Posted by: bridget | 2 September 2007

Death Penalty, Part II (or III?)

As previously blogged, Oklahoma outpaces Texas in terms of executions per capita; Delaware runs a very close third.  As Tully pointed out, Texas does not have the Ninth Circuit, which delays executions until the end of time.  As California is home to 36 million people, its presence (or absence) in any data set will skew the results.  Only Pennslyvania, Connecticut, and Colorado have lower execution rates; California’s execution rate is roughly 1/13th of the national average.

The Boston Globe reported that Judge Arthur Alacron, of the Ninth Circuit, has called for an overhaul of California’s death penalty system.  The state is notoriously slow to execute its prisoners:

The average wait for execution in the state is 17.2 years, twice the national figure. And the backlog is likely to grow, considering the trend: Thirty people have been on death row for more than 25 years, 119 for more than 20 years and 408 for more than a decade…. A legal challenge to the constitutionality of execution by lethal injection has put California executions on hold for the last 18 months…. California’s death row, with 667 inmates, is the nation’s largest. While 50 condemned prisoners have died of old age, suicide, or prison violence in the last three decades, only 13 have been executed since capital punishment was reinstated in 1978.

Roughly four times as many people die in prison as are executed by the State. While some people may prefer a de facto life in prison system instead of a capital punishment system, the cost differential is enormous: roughly a half-million dollars extra for the trial phase; $100,000 for appeals; and, generally, about $6.5 million per execution.  (Arguably, the death penalty saves money: those who are in prison without parole would need maximum-security cells, lifetime health care, and, interestingly, are less likely to plead guilty, as there is no benefit to avoiding a death penalty which cannot be imposed.)  Nevertheless, California has the worst of both worlds: the trial and appellate expense of a death penalty system and the lifetime prison costs of a non-death penalty system.

Death penalty stats will be adjusted for time, lack of California, and other factors soon.  Neil, be happy!



  1. I just had to post this, what will feminists think of this?!

    John Edwards speaking on his universal health care proposal…

    “He [John Edwards] noted, for example, that women would be required to have regular mammograms in an effort to find and treat “the first trace of problem.” Edwards and his wife, Elizabeth, announced earlier this year that her breast cancer had returned and spread.

    So his health care plan WOULD FORCE women (I presume on pain of losing their coverage) to visit a doctor whether they wanted to or not. Interesting.

  2. Good post. Please also post on W&L Fed Soc.

  3. TT – I was going to blog about that – saw it on WaPo. Basically, it affirms my point that positive rights violate negative rights.

    Supreme Dictator: will do.

  4. The whole enterprise becomes gloriously circular when you consider that there are at least two members of the court – two of the Justices most likely to indulge a prisoner’s attempts to delay their sentence – who are apparently ready to strike down the death penalty on the grounds that excessive waiting times on death row is unconstitutionally cruel and unusual. See Knight v. Florida, 528 U.S. 990, 995 (1999) (Breyer, J., dissenting from denial of cert); Allen v. Ornoski, 126 S. Ct. 1140 (2006) (Breyer, J., dissenting from denial of cert); Elledge v. Florida, 525 U.S. 944 (1998) (Breyer, J., dissenting from denial of cert); Lackey v. Texas, 514 U.S. 1045 (1995) (Stevens, J., dissenting from denial of cert). So you can really see the wheels turning in Stevens’ and Breyer’s minds: not for them the direct assault on the death penalty that got Justices Brennan and Marshall nowhere; they envision, it seems, a regime where prisoners can run out the clock. (And after Kansas v. Marsh, I can’t shake the feeling that Justice Souter is edging towards a Blackmun-esque declaration, although I could be way off.)

  5. Thanks, Simon, for the pointer. I had heard of prisoners claiming (with the help of the judiciary) that excessive waiting times are cruel and unusual. Theoretically, there is a REALLY good remedy: execution. Somehow, I don’t think the Justices are willing to impose such a remedy, even though the analogous constitutional claim (speedy trial) is resolved by giving the defendant a trial.

  6. Thanks for the update. Re. the waiting times being cruel and unusual: Anyone filing that type of suit should go to the front of the line. Problem solved.

  7. Ditto that, Neil.

  8. Re delays, AEDPA’s restrictions on second or sucessive habeas petitions really curtails the maximum amount of time that can theoretically be wasted by filing repeated habeas petitions, and the court’s decisions regarding retroactive application of new rules on collateral review – Teague, of course, but particularly Butler v. McKellar – ought to keep a lid on it too. So why’s California taking so long? Is it a deliberate state policy to just let prisoners sit on death row – they don’t want to abolish the death penalty, they just don’t want to carry it out?

  9. Simon,

    I think that is some of it. The California Supreme Court has original jurisdiction for death penalty cases, so there is a huge backlog. They also don’t have enough public defenders (and, apparently, the $140/hour salary isn’t enough to persuade lawyers to take up the cause), and, for the past 18 months, executions have been held up by a challenge to lethal injection as a method of execution.

  10. Didn’t that argument – about lethal injection – recently bite the dust in Missouri? I forget the case name now, but it doesn’t auger well for the idea.

  11. Simon,

    Yep; the Eighth Circuit upheld the procedure:

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