Costs of the Oregon Death Penalty II
Bill Long, M. Div., Ph. D., J. D.; 5/5/06
Appellate and Post-conviction/Habeas Costs
When we include the costs of various appeals, the numbers, incomplete as they are, show the following. My source for these numbers comes from Ms. Kathryn Aylward of the Office of Public Defense Services ("OPDS"). Let me arrange the numbers in four categories:
(1) Steps Provided by Law; (2) The Possibility of Interlocutory Appeals; (3) Remands; and (4) Costs of Actually Putting a Person to Death after the "10 Steps" of (1) are exhausted. Here is what we know:
(1) "Appeals" Provided by Law
This process is the "10-Step" process I defined in my book, A Tortured History: The Story of Capital Punishment in Oregon (Eugene, OR: OCDLA, 2001) as well as other articles I have written since the book was published in 2001. My terminology of "10 steps" has generally been adopted now by the news media (Ashbel Green) and others.
Steps 1 and 2 (OPDS keeps these numbers together): Direct Appeal to the Oregon Supreme Court and Direct Appeal to the United States Supreme Court. These appeals are handled for the defendant through the Office of Public Defense Services, while the prosecution appeals go through the Appellate Division of the State Department of Justice.* Thus, both are done through "offices" rather than by contract with individual attorneys. Nevertheless, Ms. Aylward has estimated the following for the average expense of direct appeals. It takes 10 months of attorney time with average salary and benefits of $88,000 for these 10 months. In addition, it requires legal secretary time of $13,830 and "services and supplies" of $15,631. The total estimate is then $117,661 for the cost of representation on an appeal of a death sentence. If we double that amount, the reasonable costs of direct appeal is $235,321. This amount includes the average cost of direct appeal to the US Supreme Court.
[*Note. Very rarely is a case on direct appeal taken by a private law firm as a probono case. My former firm, Stoel Rives LLP, has recently taken on the case of Travis Gibson from Lane County. This is the exception rather than the rule.]
It should be noted, however, that these figures are averages. On occasion, as in 2005, a case from Oregon will go to the United States Supreme Court. In such a case, the combined cost of defense and prosecution may well exceed $500,000. We don't yet have the costs of the recent Guzek appeal to the United States Supreme Court, but Mary Williams, Solicitor General of the State of Oregon, declared that it cost her office around $1,000,000 to argue the three Oregon cases presented to the US Supreme Court this term. Even if one assumes that the Guzek case represented one-quarter of that amount ($250,000), with defense costs matching ODOJ costs we would have a sum of $500,000 for the case at this stage.
Step 3: Post-conviction relief in Marion County Circuit Court. This process often takes many years and to date has only been completed for six defendants. The costs for these cases ranged from a low of $63,099 to a high of $107,070, with an average cost of just over $83,000. That would make the average cost of post-conviction trial relief be about $166,000 in current dollars.
Step 4: Post-conviction appeal to the Oregon Court of Appeals. To date we have only completed one such appeal, at the cost of $29,162. It is much too early to say how much others will cost, but I can't think that they will be much less than this. If we say that the average post-conviction appeal incurs defense costs of $35,000, the total cost would be around $70,000.
Steps 5 and 6 : Post-conviction appeal to the Oregon Supreme Court and the United States Supreme Court. Only one case has gone this far, and the OSC denied review. I don't fully know whether the costs of the petition for review were included in Step 4 costs, but I assume for now that they were.
Steps 7-9 : Federal habeas corpus review. We have no idea at this point how long these will take or what they will cost. The federal public defender bears the cost for the defendants in these cases but the State of Oregon bears the cost of prosecution.
Step 10: Clemency before the Governor. We have no information on this step, either.
Summary of (1). Known costs are at least $471,000, with almost half of the process unaccounted for. It isn't unreasonable to double that number, and so that would give us a figure of $942,000 for the costs of administering the death penalty for a defendant who has pursued all his appeals. If we round the number down to $900,000, we have the following:
A. Costs to incarcerate an "LWOP" individual for forty years = $985,938.
B. Costs to execute a defendant condemned to death and executed after 20 years.
$492,968 + $900,000 = $1,392,968.
