America Is Stuck With the Death Penalty for (At Least) a Generation

With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

How much does the death penalty cost Nebraska? Economist stands by his $14.6 million-per-year figure, despite criticism

Creighton University economist Ernie Goss recently estimated the death penalty costs in Nebraska at $14.6 million per year.
Creighton University economist Ernie Goss recently estimated the death
penalty costs in Nebraska at $14.6 million per year.
Life or death.

When it comes to crime and punishment in Nebraska, what costs more?

As they go to the polls in November to pass judgment on the Nebraska Legislature's 2015 repeal of capital punishment, voters will consider an issue laden with ethics, justice, religion, public safety - and economics.

In a sense, Nebraskans will soon decide whether the death penalty is literally worth keeping.

The greater weight of the evidence suggests the death penalty costs more than life in prison without parole. Beyond a reasonable doubt, death penalty cases involve more lawyers, they generate more appeals and they demand significantly more court time to resolve than other serious felonies.

What remains debatable is the magnitude of the cost.

The expense of capital punishment has been the subject of dozens of studies in states ranging from California to Kansas to North Carolina. All have reached conclusions similar to that of Creighton University economist Ernie Goss, who recently estimated the death penalty costs in Nebraska at $14.6 million per year.

Goss also concluded that each death penalty prosecution costs the state about $1.5 million more than a case with life in prison as the maximum penalty.

The $16,000 study, funded by the anti-death penalty group Retain a Just Nebraska, quickly came under fire by supporters of capital punishment. They attacked the approach and said they thought the figures were inflated.

Nebraska Attorney General Doug Peterson, a strong supporter of the death penalty, was particularly pointed in his criticisms. He faulted Goss for not seeking data directly from state agencies and for relying on other death penalty cost studies, some of which are sponsored by opponents of capital punishment.

"It's game time when the public is potentially influenced by poor factual information," Peterson said.

Goss has defended his methods and said his figures, if anything, are low. In turn, he challenged the attorney general and other critics to put up their own reports for public scrutiny.

The World-Herald sought the opinion of Eric Thompson, an economics professor at the University of Nebraska-Lincoln. After conducting a thorough review, Thompson said Goss employed methodology widely used by other economists and the study's conclusions are supported by underlying data.

His only criticism: a decision by Goss and his team not to report a range, to give people an idea how much more or less than $14.6 million the cost could run.

"I would have to say, by and large, they provided a lot of evidence there are some additional costs to the justice system in having the death penalty," said Thompson, who has collaborated with Goss on economic studies unrelated to the death penalty.

After a 10-minute skim of Goss' report, however, another economist dismissed the study along with all others that conclude the death penalty costs more to maintain than life without parole.

Anthony Yezer, a professor at George Washington University in Washington, D.C., said such studies fail to account for what's called the "plea-bargain effect." The term refers to the role the death penalty plays in potentially saving trial costs by convincing some accused killers to plead guilty to their crimes rather than risk execution.

Death penalty opponents frequently argue that the death penalty has no deterrence effect. But Yezer disagrees. And he said Goss made no attempt to factor in how much the fear of execution could save the criminal justice system by potentially preventing a murder.

"What's the cost of the murders that would have happened if Nebraska hadn't had capital punishment?" asked Yezer, author of a textbook titled "Economics of Crime and Enforcement."

In taking his own swipe at the Goss report, Gov. Pete Ricketts held up a 2015 analysis by the Legislature's Fiscal Office that concluded any cost savings derived by repealing the death penalty would, at most, be minimal. The Fiscal Office analysis was done as lawmakers debated the historic repeal of capital punishment.

"Dr. Goss' study was based on non-Nebraska numbers and is misleading for those voting on the death penalty in November," said the governor, who helped fund the petition drive that put the referendum on the ballot.

Goss called his decision to write the study and wade into the death penalty debate the "greatest mistake of my career." Describing himself as a political conservative who had been a "full-throated supporter of capital punishment," Goss said his cost study unleashed a wave of angry emails from death penalty supporters.

Nonetheless, he didn't back down from his conclusions.

Critics are wrong, Goss said, when they say he didn't use Nebraska numbers. The analysis that resulted in the $14.6 million annual expense relied on justice cost data that Nebraska courts, counties and state agencies reported to the U.S. Census Bureau.

If anything, Goss called his estimate conservative because it did not include law enforcement expenses. In addition, the economist used data from all states over a 2-year period in order to increase the sample size and make it statistically significant.

"Those numbers are darn good," he said, adding that the margin of error was 1/2 a percentage point.

But he expressed much less confidence in his estimate that death penalty prosecutions cost $1.5 million more. He relied on 19 studies from other states to come up with that number, which he said has a margin of error of plus or minus 18 % points. In addition, the sample size was too small to be statistically significant.

Nonetheless, Goss pointed out that the Legislative Fiscal Office relied on reports from 3 state agencies and the Douglas County Correctional Center to conclude that the death penalty results in minimal financial impact.M

What about the costs incurred by the other 92 counties or the courts, Goss asked.

