Executing the Guilty Costs Too Much

LINDA R. MONK

November 09, 1993|By LINDA R. MONK

ALEXANDRIA, VIRGINIA — Alexandria, Virginia.--Just as Maryland was dusting off its gas chamber for the first time in 32 years, the state's Court of Appeals intervened. It is considering claims made by the relatives of confessed three-time murderer John F. Thanos that he was mentally incompetent to forgo appeals in his case. To many citizens, this is precisely the problem with the death penalty: Because of the interminable appeals process, it takes too long for the guilty to be executed

Kirk Bloodsworth, understandably, sees this issue differently. Wrongly sentenced to death in 1984 for the murder of 9-year-old Dawn Hamilton, the Maryland man was released earlier this year when DNA evidence exonerated him. Said Mr. Bloodsworth recently on ''Eye to Eye,'' a CBS News program: ''This could happen to anybody.''

In fact, it's happened to three other people this year alone. Since 1973, a total of 43 defendants sentenced to death have subsequently been acquitted, pardoned or had the charges against them dropped. And professors Michael Radelet and Hugh Bedau argue in their book ''In Spite of Innocence'' that at least 23 defendants in this century were executed before their innocence was later proved. Thank God Kirk Bloodsworth wasn't one of them.

The problem for our society, independent of the moral objections to capital punishment, is whether it is possible to devise a system that can execute John Thanos but not Kirk Bloodsworth -- and how much we are willing to pay for it. Duke University released a study this year estimating that in North Carolina the cost to the state per execution, including the expenses for capital cases that did not result in executions, is about $2 million.

This figure includes savings in prison costs -- life without parole is priced at an additional $300,000 (20 extra years times $15,000 a year) -- but the state still is out over $1.5 million. Maryland conducted a similar study in 1985 with more modest results, but it was not as comprehensive in scope because it included only trial costs.

The reason that death-penalty cases are so expensive is that ''death is different.'' To inflict a punishment that is irreversible, our legal system requires ''super due process''-- including a bifurcated trial and multiple levels of appeal. Yet the system still makes mistakes. Ask Kirk Bloodsworth.

One of the most problematic areas in death-penalty litigation is the woeful inadequacy of court-appointed counsel for capital defendants. The National Law Journal in 1990 found that, in the six states it studied, the trial lawyers representing indigent death-row inmates had been disciplined from 3 to 46 times more than their colleagues. Such statistics, according to Stephen Bright of the Southern Center for Human Rights, create a death-penalty system in which ''people aren't sentenced for committing the worst crimes; they're sentenced for having the worst lawyers.''

Compounding the problem is the inadequate compensation provided court-appointed counsel in capital cases. As the Fifth Circuit of the U.S. Court of Appeals said in 1992 when it overturned the conviction of Federico Macias, who like Kirk Bloodsworth was eventually found to be innocent: ''The state paid defense counsel $11.84 per hour. Unfortunately, the justice system got only what it paid for.''

One way to reduce the expense of death-penalty litigation is to limit the appeals process. Congress is now considering legislation that curbs the number of indirect federal appeals, known as habeas corpus petitions, available to persons convicted in state courts. The trade-off is that some legislators are also seeking more funds to improve the quality of legal representation in capital cases.

According to a 1991 study conducted by James S. Liebman of Columbia University Law School for the Senate Judiciary Committee, 40 percent of state death-penalty convictions are overturned in the federal courts. Such a high reversal rate indicates that the drawn-out appeals in death-penalty cases are not merely frivolous. If the federal government restricts the number of appeals, many legislators argue, it must at least give defendants a ''sporting chance'' at trial by paying for better lawyers.

The fact is, it's expensive to kill people. And most of that expense -- and delay -- comes from trying to devise a legal system that doesn't kill innocent people when it tries to execute the guilty ones. Is that really a value we want to give up in the name of efficiency or economy? The cheapest solution would be to abolish the death penalty altogether; revenge just costs too much.

The 43 persons condemned and later found innocent since 1973 represent about 1 percent of the death- penalty convictions during that time. The question is, who is willing to be in that 1 percent? Who is willing to be Kirk Bloodsworth?

Linda R. Monk is the author of ''The Bill of Rights: A User's Guide.''

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