Syringe

During debates in the legislative session on the repeal of the death penalty, supporters and opponents both drew on the costs to make their arguments.

Senators who wanted repeal -- such as Sen. Matt Williams of Gothenburg -- said it costs double, maybe triple, to try a death penalty case, sentence the convicted, and then slog through sometimes decades of appeals.

Those who wanted the death penalty to remain a sentencing option -- such as Sen. David Schnoor of Scribner -- said it doesn't cost a lot of money, and it's cheaper than keeping someone in prison for life.

So who's right?

Conservative politicians who more recently find themselves opposed to the death penalty say they are convinced it is "wasteful and inefficient," and the cost "alarming."

But you won’t find those costs as line items in any budget, say Conservatives Concerned about the Death Penalty, a network of political and social conservatives. Those costs are buried in a "thicket of legal proceedings and hours spent by judges, clerks, prosecutors and other law enforcement agencies."

Nebraska Attorney General Doug Peterson said his office has never had a budget in which funds were specifically identified for capital cases. Defending death sentences has been just one of many responsibilities of the Nebraska Department of Justice.

It's 1 percent of the annual criminal appeals cases, with only one or two attorneys with responsibility for monitoring capital cases, Peterson said.

But Jim Mowbray, chief counsel of the state’s Commission on Public Advocacy, created in 1995 to represent indigent defendants charged with first-degree murder, said when the death penalty is involved, it basically requires twice the amount of time and attention from an attorney in his agency.

In effect, he said, there are two trials, the guilt-innocence phase, and then a sentencing phase, which takes as long to prepare for and carry out as the guilt-innocence phase. Both the defendant's attorney and the Attorney General's Office spend more time on these cases than a nondeath penalty case.

Finding mitigating evidence can also require a great deal of travel, both in and outside the United States, he said.

"So there's no question it costs more," Mowbray said.

The appeals process will go on for many years, and federal costs will add to the total.

Mowbray used the example of death row inmate Michael Ryan, who before his death from natural causes had an issue pending before the Nebraska and United States supreme courts almost 30 years after his crime was committed. That, despite the seeming lack of doubt about Ryan's guilt and the heinousness of his crime.

Capital cases have a high cost to counties.

Mowbray's Public Advocacy Commission was appointed to Ryan's case in 2012. All the costs of the initial trial and appeals before that time were paid by Richardson County or the federal government, he said.

Richardson County officials had to declare a financial crisis because the 1985 Michael Ryan/Rulo cult capital murder trial had stripped the county of its $750,000 in cash reserves from inheritance tax collections. Then it had to spend about $1 million for infrastructure damages from two years of flooding. Another capital murder trial that followed, of John Lotter in the triple homicides near Humboldt, sent the county into debt and struggling to meet payrolls.

In total, Richardson County spent $1.35 million on the Ryan and Lotter trials, including appeals, according to Richardson County Treasurer Austin Duerfeldt.

The Public Advocacy Commission had 34 different filings in the Ryan case for actions in state and federal courts, Mowbray said.

"And that costs money," he said.

Death penalty advocates argue that attorneys at the commission are on a yearly salary. And experts and travel to interview witnesses are built into the commission's budget.

Where taxpayers see an added impact, Mowbray said, is when there are multiple defendants -- such as the four in the 2002 Norfolk bank robbery killings -- and private lawyers must be added to the costs.

There are other costs, such as judicial time, he said. And death penalty cases can cause a backlog on civil cases, especially in federal court.

“So for people who favor the death penalty to say it doesn't cost any more than life in prison, it's just not true,” Mowbray said. “That's fiction and we all know it.”

To get to the costs, Sen. Brenda Council in 2010 tried -- and failed on a 22-22 vote -- to pass a bill (LB1105) that would have authorized a $50,000 death penalty study by the University of Nebraska at Omaha.

Opponents questioned whether such a study could gather accurate information. They discredited past criminal justice studies, and said they doubted that knowing the costs would change anyone’s mind about whether the state should have a death penalty.

But more than 15 states have now done the cost studies.

All concluded the death penalty systems in their states were far more expensive than a system in which the maximum sentence is life in prison, said Richard Dieter, executive director of the Death Penalty Information Center, testifying in 2013 before the Legislature’s Judiciary Committee. The costs reflect the reality that most capital prosecutions never result in a death sentence, and most death sentences do not lead to an execution, he said.

A 2014 study by the Kansas Judicial Council's Death Penalty Advisory Committee reviewed 34 capital-eligible cases filed between 2004 and 2011.

The study found that costs for the Kansas Board of Indigents' Defense Services for nine cases in which the death penalty was sought were $3.56 million, or $395,762 per case. Six cases for which the death penalty was not sought were $593,781, or $98,963 per case.

District court costs for the nine death penalty cases were $72,530 per case, and $21,554 per case for five non-death penalty cases.

In the Kansas Supreme Court, justices assigned to write death penalty case opinions spent 20 times more hours on those appeals than non-death penalty cases. Justices who did not write opinions spent five times more hours on death penalty cases.

The study also showed that prisoners in segregated housing, as those sentenced to death are, cost $49,380 per inmate compared to $24,690 annually to house an inmate in the general population.

In 2010, the Commission to the Study the Death Penalty in New Hampshire found “a significant difference in the cost of prosecution and incarceration of a first-degree murder case where the penalty is life without parole as compared with the cost of a death penalty case from prosecution to execution.”

The increased cost, it concluded, was essential to “guarantee a vigorous defense, a thorough investigation and prosecution of the case, and careful adjudication of the case.”

In 2008 it cost that state more than $5.3 million to prosecute and defend two death penalty cases, one of which ended in a sentence of death and one a sentence of life. The cost included defense in only one case, because one of the defendants paid for his own defense.

The chairman of the New Hampshire study commission concluded the expense was significantly higher in the two cases than if they were not capital cases, including the cost of life-time imprisonment.

Between 1973 and 2007, Nebraska taxpayers paid for 103 cases in which the prosecution sought the death penalty. Thirty-one of those cases led to a death sentence, more than half of those were reversed, and three have ended in an execution, none since 1997.

Reach the writer at 402-473-7228 or jyoung@journalstar.com. On Twitter @LJSLegislature.

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JoAnne Young covers state government, including the Legislature and state agencies, and the people they serve.

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