How Much Does It Cost to Keep a Prisoner in Jail for Life

April 15, 2016
By Paul Brennan

Debates over the death penalty stir up passions on all sides, often focusing on factors that are not easy to measure objectively. Concepts of justice and fairness vary from person to person, and according to a 2012 report published by the National Research Council of the National Academies of Sciences, all existing studies of the death penalty as a deterrent to future murders are so methodologically flawed that they are unreliable.^[1] But there is one factor in the debate that is more easily quantifiable.

"Death cases are more expensive than life in prison," Dennis Davis, president of South Dakotans for Alternatives to the Death Penalty, told Vermillion Plain Talk when his state's legislature was considering a bill to abolish capital punishment earlier this year.^[2] That bill was voted down, but the issue of cost remains important in the debate over the death penalty.^[3]

In 2014, the Marshall Project, a nonprofit that reports on criminal justice issues, noted,

"

In the six states that have abolished capital punishment over the past decade, Republican and Democratic officials have also emphasized the cost of the death penalty as a major rationale. Even in states that retain the punishment, cost has played a central role in the conversion narratives of conservative lawmakers, public officials, and others who question the death penalty as a waste of taxpayer dollars.[4] [5]

"

The importance of the cost issue raises the question of whether abolition advocates like Davis are correct when they claim death cases are more expensive than life in prison. The unique nature of death penalty cases suggests Davis might be correct.

Background: death is different

In Furman v. Georgia (1972) the U.S. Supreme Court decided that the way the states of Georgia and Texas applied the death penalty was so arbitrary that it violated the prohibition of cruel and unusual punishment in the U.S. Constitution.^[6] The 5-4 decision was the first time the court had broadly ruled on the constitutionality of the death penalty. Previous decisions had been limited to issues raised at trial in each particular case under consideration.^[7]

The justices were so divided on the constitutional issues involved that no majority opinion was issued in Furman, but Justice Potter Stewart's concurrence became the most frequently cited opinion.

"The penalty of death differs from all other forms of criminal punishment, not in degree, but in kind. It is unique in its total irrevocability," Stewart began. He argued that the application of the death penalty in Georgia and Texas varied so widely that "death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual." Stewart concluded that the Constitution "cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed."^[6]

The divided opinions in Furman left open the possibility that the death penalty itself, rather than the way it was applied, constituted cruel and unusual punishment. That issue was resolved four years later in the court's decision in Gregg v. Georgia. In a 7-2 ruling, the court found that with proper safeguards in place, the death penalty was constitutional.^[8]

In 1977, the first post-Furman execution took place in Utah.^[9]

Death-is-different jurisprudence

The Furman and Gregg decisions ushered in an era in which capital cases are treated very differently from cases that don't involve the death penalty. Legal scholars commonly use the term "death-is-different jurisprudence" to refer to the greater care now taken to see that rights are properly accorded to a defendant.^[10]

"Capital cases involve more lawyers, more witnesses, more experts, a longer jury selection process, more pre-trial motions, an entirely separate trial for sentencing, and countless other expenses," summarizes Equal Justice USA, an organization that advocates the abolition of the death penalty.^[11]

A 2013 study, published by the University of Denver Criminal Law Review, examined the costs associated with the death penalty prior to the appeals stage in Colorado. The study found that most of the costs were related to the greater length of trials involving capital punishment. Examining prosecutions for aggravated murder between 2005 and 2010, the authors found that cases in which prosecutors sought the death penalty lasted an average of 148 days from pre-trial motions to sentencing. Cases in which prosecutors sought life in prison were significantly shorter, lasting on average 24 days.^[12]

Post-sentencing appeals can add decades of further expenses to the overall cost of a death penalty case.^[13] There is no general study of how long the average death sentence appeal lasts or how much it costs, but the U.S. Justice Department does publish statistics on length of the interval between a defendant being sentenced to death and the sentence being carried out.

