Reality check: Death penalty is too expensive to make sense
Last week saw the first executions in the United States since the botched lethal injection of Oklahoma inmate Clayton Lockett, which drew renewed attention to the death penalty. Despite a sharp decrease in support for the death penalty — from 78 percent as recently as 1996, to 55 percent in a survey conducted last year by the Pew Research Center — the practice remains on the books in 32 states. This reflects the fact that support for the death penalty is uneven, with conservatives and Republicans far more likely to support it than liberals and Democrats.
The result of this disparity is that even as liberal states like Maryland and New York do away with the practice, conservative states like Texas and Utah are likely to stick with it. The fundamental reason conservatives tend to support the death penalty is that, as University of Pennsylvania law professor Stephanos Bibas recently told the Boston Globe, it reflects their belief in the importance of individual responsibility. For conservatives troubled by the rights revolution that transformed the U.S. criminal justice system in the 1960s and 1970s, â€śthe death penalty became a symbol: Are we willing to hold people accountable for their actions?â€ť
Perhaps in recognition of this widespread belief in the death penalty as a symbol of individual responsibility, at least some death penalty critics are choosing to emphasize its physical cruelty. For example, the political theorist Austin Sarat of Amherst College, author of Gruesome Spectacles, a history of botched executions, argues that the death penalty is inseparable from physical cruelty, as evidenced by the long history of mishaps and malfunctions that have turned seemingly humane methods of execution into hellish torments.
My own belief is that while virtually all methods of execution, including the most ingenious ones, will at some point fail to deliver a painless death, this isnâ€™t in itself an argument against the death penalty. All human institutions suffer from limitations, and itâ€™s hard to deny that contemporary executions are in important respects less cruel than those used in past eras.
Moreover, there is no reason to believe that progress has ceased. If you embrace the basic premise that the death penalty has important symbolic value, as a sign that some crimes are so heinous as to merit death, youâ€™re not going to be convinced that botched executions are reason enough to abandon it.
The argument that I find most compelling is that prosecuting death penalty cases is extremely expensive. A 2008 Urban Institute study found that in Maryland, which recently abolished its death penalty, the cost of the average capital-eligible case in which prosecutors did not seek the death penalty was $1.1 million, including $870,000 in incarceration costs and $250,000 in expenses associated with adjudication. In capital-eligible cases in which prosecutors sought the death penalty unsuccessfully, the average cost was $1.8 million — $950,000 in prison costs and $750,000 in adjudication costs, or three times as much as in cases in which the death penalty was not sought. And in capital-eligible cases in which prosecutors successfully sought the death penalty, the average cost was $3 million, with $1.3 million devoted to incarceration and $1.7 million to adjudication.
The numbers appear to be even more egregious in other states. In 2003, the Kansas state government found that cases in which the death penalty was sought cost 70 percent more than those in which it was not sought.
It might seem rather bloodless to oppose the death penalty on the grounds that it is extremely expensive. But given that the death penalty doesnâ€™t appear to have much of a deterrent effect, a cost-based opposition might be reason enough to abandon it, or at least to only pursue it in cases uniquely offensive to the moral order.
I agree with those who believe that the death penalty ought to remain on the table as a way for society to demonstrate the seriousness with which it embraces the idea of individual responsibility. Yet we can enshrine this belief while using the death penalty very, very sparingly.
(Editor’s note: The original version of this column appeared on June 20, 2014. It was updated on June 23.)
PHOTOS: An undated handout photo of the revamped lethal injection room at San Quentin State Prison supplied by the California Department of Corrections and Rehabilitation October 25, 2012.
Darick Lane (L) and his son Desmond Lane (R) hold candles outside the prison before the execution of John Allen Muhammad at the Greensville Correctional Center in Jarratt, Virginia, November 10, 2009. REUTERS/Jonathan Ernst