STUDY ON MARYLAND
DEATH PENALTY COSTS IS FLAWED, MISLEADING
A study on Maryland
death penalty costs released last week has serious flaws and paints a
misleading picture, according to the Sacramento, California-based Criminal
Justice Legal Foundation. The Foundation notes there are three major
deficiencies apparent on the face of the Urban Institute’s report:
First, the study fails to consider the savings that result
when a case is plea-bargained to life in prison, a bargain few murderers
would agree to in the absence of the death penalty.
Second, the study intentionally ignores the savings that
result from the deterrent effect of the death penalty, asserting without
justification that one article criticizing the numerous deterrence studies is “conclusive.”
Third, the study assumes that the long delays and high
reversal rates that have characterized Maryland’s
death penalty in the past will continue indefinitely, ignoring the potential
savings from reform of the review process.
The study was released last Thursday, March 6, by the Urban Institute, based
in Washington, D.C.
Although the Urban Institute (UI) refers to itself as
“nonpartisan,” the release of the study appears to have been
timed to coincide with a key committee hearing in the Maryland Senate,
allowing its conclusions to be used by opponents of the death penalty without
giving supporters time to subject the study to scrutiny.
Plea Bargaining
If the death penalty is going to be examined in purely economic terms, both
the cost of cases that go to a death penalty hearing and the effect on cases
that do not must be considered. The study included 509 cases that were
legally eligible for the death penalty: 425 where the prosecution did not seek
the death penalty, 55 where it was sought but not imposed, and 29 where a
death sentence was imposed. The cases where the death penalty was not
sought had a much lower cost on average for trials and appeals, but 173 of
those cases, 40%, were guilty pleas.
In a state which has a death penalty, some murder defendants will plead
guilty and accept a life sentence to avoid the possibility of a death
sentence. If a state has no death penalty, there is no such incentive,
and relatively few defendants will plead guilty if life in prison will be the
result. The UI study fails to account for the lower trial and appeal
costs of the plea-bargained cases as an offset to the higher cost of those
cases that are prosecuted as capital.
Deterrence
Although debate about the deterrent effect of capital punishment continues, a
strong preponderance of studies published in peer-reviewed journals in recent
years finds the death penalty does have a deterrent effect where it is
actually enforced. Abstracts and citations for the literature are
collected on CJLF’s website at http://www.cjlf.org/deathpenalty/DPDeterrence.htm.
Estimates run from 5 to 18 lives saved per completed execution. Even
considering this as an economic issue and considering only direct costs to
the justice system, the savings from having fewer homicides would still be
substantial. If no homicide occurs, the cost of trial, appeal, and
incarceration is zero.
The UI study excluded any consideration of the deterrent effect and the
savings resulting from deterrence by citing an article critical of the
deterrence studies, an article not published in a peer-reviewed
journal, and declaring that one to be “perhaps the most
conclusive.” The UI study fails to mention the multiple rebuttals
to that article by the authors of the original studies. It also gives no justification whatever for declaring this
article “conclusive” in preference to the large body of
literature pointing the other direction. The absence of any
justification supports the suspicion that UI simply chose the article that
supports its preferred result.
Future versus Past
To date, Maryland has not had
an effective death penalty. The appeals process has taken too long and
resulted in too many reversals. Many of the costs factored into
UI’s estimates are not inherent costs of the death penalty but rather
costs of its obstruction.
The higher cost of trials in capital cases includes not only the original
trial but also retrials after reversals. Obviously there would be fewer
retrials if there were fewer reversals.
Maryland has suffered from many
erroneous reversals of correctly tried capital cases. In the 1987 case
of Booth v. Maryland, the Supreme Court declared Maryland’s
pioneering law on victim impact statements to be unconstitutional in capital
cases. Four years later, the Supreme Court recognized its own error and
overruled Booth in Payne v. Tennessee, but
the damage was already done, and cases with victim impact evidence had been
wrongly reversed. In the 1988 case of Mills v. Maryland,
the Supreme Court changed the rules on instructing juries and threw out an
instruction that had been drafted by a committee of the bar and approved by
the Court of Appeals. The Court of Appeals then applied that decision
retroactively to throw out the sentence in every case where the instruction
had been used. The Supreme Court has since held that retroactive
application was error, but again the damage had already been done.
The law of capital punishment has stabilized since then, and a recent study
funded by the National Institute of Justice shows that reversal rates are
dropping nationwide. By placing limits on the number of appeals an
inmate can file on issues have nothing to do with actual
guilt or innocence, as a very large portion of capital litigation does not,
the state could shorten the review process substantially. Congress has
already authorized streamlined federal appeals for states that provide
competent counsel on the state collateral review, as Maryland already does.
Finally, the largest single cost noted in the study is the cost of
incarceration. Maryland has high death row costs because the judgments
take so long to carry out. The high cost of incarcerating
prisoners on death row would be reduced dramatically if executions were
carried out in most cases in five or six years from the time of
sentence. Review in this time frame is achievable and has been done in
Virginia. If Maryland did the same, the incarceration costs would drop dramatically.
In short, the cost of appeals, the cost of retrials, and the cost of
incarceration can all be reduced substantially. The UI study makes no
allowance for such savings.
Conclusion
The tone of the study, the factors it chose to ignore, and the timing of its
release all point to the conclusion that it was designed to support a
predetermined agenda. Whether the death penalty, done right, would cost
more than abolishing it remains undetermined. Certainly inflated
estimates of relative cost stated in agenda-driven studies should not be
relied on by any legislature. Aside from the cost issue, though, there
are considerations of justice that defy economic measure. It would have
been a grotesque miscarriage of justice if Steven Oken had been let off with
life in prison for his multiple, sadistic crimes. The lives that can be
saved through deterrence by an effective death penalty are not measurable in
dollars.
The effort to repeal Maryland’s death penalty has apparently died again
for this legislative session. It should stay dead. The Maryland General
Assembly should turn its attention to fixing the review process to make the
penalty effective. To borrow a phrase from a few years back,
“mend it, don’t end it.”
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