another $95 million on top of that, to total $232.7 million. The commission also assessed what it would cost if we narrowed our death penalty law to five special circumstances instead of 21 ($130 million) and what it would cost if we abandoned the death penalty and replaced it with a maximum penalty of lifetime incarceration ($11.5 million).
While cost is only one factor to be considered in evaluating our future course, at some point California voters will have to determine whether the benefits of having a death penalty law outweigh its costs. Under our present dysfunctional system, the benefits are few. There have been only 13 executions in 30 years, and on death row, the leading cause of death is natural causes. A sentence of death in California is, for most defendants, a sentence of life imprisonment at four times the cost.