There are two publications comprising the full study performed by Professor Liebman (Columbia University) and colleagues. The first publication, which demonstrated Arizona’s overall serious error rate of 79%, may be cited as James S. Liebman, et.al, A Broken System: Error Rates in Capital Cases, 1973-1995 (2000). The full report can be viewed at the Columbia Law School Website. Arizona’s statistics can be viewed in Appendix A, Arizona Capital Punishment Report Card.

The second publication, which demonstrated that Pima County leads the nation in imposition of death sentences, may be cited as James S. Liebman, et.al, A Broken System Part II: Why There Is So Much Error in Capital Cases and What Can Be Done About It (2002). The full report is published at http://justice.policy.net/cjreform/dpstudy/. From there, you can click on Appendix A, which lists Arizona’s statistics.

The Cost Effect

Katherine Baicker w/ Dartmouth College conducted a study of where the funds come from to maintain the death penalty as a sentencing option within a state. The report called 'The Budgetary Repercussions of Capital Convictions,' illustrates that funds are allocated from other areas of state budgets to fund costly maintenance of appeals, executions, etc. The first areas of state budgets that are most impacted by this are law enforcement agencies, fire service and education.

Introduction to the Cost Factor in Arizona’s Death Penalty

“The Arizona Supreme Court recently remanded a death penalty case for re-sentencing to a county that does not have the resources to pay for it. By law, counties are required to fund a specialist to gather mitigating evidence for the defense to use at the sentencing phase. Some jurisdictions, however, do not have the money to pay for pre-sentencing investigation. The situation puts smaller counties in the position of choosing to pursue capital sentencing based on cost. This would make the application of the death penalty in Arizona arbitrary because those who commit capital crimes in the state's larger counties (Pima and Maricopa) will more likely be subject to the death penalty simply because of resources. 'If you live in Pima or Maricopa county you're going to get one form of treatment, while anywhere else you're going to get a different form of treatment,' said Sen. Elaine Richardson, who earlier this year sponsored a bill to deal with the issue by siphoning state financial support for capital cases. The bill passed the Senate but failed in the House.”

(Arizona Capitol Times, 5/29/01)

“Death is Different”

Selected from a memorandum sent from James J. Hass (Maricopa County Public Defender) to Sandi Wilson (County Administrator) and Christopher Bradley (Budget Manager) on October 3, 2002.

The Finality of the penalty makes capital cases different than any other type of case. The defense attorney’s actions in a case that results in a death sentence will be scrutinized in excruciating detail by attorneys handling the post-conviction and federal habeas corpus stages. These attorneys are searching for any error, no matter how small, in the attempt to save the client’s life. And they are amazingly successful.

A recent national study of 4,578 capital appeals over a 23-year period found that 68% of the death sentences were reversed because of serious error. In Arizona, a study by the Attorney General’s Capital Case Commission found that over half of all Arizona death sentences were overturned. There are several reasons that these sentences were ruled invalid, but a substantial number were overturned because of the ineffective assistance of the defense council. This ineffectiveness was not generally a reflection of the abilities of counsel, but rather was attributed to a lack of resources available to the defense.

When a death sentence is overturned, and the case remanded for a new trial, the financial impact to the criminal justice system is almost incalculable. For the defense attorney who is found ineffective, the result may include disciplinary proceedings by the State Bar, and potential loss of the ability to practice law.

In short, the defense of a death penalty case requires that the attorney explore every conceivable avenue of relief for the client. Every investigation lead must be tracked down, every motion must be filed and litigated, and every piece of information that may save the client’s life must be developed. And this applies not only to the investigation into the question of guilt, but also the issue of the appropriateness of the death penalty. Experts generally agree that the defense of a capital case at the trial stage takes 800 to 1000 hours of attorney time.

Arizona Death Penalty Prosecution (“Ring Fixer” Impact)

“…this legislation will have a tremendous fiscal impact on counties for cases that will have to be re-considered for sentencing. In Maricopa County, $1.3 million is the estimated cost of handling the 11 cases that have already been sentenced. He said this does not include the 56 capital cases going to trial.”

– Maricopa County Attorney, Richard Romley, in response to Representative Sedillo’s question of the fiscal impact of H.B. 2001 during the Forty-fifth Legislature, Fifth Special Session. http://www.azleg.state.az.us/legtext/45leg/5s/comm_min/house/0731jud.doc.htm

On October 3, 2002 an Emergency Budget Request was sent from the office of James J. Hass (Maricopa County Public Defender) to Sandi Wilson (County Administrator) and Christopher Bradley (Budget Manager.) The request outlined the financial impact that the legislation (noted the “Ring Fixer” bill) had on the office of the County Defender. Attached to the request was the below introduction to the request of funds:

“ In Ring v. Arizona, the United State Supreme Court ruled Arizona’s death penalty statute unconstitutional, on the ground that the Arizona method of sentencing by a judge instead of a jury violated the Sixth Amendment right to a jury trial.

As a result of Ring, the Arizona legislature enacted a new death penalty statute providing for a jury sentencing in death penalty cases. This statute was enacted with an emergency clause, making it effective immediately. As a result of this new law, jury trials on aggravating and mitigating factors and sentencing will begin immediately after the jury finds the defendant guilty of murder in the first degree.

