The death penalty is ineffective and costs too much

What message will Ohio send if it seeks the death penalty for the four members of the Wagner family accused of murdering eight members of the Rhoden family in Pike County in 2016? That the death penalty is the only way justice can be served for such brutal killings? That executing the Wagners is a necessary deterrent? That Ohio is tough on crime?

The answer is all of above, but Ohio will also be demonstrating it prefers the charade of capital punishment over confronting the reality that it’s a profligate use of time and money.

To support capital punishment, you have to ignore the disconnect between meting out a death sentence and then waiting 20 years before the execution happens. You have to disregard the tremendous expense that comes with capital punishment. Worse yet, you have to be blind to the lunacy of repeatedly trying cases and obtaining convictions, only so that you can waste time and money in years pf post-trial proceedings.

We have 138 offenders on Ohio’s Death Row. Twenty-one have been there for at least 15 years, another 46 for at least 20 years, and another 21 for at least 30 years. If the Wagners are found guilty and given the death penalty, perhaps two years will pass before the Ohio Supreme Court issues a decision on their direct appeals to the court. Then another 15 to 20 years will pass as they pursue post-trial proceedings in federal court, where every inch of their cases will be reviewed for a variety of issues.

None of this comes cheap. Before Maryland abolished capital punishment, the average capital-eligible case resulting in a death sentence cost the state $1.9 million more than a murder case where the death penalty was not sought. It’s estimated New Jersey saves $2.6 million annually by having abolished capital punishment. Were North Carolina to follow suit, it would save approximately $10.8 million annually. The cost in Ohio? Good question.

The added expense comes with longer trials and all the resources—lawyers, judges, court staff, law enforcement personnel, correctional personnel—that go into the post-trial review proceedings.

Besides being costly, the U.S. Department of Justice finds there is no evidence capital punishment deters crime.

Why not curtail that post-trial procedure? Because doing so likely creates constitutional law problems, but more importantly, it raises the likelihood of executing the wrong people. I’ve met men who were wrongly convicted and lived on Ohio’s Death Row for years before being exonerated.

But still, we press on with the death penalty. Because executing murderers satisfies some dark within us need for revenge. Because politicians like to crow about being tough on crime, and nothing says toughness like an execution. Because murderers deserve death. Because you can’t put a price on justice.

But cost matters everywhere else in life. If capital punishment were judged on a cost-effective basis, it would serve as a case study in business schools for how not to run a company. Where are the conservative spending hawks when it comes to capital punishment?

Intelligent people perpetuate the myth that capital punishment serves a purpose, as if it won’t involve an inordinate amount of time and money. It’s akin to repeatedly hitting yourself on the head with a mallet and hoping it won’t hurt the next time.

If we repeal capital punishment, we can still adequately punish murderers and safeguard the community by making a life sentence without parole—as in, once in jail, you never leave—the ultimate sentence for all murders. After a murderer’s state court appeal is exhausted, he would no longer be part of our world.

There would be finality—all in about two years. The victim’s family would know with certainty the murderer will die in prison. And the state of Ohio would be saving millions of dollars.

So why do we keep hitting ourselves with that mallet?

[This post was published as an op-ed in the Columbus Dispatch on December 23, 2018.]

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Jack D’Aurora writes for Considerthisbyjd.com

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Also published on Medium.

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John Calhoun January 7, 2019

I gave up on the death penalty quite a few years ago. my biggest concern was executing the innocent by mistake. in your article you opine that administrative costs are a huge burden on society so as to make the death penalty non cost effective. This article states the obvious clap trap that the death penalty does not deter crime. I am not so sure. it puts some finality to the perpetrators criminal life.
With the advancement of technology as displayed by the Chinese in the Western Pacific, the building of man made islands has become more routine. Building island penal colonies seems to be an efficient and cost effective of isolating criminals convicted of capital offenses. let them live freely among themselves. patrol the waters around d the islands or even keep shark pens. Give the convicted felons seeds, tools, and some animals to sustain themselves. Periodically air drop milk and fresh water. the government will no longer have to execute anyone. the criminals will apply their own justice not always lethal. And if exculpatory evidence emerges, that person can be retrieved if still necessary. society will be protected. do this after last appeal is exhausted.
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- jdaurora@behallaw.com January 8, 2019
  
