Recent articles appearing in the Lincoln Journal Star bring to mind the late Sen. Daniel Patrick Moynihan, who famously said, “Everyone is entitled to their own opinion, but not their own facts.”
The death penalty cost article appearing in the Lincoln Journal Star (“Death penalty a costly burden,” June 28) illuminates why Nebraska voters have every reason to exercise their constitutional right to decide this issue for themselves. The article contains a cornucopia of facts and figures that range from the incomplete to the irrelevant to the misleading.
Much of the cost, indeed, much of the criticism of the death penalty, is attributed to “decades of appeals.” It is unsurprising that the loudest complaints about death penalty delays come from death penalty opponents who have created them. Rather than eliminate the death penalty to address the problem of delay, why don’t we limit appeals in ways that are consistent with the due process rights of defendants, as other states of have done. Virginia’s death penalty appeal period averages seven years. In Texas, it’s eleven years. It doesn’t have to be endless.
Claimed “cost studies,” often performed by or at the behest of death penalty opponents, are frequently so incomplete as to be false and misleading. For example, they don’t take into account the increase in the cost of life without parole cases if there were no death penalty. Criminal defendants who are facing the death penalty -- which today must be pleaded by prosecutors up front -- often want to make a deal by pleading guilty to first degree murder in exchange for a sentencing recommendation of life without parole. The existence of the death penalty as a possible sentence leads to guilty pleas that save the money spent on trials and limit the opportunity for appeals. Without the death penalty, criminal defendants and their lawyers will roll the dice and force prosecutors to try many more cases at very great expense to the taxpayer.
This flaw is front and center in the Kansas study mentioned in the article. Of the 34 death penalty cases in the study, 18 of them -- more than half -- were plea-bargained down to lesser sentences. Yet there is nothing in that study that credits the cost savings to the taxpayers in not having to pay for those 18 trials. By ignoring this factor, the study is misleading and has very little utility.
There were two highly publicized cases in Nebraska last year where this occurred. A man murdered his ex-wife at her home in Kearney, then tracked down a lawyer in Grand Island and shot him dead with a high-powered rifle. The defendant was charged with first degree murder in cases filed in Buffalo and Hall counties. In Hall County, the prosecutor pursued the death penalty. Rather than face the death penalty, the defendant pleaded guilty to the charges in both counties and was sentenced to life in prison. The cost of two trials was averted entirely.
Last year in Douglas County, a man raped then beat to death a 93-year-old woman. The prosecutor sought the death penalty. The defendant quickly pleaded guilty in exchange for an agreement that the prosecutor would not seek the death penalty. No cost for a trial there, either.
It was the ability of the prosecutors to seek the death penalty that avoided the high cost of murder trials in these cases, just last year, where the guilt of the defendant was not in question. If all we’re talking about is cost, then we ought to talk about cost savings, too. But the studies rarely do.
Then, too, there is this fantasy that if only we get rid of the death penalty, the entire litigation machine that has built up around death penalty opposition will be dismantled and all of the people involved in it will just go home and go fishing. They won’t. They will stay right where they are and start litigating against life without parole instead. We’ll be right back where we are now, fighting an expensive effort to prevent putting heinous criminals back on the street.
The article cites a study from another state that found that the cost of housing death penalty inmates is double the cost of housing an inmate in the “general population.” It doesn’t make any difference what the cost is to house an inmate in the “general population.” The relevant comparison is what it costs to house a death penalty inmate compared to an inmate sentenced to life without parole. The answer in Nebraska is: nothing. There is no annual cost difference. We have no “death row,” no “green mile.” These inmates are housed with those sentenced to life without parole. If there is a total cost difference, it is attributable to the length of incarceration, if appeals are handled correctly.
The cost of the death penalty -- and while we’re thinking about it, how about the cost of our entire criminal justice system -- surely shouldn’t be the only consideration. There are many good reasons to retain the death penalty unrelated to cost, beginning with the fact that law enforcement is nearly unanimous in its recommendation to retain it. But even if cost is taken into account, no one has calculated what’s saved by guilty pleas for a life sentence from defendants facing the possibility of a sentence of death, no one tried instead to reduce cost by reducing endless appeals, and we don’t seek the death penalty often in our state in any event.
We have a right to vote on this very serious issue, and we should exercise that right through our constitutionally protected referendum process. The voters of our state have a right to decide this for themselves.
Bob Evnen is a Lincoln attorney and a co-founder of Nebraskans for the Death Penalty.
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