According to the most recent DOJ report, the average time between sentencing and execution is 15.5 years.^[14] This is more than 5 years longer than the average time between conviction and execution in 1996, the year the Effective Death Penalty and Antiterrorism Act was signed into law. The EDPA was intended to streamline the federal appeals process in capital cases.^{[14] [15]}

State and federal costs

Thirty-one states and the federal government currently have the death penalty, and costs vary from state to state, due to factors ranging from the rate of compensation for attorneys representing indigent defendants to costs associated with long-term incarceration.^{[16] [17]}

The costs associated with long-term incarceration illustrate how much certain costs can vary among states.

South Dakota currently has three prisoners awaiting execution.^[18]Because the state has no actual "death row," it houses those prisoners alongside other prisoners in the state prison annex for violent offenders, so according to the state's Department of Corrections there are no additional expenses involved in housing prisoners sentenced to death.^[19]

California, in contrast, has the nation's largest number of prisoners awaiting execution and incarcerates those 748 prisoners separately from other state prison inmates.^[20] A 2012 study concluded that maintaining separate facilities meant California spent an average of $85,000 each year to incarcerate a condemned prisoner.^[21] The study concluded it cost the state an average of $45,000 each year to incarcerate a prisoner serving a sentence of life without parole.

The scope of studies conducted at the state-level also vary. Some examine only expenses associated with pre-appeal trial costs, and some are even narrower, focusing only on the costs associated with either defending or prosecuting capital cases. But every study of the death penalty cases since 1976 has found that seeking death results in substantially increased legal costs.^[17]

No study concluding death penalty cases in the post-Furman era are cheaper than similar cases which result in life in prison has ever been published. It's also not an argument advanced by organizations that support the use of the death penalty.

The most recent state-level study was a comprehensive look at the cost of the death penalty in Washington, published by Seattle University in 2015.^[22] The study found "Combining all cost categories, the average total costs to the justice system related to pursuit of the death penalty are about 1.4 to 1.5 times more expensive than [cases in which the death penalty could have been sought, but wasn't]." The only area in which the death penalty cases (DPS) were less expensive than similar cases in which the death penalty was not sought (DPNS) was the cost of long-term incarceration, since death row inmates on average spend fewer years in prison than those serving a life term.

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Post-conviction lifetime incarceration costs… are lower for DPS cases (.7 to .8 times DPNS cases). However, it should be noted that these figures are based on a very conservative cost estimation method.[5]

"

At the federal level, studies have focused on the cost associated with defending cases in which the DOJ seeks the death penalty. The most recent study by DOJ examined federal death penalty cases between 1989 and 2009. It concluded that defending death penalty cases cost on average eight times as much as defending similar cases in which the death penalty was not sought.^[23]

Conclusion

Was Dennis Davis correct when he claimed that death cases are more expensive than life in prison?

A preliminary study by South Dakotans for Alternatives to the Death Penalty, examining first-degree murder cases since 1985 that have resulted in a death sentence or life in prison, found that on average, legal costs in death penalty cases exceeded those in the other cases by $353,105.^[24]

The study was submitted to the State Affairs Committee of the South Dakota State Senate as part of the committee's hearing on this year's bill to abolish capital punishment.^[3] The study was referenced by both proponents and opponents of the bill during the hearing, and its numbers were not refuted.

While the legal costs were greater, information from the South Dakota Department of Correction shows the average cost of long-term incarceration for a prisoner sentenced to death is lower than that of a prisoner serving a life sentence. Because there are no extra expenses involved in housing condemned prisoners, and those prisoners are incarcerated for less time in state prison, the average savings per prisoner is $159,523.^[19]

Since the average savings in long-term incarceration is so much lower than the average additional legal costs, it appears Davis is correct about the cost of the death penalty versus life imprisonment in his home state.

Because the costs associated with capital punishment have not been studied in every state that has the death penalty, and because most of the existing studies are limited in scope, it is not possible to state definitively that the death penalty is always more expensive than life in prison in the United States. But the studies of capital punishment conducted since the Furman decision do offer support for Davis' claim.

How Much Does It Cost to Keep a Prisoner in Jail for Life

Source: https://ballotpedia.org/Fact_check/Is_the_death_penalty_more_expensive_than_life_in_prison

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