Chapter 11 Outline

The cost of a capital case from arrest to execution exceeds the cost of pursuing a LWOP sentence, even if the inmate spends 50 years in prison
The costs of pursuing the death penalty rather than LWOP is many times greater, takes much more time, and prolongs the suffering of the families of victims looking to execution to bring them closure
Super due process has resulted in many obstacles and loopholes for defendants, rendering the death penalty in the United States an inordinately expensive “super farce.”

McVeigh detonated a massive bomb that destroyed a federal building in Oklahoma City, killing 168 people and injuring 680 others
He never denied his guilt, but wanted a trial so his attorneys could present a “necessity defense,” which gave him a platform to air his complaints against the federal government, mainly the federal actions at Ruby Ridge, Idaho and Waco, Texas
He was convicted of 11 counts of murder and sentenced to death; he was executed four years after being sentenced
McVeigh’s trial cost U.S. taxpayers $13.8 million
The Antiterrorism and Effective Death Penalty Act (AEDPA) was enacted to make the death penalty more rapid, efficient, and cost less

The estimated cost per execution in 2014 dollars was $5.08 million in Texas and $11.05 million in California. Much of the cost difference between these two states is due to the speedier and more efficient processing of death penalty cases in Texas

According to the Death Penalty Information Center (DPIC), the overall cost of the death penalty in California has been over $4 billion since 1978
Federal district court judge, Cormac Carney, vacated the death sentences of 748 California death row inmates. Judge Carney noted that of the 900 people who have been sentenced to death in California since the reinstitution of the death penalty in 1976, only 13 people (or 1.4%) have actually been executed; the last was in 2006.
Carney asserted that systemic delay in executing those on death row creates an uncertainty that constitutes cruel and unusual punishment
The oldest person executed (after 19 years on death row) since the death penalty was reinstated in 1976 was John Nixon, executed in Mississippi in 2005 at the age of 77
According to Alarcon and Mitchell, “…Californians will spend an additional $5 billion to $7 billion over the cost of LWOP to fund the broken system between now and 2050.”
The DPIC cites a 2011 California study stating if the sentences of all prisoners on California’s death rows were commuted to life without parole there would be a savings of $130 million per year
The ACLU reports that there was a $1.1 million difference between the least expensive death penalty prosecution and trial (People v. Saurez) which cost $1.8 million, and most expensive non-death penalty murder prosecution and trial (People v. Franklin), which cost $661 thousand

The number of court days is one of the biggest differences in costs of a death penalty trial over a LWOP trial
For death penalty cases, it is estimated that pretrial hearings take an average of 85.2 days of court time versus 14 days for an LWOP trial
Voir dire process: The process of jury selection
Since both sides are looking for a jury to favor their side, it takes a long time to select jury members. The average number of days required to pick a jury in a capital case is 26 versus 1.5 in a LWOP case
The average time for a death penalty trial is 19 days versus 8.2 for a LWOP trial, and for the sentencing phase it is 21 days in a capital case and 0.78 days in a LWOP case. Adding all of these stages together, the estimated average number of court days taken by a death penalty trial is 147.6 days (that’s nearly 5 months) versus 24.48 days for an average LWOP trial

Expert witnesses often command fees many times greater than they could command under market principles
Brian Richard’s federal trial in 2012 highlights the high cost spent on expert witnesses. Richards would have pleaded guilty for a life sentence; however, $3.5 million was spent on mental health experts who did not testify, private attorneys, as well as travel fees and expenses for his capital case

Habeas Corpus: A civil legal proceeding that challenges the legality of a person’s confinement, also known as “The Great Writ”
A habeas corpus petition and a direct appeal are different
Direct appeal: Almost always limited to issues already addressed in the criminal trial; the defense is asking the appeals court to review legal procedures and decisions made prior to the judgment of guilt
Habeas corpus is an indirect appeal challenging the legal grounds for holding a person in custody, the ineffectiveness of legal counsel, and may introduce new evidence and new arguments that may point toward their innocence
Habeas petitions filed in state court are often arguments pertaining to some fundamental legal error such as the manner in which the trial was conducted, the inclusion of evidence which the defense says should have been excluded, or the way the petitioner's defense was presented

A congressional act designed to speed up the process from sentence to execution by requiring consolidation of habeas appeals and imposing a one-year limit on filing
Prior to the AEDPA, death rows across the country were increasing and rapidly becoming deadlocked due to countless appeals

Since AEDPA’s passage, the average time from sentencing to execution has increased five years rather than decreased
The act is not retroactive so the hundreds of pre-AEDPA cases can still proceed as before (Horn v. Banks, 2002)
The act was not automatically applied to the states; they had to fulfill certain requirements in order to qualify
Since the act requires the financial burden shift from federal government to the states and provide competent attorneys (as defined by AEDPA) for defendants, no state has used the act to date
Attorneys who fit the stringent competence requirement are hard to find. They must have either represented defendants in at least seven felony appeals, including a murder appeal, or completed five appeals including two death penalty appeals. If they do meet the requirements, many opt to work in civil litigation which pays significantly more

One of the most common complaints of crime victims and their families is that they feel ignored by the criminal justice system
The sentiment most often expressed with the execution of the offender is closure, but does not mean the end of the pain that the victims’ family members suffer
Some of the reasons some family members oppose the death penalty are: The inmates don’t suffer enough when they are executed, they want to avoid prolonged contact with the criminal justice system, they hope the offender will someday feel remorse, or they are morally against it