Price of death penalty has many questioning the punishment

News-Sentinel March 14, 2006

Convicted murderers Michael Morales and Ricky Ortega have both spent more than two decades behind bars. But the cost of delivering justice to the two men responsible for the brutal death of Tokay High School student Terri Winchell in 1981 likely differs by millions of dollars.

Sentenced to life in prison without parole, Ortega has cost California taxpayers some $800,000 in prison costs alone since 1983.

State and federal taxpayers have paid some $250 million to unsuccessfully carry out the death sentence handed down to Morales over two decades ago, based on the average costs of 11 executions over 27 years, as reported by the Los Angeles Times.

Moral arguments aside, the increasingly high cost of capital punishment in California has many questioning the worth of having the state carry out death sentences.

However, some say the burden death sentences put on taxpayers is simply part of a fractured justice system, which is hemorrhaging money.

Hard time, heavy costs

Housing an inmate in California's corrections system costs an average of $34,150 per year, though the figure is higher for death row and life-without-parole inmates, who require additional security, according to the California Department of Corrections and Rehabilitation.

The prolonged and often complicated appeals process in capital cases makes a death sentence far more costly than keeping murderers behind bars until they die.

Stakes are higher in capital cases, which account for only 1 percent of homicide cases, and with that comes a higher, albeit costlier degree of review, said Floyd Feeney, a professor at the University of California, Davis, School of Law.

Investigation and prosecution of capital cases typically goes beyond the parameters of other criminal cases, Feeney said.

Though hard figures are not available, capital cases tried in San Joaquin County probably do not cost much more than a case that ends in life without parole, said Chuck Schultz, the deputy district attorney who heads the county's homicide prosecution unit.

Death penalty appeals process at a glance

Twenty-five years ago, 17-year-old Terri Lynn Winchell was raped and murdered in a case that not only brought most of Tokay High School to her funeral, but garnered enough publicity that her killers' trials were moved to Southern California.

One suspect, Ricky Ortega, was sentenced to life in prison with parole. The other, Michael Morales, was sentenced to death. Since his 1983 conviction, the case has wound its way through appellate courts. He is scheduled to be executed Feb. 21, but the appeal process continues.

After a defendant is convicted and sentenced to death, the appeals process begins. All death penalty cases are automatically appealed and all defendants are assigned an attorney, though that process alone can take more than five years.

The automatic appeal, called the "direct appeal," is heard by the California Supreme Court, which looks at the whole trial record and then usually affirms the death sentence. The defendant can then ask the U.S. Supreme Court to review the case, which can take a year.

In the meantime, the defendant can file a "state habeus corpus" appeal, which addresses things not included in the trial record, such as inefficient legal counsel during trial. This often requires another attorney to be appointed.

The California Supreme Court can then ask a lower court to review the case, or can deny it. Defendants often file more than one habeus corpus petitions, and each one can be appealed to the U.S. Supreme Court.

Once state courts strike down all appeals, the defendant can file a "federal habeus corpus" petition, alleging civil rights violations. Sometimes another attorney is appointed to handle this part of the case.

The federal appeal is heard by one of four district courts in California, and those sometimes result in more court hearings. If a new issue is raised that wasn't heard in state court, the federal courts can postpone the case until the California Supreme Court rules on that issue.

Once the district court rules, which takes years because there is no deadline, the case can be appealed to the Ninth Circuit Court of Appeals. A three-justice panel hears the appeal, and then it is sometimes again heard by an 11-justice panel.

That procedure can also take years, and it may also be appealed to the U.S. Supreme Court.

If the U.S. Supreme Court denies the appeal, an execution date is scheduled. The defendant may then ask the governor to grant clemency.

In the weeks leading up to the execution, the defendant often asks state and federal courts for permission to file another habeus corpus appeal.

The trials of both Morales and Ortega were more expensive than other cases tried locally because they were held in Ventura County, incurring added transportation and hotel costs for witnesses and prosecutors, Schultz said.