"If I used the Legislative Fiscal Office methodology I would have been ostracized by economists across the nation," Goss said. "It's just wrong, wrong, wrong."

In response, Fiscal Office Director Michael Calvert said it would be improper for him to comment on Goss' report because it could be viewed as taking a position on the death penalty referendum. The fiscal note by his staff was based on agency information and the "analyst's knowledge of, and experience with, assigned agencies, allowing him to arrive at an opinion on cost consequences with passage of the bill."

Kent Scheidegger, a death penalty supporter and legal director of the Criminal Justice Legal Foundation in Sacramento, California, said he generally agrees that death penalty cases cost more. But after reviewing Goss' report he was skeptical of the $14.6 million figure.

To come up with the figure, Goss used an economic tool called multiple regression. Regression involves writing an equation consisting of variables that could impact a state's spending on justice. Goss' equation included 12 variables.

Scheidegger said the choice of variables for a regression analysis can greatly affect the outcome, and he said that some of the variables Goss included were "odd." For example, Goss factored in the % of each state's population that is black or Catholic.

Scheidegger said the study should have better explained the author's reasoning for such choices.

In response, Goss said it's common for a regression analysis to include racial and religious characteristics of a given population. He argued that both the black and Catholic populations in the state could affect how much the death penalty is pursued.

In his study, Goss also attempted to address the plea-bargain effect, which could save states some criminal justice costs by reducing the number of cases that go to trial. He suggested the death penalty does not prompt more defendants to plead guilty, but he incorrectly attributed the source material behind that conclusion. After the misquoted source raised an objection, Goss acknowledged the error.

But other research also indicates Goss wrongly concluded the death penalty doesn't result in a plea bargain effect, said Yezer, the George Washington University economist.

Yezer pointed to a 2006 study published in an academic journal that compared plea bargain rates in capital cases both before and after New York reinstated the death penalty in 1995. The study concluded the number of murder cases that ended with a guilty plea increased by 26 % after 1995.

The potential cost savings from the plea-bargain effect aren't accounted for in death penalty studies, Yezer argued.

Goss countered by saying his analysis did factor in plea bargaining in the sense that nearly all states engage in the practice.

And he also argued that plea bargaining can sometimes cost taxpayers, too. He mentioned the Beatrice 6, a wrongful conviction case in which the threat of the death penalty was one of several factors that influenced five Nebraska defendants to plead guilty or no contest to crimes they did not commit. A federal jury recently ordered Gage County to pay $28 million in damages for a reckless investigation in the case.

Perhaps the strongest critic of the Goss analysis is the attorney general. Peterson took issue with the state studies, which Goss relied upon to come up with the $1.5 million estimate of an individual death penalty prosecution. The studies conclude that death penalty appeals are a major cost driver, but Peterson said that's not the case in his office.

Each year the 9 lawyers in the criminal appeals section handle about 500 appeals, Peterson said. 5 or fewer of those appeals involve death penalty cases, which equates to about 1 % of the total.

Peterson provided a spreadsheet that shows the annual budget for the appeals division runs about $950,000; 1 % of that budget equals $9,500.

And while other state studies have concluded it costs more to house inmates on death row, state officials say that's not the case in Nebraska. The annual cost of housing each of the 10 death row inmates at the Tecumseh State Prison is about $37,000, the same as other inmates at that institution, said Dawn-Renee Smith, spokeswoman for the State Department of Correctional Services.

Death row inmates are kept in single-occupancy cells within an area called the special management unit, while in the general population, inmates share cells. But Smith said each prison gallery is staffed with a single corporal, regardless of the classification of the inmates.

Peterson's point: "These numbers are out there. He could have gone to the agencies and asked for them."

Peter Collins, assistant professor of criminal justice at Seattle University in Washington, has reviewed dozens of death penalty cost studies across the nation. He said he has determined about 30 of the studies are scientifically sound and will use them for a meta-analysis he is working on.

All of the studies concluded the death penalty costs more, he said. The $14.6 million cost cited in the Goss study is not out of line with what some other states have found, he added.

"The evidence is clear it costs more," he said. "How much more, I'm not sure we'll ever be able to know that without better record keeping."

Goss has made a similar point in response to those, like the attorney general and governor, who fault him for not seeking expense reports from individual counties or agencies.

He argued it would be difficult, if not impossible, for state and county officials to accurately break out the costs associated with a system that is as old as Nebraska itself. It would be like asking the faculty at Creighton University, where Goss works, to identify how much being affiliated with the Jesuits adds to the cost of the institution.

Shortly after the study was released last month, Goss appeared on a talk radio show where the host challenged his methodology. In reply, Goss asked how the host would have done it.

"I'm not the economist," the host replied.

To which Goss said: "That's right, I'm the economist."

Source: Omaha World-Herald, Sept. 10, 2016

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