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"The death penalty is a joke."


So says murderer Douglas Stankewitz, who's been on death row for 34 years, thanks to repeated delays caused by collateral appeals. (He had carjacked 22-year-old newlywed Theresa Graybeal at a Kmart parking lot in Modesto, drove her around, and then shot her in the head as he stopped the car to buy heroin.) The California death penalty is on the ballot as Prop 34; proponents are, with impressive chutzpah, now using the cost of defending against these appeals as an argument for abolition rather than as an argument for replacing the judges who abuse the law. Nevertheless, polls show that voters disapprove of the measure to abolish capital punishment by 13 points. [Reuters via The Transom]

The Reuters story repeats many of the same statistics I previously discussed here from an AP story. What it doesn't mention is that the arguments about "increased cost" are entirely bogus. The litigation costs from life without parole will not be any cheaper than the litigation costs from the death penalty. As I've argued here before:

[The] cost argument just simply [isn't] true. If the death penalty disappeared tomorrow, the hundreds of lawyers who fight the death penalty wouldn't rest on their laurels. They'd simply shift their focus to other attacks on the use of criminal justice to punish criminals. Governments would still be spending the same millions of dollars defending against collateral attacks on convictions; they'd just be spending it on a different set of convicted criminals. Any monetary savings from abolishing capital punishment would be illusory.

This prediction has been borne out by recent successful challenges to life without parole such as Miller v. Alabama and Graham v. Florida.


There has been a war between the California judiciary and the Ninth Circuit over the death penalty in California. There are those in Ninth Circuit who would like to outright ban the death penalty in the Golden State. I know this must come as a surprise to everyone who watches the Ninth! The California Supremes are of a different notion.

Ever since Furman v. Georgia and Gregg v. Georgia, a long appellate process has been baked into the cake on death penalty cases. The state supreme court is even mandated to get involved in the process.

So, SCOTUS basically said, "Yes, the death penalty is constitutional, and you can have it. But the appellate process will be so onerous, no one will want it except diehard ideologues and stupid people." Paraphrasing, of course.

It is sort of reminiscent of Justice Roberts, "Yes. The healthcare mandate is a tax. And yes the law is stupid. Oh, by the way, coercing the states to expand Medicaid as a backdoor path to a single payer is unconstitutional. So yes. You can have your dopey law, but only in a fatally crippled way." Paraphrasing, of course.

However, assuming that sentencing someone to life without parole, or a "hard 40" or any variant thereof will be without a long appellate process is delusional. So it boils down to about the same thing.

Being sentenced to death is about as good a guaranty one can have of reaching a ripe old age, albeit one spent on death row.

It is difficult to envision much deterrence in cases where the convict is executed 20 or 30 years after the fact.

If you think that the cost is the same think again.....

(1) Longer and far more costly trials. There’s a second trial, on what the penalty should be, life without parole versus death, that is commonly as long as or longer than the original trial. It costs a lot of money to pay lawyers to prepare for trials like this, and it costs money to run a courtroom where the trial takes place—for example, the salary of the judge, the bailiff, court reporter, courthouse security, lawyers for both sides, investigators and expert witnesses on things like was the defendant brain-damaged, and the effect of having been abused as a child, etc. In an ordinary trial, a defendant with no money (which is nearly all criminal defendants) gets only one lawyer; in death cases, he gets two. Jury selection is longer, and the cases are more complicated and hard-fought. All this means it probably costs 10 to 20 times more to do a capital trial than a normal murder trial.
(2) In about half of these trials, the jury decides on life anyway. After hearing all the evidence, the jury decides that a sentence of life without the possibility of parole is a harsh enough punishment about 50% of the time, so – in effect – taxpayers are paying all of these longer-trial costs at least twice for each conviction. And meaning that in half the cases, after all this expense, murderers are being punished by precisely the harsh punishment they would get under Proposition 34 without all these costs.
(3) The cost of appeals in also staggering—again, lawyers for both sides, the appellate courts, investigators and expert witnesses in habeas proceedings considering whether there was evidence the jury should have heard on whether the defendant was really guilty, or whether life or death is the right punishment. These go on for many years in both state and federal court, occupying the courts and attorneys.

(4) Cost of re-trials. Though the California Supreme Court has been very pro-death in recent decades, the federal courts – including many Republican-appointed judges – have overturned most of the death verdicts. Meaning all of the above costs have been for nothing, and there’s the cost of doing it all over again when the cases are re-tried.
(5) Cost of death penalty housing. This involves special facilities with greater security, more guards, etc., making it about three times more costly to keep someone on death row than on a regular prison yard. Since condemned inmates are on death row for many, many years before they are executed or die of natural causes, it’s likely costlier than to just keep them in regular cells to start with.

WHAT DOES ALL THIS COME TO? The Legislative Analyst estimates getting rid of the death penalty system would save California $130 Million a year! We could use that money to make us safer! A study by Senior Federal Court of Appeal Judge Alarcon estimates that California has spent more than $4 Billion on the death penalty since 1978—which comes to more than $300 Million per execution. We just can’t afford the death penalty, even leaving aside things like the risk of executing innocent people.


Of course CA can't afford the death penalty... The way they implement it. If the CA justice system were responsible for all meat products in the state California would be completely vegetarian because of the legal wrangling a protecting the life of cows, pigs, etc. California couldn't afford a single hamburger if it were left to the courts.

A bullet costs less than a dollar and is much more humane than putting someone in a cage for life. But why cage, right? Why not let serial killers roam the streets among the gutless Californians?

CA can't afford it's idealism and opportunists. I hope no state follows it's example.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.