In addition to a murder charge, the district attorney must add a further layer of proof in the form of a special circumstance to qualify the case for capital punishment. Many prosecutors' offices decide on special circumstances through a special internal process, which draws further on resources, Feeney said.

And if a special circumstance is applied to a capital case, that, too, must go through consideration by a jury.

In non-capital cases, an appeal heads to a district court of appeal. But appeals in California's capital cases go directly to the California Supreme Court.

Because of that court's caseload, it can take two to three years before the appeal is heard, Feeney said. That can make the process more expensive, he said.

"Part of the issue is that the California Supreme Court can only hear so many cases a year. It doesn't work to make the Supreme Court just the death penalty court. There are various bottlenecks in this," Feeney said.

Another factor adding to the cost of death penalty appeals is that defense attorneys must exhaust all options.

"Defense lawyers see it is as their job to raise every issue they can because the effects of the death penalty are what they are," Feeney said.

Appointed attorneys representing condemned inmates before the California Supreme Court are compensated at $125 an hour, plus specified expenses, or with a fixed fee that ranges from $135,000 to more than $314,000, depending on case complexity. Investigation expenses for habeus corpus work are reimbursable for up to $25,000 without prior court approval.

Millions in taxpayer dollars are devoted to the death penalty process each year.

The California Attorney General's capital case unit, which prosecutes most death penalty cases on appeal, has an annual budget of $11 million; the California Supreme Court's court-appointed counsel program is funded to the tune of $14.3 million; the Office of the State Public Defender has a budget of $11.3 million for capital cases; and the Habeus Corpus Resource Center has a budget of $11 million. Federal court costs are $12 million a year, according to a report by the Los Angeles Times.

The chemical cocktail used to execute inmates via lethal injection costs about $200, according to the CDCR.

How much is too much?

Some say the current cost of capital punishment appeals is more than it needs to be.

Too much time and money is spent on litigating issues beyond guilt or innocence, said Kent Scheidegger, legal director of the California Criminal Justice Legal Foundation, which pushes for victims' rights.

Much of the litigation in capital cases is devoted to the penalty phase, such as whether evidence was properly disclosed in earlier trial phases and if attorneys and jurors were competent, Scheidegger said.

For instance, he noted, recent litigation in Morales' case had little to do with if he killed Terri Winchell, but whether a condemned inmate feels pain during lethal injection.

"All these issues should be reviewed, but once is enough," he said. "There is no need for three or four or five different courts to go over those (issues) if they have nothing to do with the accuracy of the verdict. We should change the system so we can afford it."

Taxpayer dollars would be better spent on police, mental health and child abuse prevention than on executions, according to Lance Lindsey, executive director of Death Penalty Focus, a San Francisco-based nonprofit against capital punishment.

Only about 1 percent of homicides in the state are tried as capital cases, and those cases cost taxpayers two to three times more than non-capital cases, Lindsey said.

"To spend so many millions of dollars on a such a small number of capital trials really doesn't make much sense," he said.

Between 1978 and 2006, 13 of the 814 prisoners with death sentences were executed in California while 50 died by other means, including 33 natural deaths, according to the CDCR.

Given that more people have died of natural causes on California's death row than have been executed since the death penalty was reinstated, costs associated with the death penalty are unjustified, said Janis Gay, a board member with anti-death penalty Murder Victims' Families for Reconciliation.

"If you have life in prison, the same thing is going to happen. So why spend millions of dollars?" she asked.

Costs of the death penalty and the justice it is intended to bring are two separate things, said Deputy District Attorney Schultz.

Capital punishment by the numbers

$7.4 billion: 2006-06 budget for the California Corrections Department.

$250 million: Average cost of 11 executions in 27 years.

$114 million: Costs of death penalty to taxpayers.

$34,150: Average annual cost of housing an inmate in state prison.
9,000: Average number of pages of court transcripts in capital cases.

645: Inmates on death row.

$200: Cost of lethal injection chemicals.

49: Average age at time of execution.

33: Death Row inmates who died of natural causes.

17.5: Average time spent on Death Row.

13: Inmates executed in California since 1978.


Source: News-Sentinel