C. Costs to execute a defendant condemned to death and executed after 25 years:
$616, 208 + $900,000 = $1,516,208.
These, it should be stressed, are the minimum costs to execute a person in Oregon. If we took the average of B and C and compared it to the costs of A, then the figure to execute a person who pursues all of his appeals is 50% more than the cost of someone sentenced to LWOP and waives all his appeals.
But these are not the only expenses that can arise.
(2) Interlocutory Appeals
In several cases there have been interlocutory appeals. For example, Jesse Pratt's attorneys appealed to the Court of Appeals a restriction on the length of the appellate brief. This appeal was heard by the Oregon Supreme Court. Although the costs of this appeal were not borne by the OPDS, this kind of case would normally come under their authority (Ms. Aylward mentioned that his case appeared to be paid for by a number of OCDLA attorneys). One can easily imagine other issues that might be appealed in the course of 20 years of appeals, and there are probably many issues that will arise in the future which are not presently conceivable.
(3) Cost of Remands
Huge costs can arise if the Oregon Supreme Court remands the death sentence for another sentencing trial. To date nearly 50% of Oregon death penalty cases have been remanded but, in fact, the more "recent" cases (sentences of death handed down since 1992) have not been remanded. Yet, that real possibility exists, and it is quite expensive to retry such a case at the trial court level. I have only partial figures for these retrials. The four "big" cases" where this happened (or will happen) are Rogers (Clackamas), Langley (Marion), Guzek (Deschutes) and McDonnell (Douglas). McDonnell was sentenced for a third time in Douglas County in 2003. The costs for the trial level defense of that case alone were $288,966. If we double that amount, we come up with $577,932 to retry his case.
The costs for the Langley remand, completed in 2/06, were even more extreme. Costs for defense were $732,067. If we double that amount, we have $1,464,134, though I would hesitate to double this amount, since an argument could be made that defense costs were more than prosecution costs--since it involved removal of one defense team and reassignment to another. Nevertheless, the numbers are staggering.
We don't yet have costs for the Rogers remand, which was just completed in March. Ms. Aylward's figures show that approximately 50% of trial costs are from other sources than trial attorney costs. These costs include expert witnesses, copying and printing costs, investigation costs, travel costs to interview witnesses and to bring out-of-state witnesses to Oregon to testify. Rogers' defense expended around $400,000 by 1/1/06. But, since the big expenses are incurred in the last six weeks before trial and we do not yet have those figures, we can assume that that number will rise considerably. A price tag of over $1,000,000 for the retrial of Rogers is easily imaginable.
Guzek will be sentenced for a fourth time sometime in 2007 in Deschutes County.
The state only began tracking time separately by client on 1/1/01, so it is difficult to get accurate figures on remand costs before 2001. But an estimate of $700,000- $1,000,000 for a remand seems not outside of the realm of possibility. Since some of these cases have had two or three remands, the outer limit of death penalty costs would be the incarceration costs for at least 30 years (all these defendants' cases will take more than 30 years to finish), and then triple to quadruple costs of incarceration for at least 30 years in remand expenses. Thus, in the most extreme cases, and there are more than one, the cost of the death penalty will be four to five times (or even more) more than the cost of a true life sentence for one waiving his appeals.
(4) Actual Costs of Putting to Death
After appeals have all been exhausted, there is the cost of actually putting a defendant to death. This includes costs for the state to fend off other lawsuits (which happened in 1996 and 1997) as well as the costs of overtime and training for staff to conduct the execution. We do not know what these costs will be in the future.
The empirical data is readily available to permit one to conclude that, for the defendant who has not waived his appeals, the cost to execute a person in Oregon in the "best case" scenario--i.e., when everything goes "smoothly,"--is almost twice that for a person who receives an LWOP sentence and waives his appeals. For one whose case is remanded, however, the costs can be four to five times as much as one who faces life imprisonment without the possibility of parole and has waived his appeals.
Copyright © 2004-2008 William R. Long