This is a radical change from the way death penalty cases have been litigated in Arizona, and is an especially drastic change in the way cases must be prepared and presented by the defense. Prior to Ring, the defense could concentrate its efforts on the guilt phase trial preparation and limit its mitigation time and expenditures to gathering information, until there was a guilty verdict to a death qualified offense. If the jury acquitted the defendant or the case was dismissed prior to trial, the defense was not required to present any mitigation evidence at all. When the jury found the defendant guilty of a lesser offense or the state withdrew its request for the death penalty, the defense need to prepare and present mitigation evidence was greatly reduced, and often eliminated.

Under the new death penalty statute, the defense cannot wait for the verdict before devoting substantial resources to the preparation of mitigation. The jury that hears the guilt phase of the trial will remain impaneled to immediately hear the aggravation, mitigation and sentencing phase of the trial. The defense must therefore be completely prepared with its mitigation evidence when the guilt phase of the trial begins. This is a drastic change, and a very costly one.”

Death Penalty vs. Natural Life (LWOP) in the US

“Executions are carried out at staggering cost to taxpayers: It costs more to execute a person than to keep him or her in prison for life. A 1993 California study argues that each death penalty case costs at least $1.25 million more than a regular murder case and a sentence of life without possibility of parole.” – Death Penalty Focus of California[1]

A recent review conducted by the New York Law Journal found that the 1995 reinstatement of New York's death penalty has cost the state millions in taxpayer dollars and has consumed an immense amount of time of judges, prosecutors, and defense attorneys. The Journal's findings include:

New York's Division of Criminal Justice Services has reimbursed more than $5 million to counties that have prosecuted capital cases.

The state spends $1.2 million annually to fund the New York Prosecutors Training Institute that provides lawyers to assist district attorneys on capital cases.

The Brooklyn District Attorney's office was reimbursed $707,259 to cover the personnel cost of one case, the prosecution of Darrel K. Harris. This total does not reflect non-personnel expenses, including expert fees and the work of Jonathan L. Frank, who served as the lead appellate attorney for the prosecution. Frank estimates that he donated more than 600 hours of time to the case.

During the preparation of its 1,181-page brief for the Harris case, the Brooklyn District Attorney's office was assisted by prosecutors in 8 other counties.

The defense team for Harris spent approximately $1.7 million to mount his defense, and the state's Capital Defender Office invested $1.2 million into producing the team's 779-page brief.

The budget for the New York Court of Appeals has increased by more than $533,000 annually to enable each of the Court's 7 judges to have an additional clerk for capital cases.While a non-capital murder requires no more than two prosecutors, death penalty cases require at least three or four. The Queens District Attorney's Office estimates that seeking the death penalty translates into 300% to 500% more work than for a non-capital murder trial.

In addition to the funds required to try death penalty cases, the State Department of Correctional Services spent $1.3 million to construct New York's death row for 12 inmates and it pays nearly $300,000 per year to guard the unit. (New York Law Journal, April 30, 2002).

Death Penalty Focus of California: Cost Study

Capital punishment in California, as in every other state, is more expensive than a life imprisonment sentence without the opportunity of parole. These costs are not the result of frivolous appeals but rather the result of Constitutionally mandated safeguards that can be summarized as follows:

Juries must be given clear guidelines on sentencing, which result in explicit provisions for what constitutes aggravating and mitigating circumstances.

Defendants must have a dual trial--one to establish guilt or innocence and if guilty a second trial to determine whether or not they would get the death penalty. Defendants sentenced to death are granted oversight protection in an automatic appeal to the state supreme court.

These constitutional safeguards translate into:

• -- a more extensive jury selection procedure
• -- a four fold increase in the number of motions filed
• -- a longer, dual trial process more investigators and expert testimony
• -- more lawyers specializing in death penalty litigation
• -- and automatic, mandatory appeals

Since there are few defendants who will plead guilty to a capital charge, virtually every death penalty trial becomes a jury trial with all of the above necessary requirements and expenses.

David Erickson's study of Los Angeles County breaks down the cost of a capital trial and compares it with the costs of a murder trial where the death penalty is not sought. The following schedule is a summary of Erickson's cost study of a death penalty trial in Los Angeles County only.

This table does not take into consideration the cost of incarceration which, for a death row defendant, would average $189,603. The incarceration of an inmate sentenced to life imprisonment generally costs about $821,613. In Los Angeles County, the total cost of capital punishment is $2,087,926. In Los Angeles County, the total cost of life imprisonment without possibility of parole is $1,448,935.

General Studies A study done by the Sacramento Bee argued that California would save $90 million per year if it were to abolish the death penalty. The average cost of a capital trial in Texas is $2.3 million--three times the cost to incarcerate an individual for 40 years. The average cost of a capital trial in Florida is $3.2 million.

[1] Death Penalty Focus of California - 74 New Montgomery Street, Suite 250 - San Francisco, Calif. 94105-3411 - Voice: 415.243.0143 - Fax: 415.243.0994