  I watched a movie some years back, starring Ray Liotta, that somewhat mirrors your idea. Criminals were banished to a tropical island, where they separated into two groups. One formed a primitive society that lived within a wooden fort, and the others reverted to a life of anarchy. If an offender within the primitive society turned to crime, he would be banished and thrown outside the walls, where he would have to face the lawless. I suspect there’s an Eighth Amendment problem with this type of arrangement.
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Brian Murphy January 8, 2019

Jack, I am sympathetic with your argument but I think it would be strengthened if you discussed the marginal cost of pursuing capital punishment relative to the total cost of life incarceration (and the legal challenges that would attend that sentence) rather than discussing the marginal cost of capital punishment in isolation. If the marginal cost of pursuing capital punishment cases – as a percent of the total cost of life incarceration + state legal challenges – is demonstrably substantial, that bolsters your case. If the additional cost of pursuing capital punishment cases amounts to only a small percentage of the total cost of life incarceration (say 5% or less), then we may be wasting money but the amount we waste may be relatively insignificant.
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- jdaurora@behallaw.com January 8, 2019
  
  Good point. Here’s the challenge: I know the approximate cost of incarceration in Ohio, as well as the average age at death for inmates serving a life sentence, but I don’t know what the cost in Ohio is–no one does–for the average capital case trial, the appeal and the post-trial proceedings. I’ve tried to ballpark the savings in prior blog posts and op-eds based on numbers from studies conducted in other states. What we need to do is study the issue, which other states have done to some extent
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jim pucci January 16, 2019

Jack, I agreed with you 100% up until your conclusion. I thought that perhaps you were going to conclude that we need a more effective implementation of capital punishment. Is that not an option? Can the executions be carried out more swiftly? Seems unfair to strap a system with so much red tape (healthcare) that it becomes ineffective and then say the idea is bad. Maybe the idea is fine and the implementation is bad.

I think (but haven’t researched myself) that data supports your assertion that capital punishment is not effective as a deterrent. Although I find hard to believe that if we cut off the hands of identity thieves that wouldn’t reduce the amount of identity theft. But capital punishment is also about justice for victims. There are a lot of people that feel the appropriate measure of justice for premeditated murder is death. I think that is the real issue. What is the right thing to do as a society? And if right costs too much then fix that problem.
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- jdaurora@behallaw.com January 17, 2019
  
  Can executions be carried out more swiftly? To do that, we would need a better way of handling the post-trial proceedings that take place, mostly in federal court. I suppose there might be a way to speed up the process. More judges, more law clerks? I don’t know. What I do know is that the post-trial proceedings are important in ferreting out errors that sometimes result in wrongful convictions. Lots of people have gone to Death Row, only to be exonerated later on. I’ve met some of them.
  
  If the process were to be significantly speeded up, would capital punishment be a deterrent? Sure, but I think it would require us converting to a police state where individuals have no rights, police can snatch you from your house at 2 in the morning with impunity, the courts are controlled by the government, and there’s no free press. If you can terrorize your citizens, you can deter lots of behavior. All of this, of course, is inconsistent with democratic norms and the Constitution.
  
  Lots of models for this—Iran, Stalin’s Soviet Union, China. Short of making those kind of changes, I don’t think speeding up the system will cause capital punishment to be a deterrent for the simple reason that murderers don’t think it through.
  
  What about the victims’ families and their need for closure and retribution? First, as to closure, I’ve read a few stories about families who felt the long process associated with the death penalty was too much to bear. For these people, sentencing the killer to life without parole would have been a better alternative, because the entire process would have concluded in about two years.
  
  As for the need for retribution, read another blog post of mine about how people who have been brutalized have responded: https://considerthisbyjd.com/with-forgiveness-comes-freedom/
  
  Glad to have you as a reader, Jim.
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