An expensive penalty

There may be many reasons to support the death penalty, but economics is not one of them. Fiscal conservatives are hard pressed to explain how a punishment that is empirically three to five times more expensive than life in prison without parole provides an economically viable solution to crime.

If money is the question, the death penalty is not the answer. Simply put, the death penalty no longer makes good cents.

We live in a constitutional democracy that provides due process in criminal prosecutions. These constitutional protections are afforded all criminal defendants, regardless of the heinous nature of the alleged crime or even admission of guilt.

Any suggestion that we could lessen the expense of the death penalty by forgoing investigations or legal processes, such as limiting appeals or habeas corpus, is simply not a constitutionally supportable option. We cannot abandon our constitutional principles to save money.

The Idaho Legislature undertook an extensive review of death penalty costs in 2014. The operational costs, the actual costs needed to execute the inmate—not the costs of litigation and housing—averaged over $50,000 per inmate for the two inmates Idaho executed.

A 2008 study of Maryland’s death penalty concluded that a death-eligible prosecution costs $1.8 million per individual, and a successful death-penalty prosecution, where the death penalty is secured, costs in excess of $3 million per individual.

Beyond the direct financial costs, a true economic model would demand that states consider the opportunity costs of placing massive financial resources behind the death penalty.

What other investments could a state make with the funds currently earmarked to investigate and prosecute death penalty trials? Would education be stronger if more funds were placed in the state’s Department of Education rather than given to attorneys and investigators? Fox News remarked in 2010 that every time “a killer is sentenced to die, a school closes.”

Would a state be able to hire more first responders, particularly police officers to help prevent crime at its source rather than prosecuting crime after the fact? Would roadways and airways be safer, or our borders more secure?

Little attention is paid to the opportunity costs society incurs by placing such a high premium on the death penalty, yet the opportunities sacrificed should undoubtedly be part of the conversation.

If we are to continue utilizing the death penalty—and there are many defensible reasons to do so— we must be willing to pay a rather hefty price.

Money spent on investigators for one death penalty convict could be used to hire a police officer for a year. Money spent on trial attorneys for that same one convict could be used to hire five teachers for a year. And money spent on appellate attorneys could be used to hire more teachers, more police officers or—in Texas, Arizona and California—individuals to help patrol and secure our borders. These are obvious examples of lost opportunities.

Perhaps it is time to have a serious economic discussion about the death penalty so that we can openly debate our priorities.

Would we rather have one individual executed or more teachers and police officers?

Do we want to continue the lengthy constitutional process of condemning individuals to death as our state and federal budgets pay a significant price for doing so?

The answer may be yes. But, let us at least not fool ourselves into believing the price of execution is slight, capable of being reduced or that we are not forgoing other fiscal needs.

No matter how you run the numbers, the death penalty is expensive; in fact, downright exorbitant.

Meg Penrose is a professor of law at the Texas A&M Law School and has extensive experience representing Texas death row inmates in federal court on a pro bono basis.