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Balancing philosophical with practical concerns regarding death penalty

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Cost of Justice

Putting a price tag on the cost of capital punishment isn’t easy, and so trying to answer the question about whether the death penalty is worth that cost is even more difficult.

Society can mull the morals of whether the state should execute the most violent offenders. Prosecutors push to speak for those victimized by these “worst types of crime” and keep communities safe, while defense attorneys advocate for the rights of those accused or convicted to make sure the process works correctly. Meanwhile, the courts navigate that long road full of murky legal issues while policymakers debate the death penalty from all sides.

DeathNumbersIn the end, none of those involved in the debate seem to have a clear picture of what the true cost of capital punishment is, and the answer to the question of whether it serves the intended purpose depends on who is asked.

“The possibility of actually executing a person for whom the death penalty is sought is less than 5 percent, and any other government program that had such a dismal ‘success’ rate would be scrapped in a New York minute,” said

Indianapolis defense attorney Monica Foster, who’s handled as many as 40 capital cases within Indiana but has consulted on hundreds nationally. “We spend astronomical amounts of money trying to kill people who do not end up being killed by the government. If we really care about preventing violent crime and its victims, a good place to start would be to redirect money spent trying to kill people to programs that have proven to decrease childhood poverty, neglect, and abuse.

That is what many states are already doing, and others are considering.

Death sentences nationally and statewide have plunged to their lowest levels in recent years due to concerns about wrongful convictions and executing the innocent, procedural hurdles within the legal system, and the high financial cost of capital punishment that typically comes with these cases.

In March, Illinois became the 16th state to stop using this penalty, following a legislative moratorium imposed in 2000 and studies revealing how flawed the capital system has become. Part of that Illinois law reallocates money that would have been used for death penalty cases to services for victims’ families and law enforcement training.

Indiana hasn’t stopped utilizing capital punishment, despite a report in 2007 that recommended a moratorium because of some of those same flaws and arbitrary uses of the death sentence here.

But now, the Indiana attorney general is leading an effort to scrutinize the economic impacts of the death penalty to help decide whether it should stand. A first-of-its kind criminal justice summit was held in November at Notre Dame Law School, bringing about 75 members of the legal community from all sides of the debate together to consider that impact.

greg zoeller Zoeller

“So, it is time that we in the criminal justice system have a candid conversation about the economic impact of capital punishment here,” Attorney General Greg Zoeller said. “I don’t claim to know the answers; but as state government’s lawyer sworn to uphold the laws of Indiana, I hope we can trigger a frank discussion of these questions.”

Moving target

Finding an accurate accounting of the costs is difficult, largely because a comprehensive study hasn’t been done recently and scattered information paints incomplete pictures.

Nearly a decade ago, the Indiana Criminal Law Study Commission issued a report on capital sentencing and found death penalty costs are generally more than 20 percent greater than the total cost of life without parole, depending greatly on whether death sentences are overturned and defendants are resentenced to life in prison. That report analyzed both the trial-level and appellate phases, as well as incarceration and other aspects that address the cost.

Nothing that comprehensive has been done since, although the Legislative Services Agency did a cost analysis during the 2010 legislative session of data from 2000 to 2007 to assist lawmakers considering a bill that allowed judges to enhance sentences for certain crimes and added aggravating circumstances for murder cases.

landis-larry-mug Landis

Specifically, the analysis used Indiana Public Defender Commission figures from six cases during those years to calculate an average cost of $449,887 for the death penalty trials and direct appeals. This did not include expenses for prosecutors, sheriffs, and courts. Comparatively, the average cost of trials and appeals seeking life without parole was $42,658, according to the non-partisan agency.

All Hoosier counties can receive 50 percent reimbursement from the state for defense costs in capital cases under Indiana Criminal Rule 24, and that data is what has been used to compile the cost-analyses. Similar state information isn’t tracked by the prosecution side and it’s often weaved into the budgets for local prosecutors or the state AG’s office that handles these cases on appeal. Some states’ bar associations survey their attorneys and prosecutors on these costs and have found estimates range between $200,000 and $250,000 more than the costs of non-capital trials.

Former Vanderburgh County Prosecutor Stan Levco, who spent three decades in that position before leaving at the end of 2010, says the current capital system in this state is nearly broken.

“It’s almost to the point where it’s no longer viable, and unless we decrease the costs, it’s not worth it,” he said.

stewart-steve-mug Stewart

Clark County Prosecutor Steve Stewart, considered an expert on the death penalty and the author of an annual update on cases and issues statewide, argues that it’s the defense costs that run so high because of Criminal Rule 24 and courts often rubber stamp any requests that are made.

“Prosecutors are scared to death about filing a death penalty case and risk their office budget, or bankrupting their county budget,” he said. “If it doesn’t change, those costs are going to force us out of the capital punishment business.”

Even if the system needs change, Stewart and others are adamant that capital punishment is worth keeping on the books because it offers what even life without parole does not: a guarantee that someone will not be able to further endanger society.

Prosecutors contend the reimbursement structure needs revision, possibly balancing the cost or giving prosecutors more of a voice in what can and cannot be expensed. Defense attorneys agree that something does need to change, but some of those arguments go to the deeper question of whether capital sentences are needed in the first place.

Larry Landis, executive director of the Indiana Public Defender’s Council, says the debate about the death penalty boils down to a philosophical difference between the two sets of attorneys and he wonders now why there’s still a question about whether capital punishment is worth it or not.

“You really have to wonder why we’re going through this death dance, banging this drum the way we do when it’s so unnecessary because many are willing to plead out to life from day one,” he said. “But rather than doing that, we go through punishment for the sake of punishment and the meter is running the whole time to get to the same result.”

• Coverage on this capital punishment cost will continue in the May 11-24, 2011, issue of Indiana Lawyer, with a look at the long path through the legal process and what that can cost emotionally for those on the victim’s side.•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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