It’s A Gray Area:

In last week’s column we discussed the five traditional rationales for the implementation of the death penalty. But there are additional important facts that also affect the discussion.

One of those facts almost unknown by the general population is the financial cost of death penalty cases. The estimates are that they cost the taxpayer at least seven times the amount of money to have a death penalty trial, along with the accompanying appeals and writs of habeas corpus proceedings, than it would cost to try, convict, conduct the appeals for and actually keep the offenders in prison for the rest of their lives! People do not understand this fact. The cost of the extra investigators, attorneys, jury selection, court reporter’s transcripts and extra procedural safeguards is staggering!

Why is this process so complicated and expensive? As Justice Sims wrote in a concurring opinion in Bennett v. Superior Court, 146 Cal.App.4th 344, 418 (2006), as a practical matter there really are four distinct trials in death penalty cases.

The first is a trial (almost always with a jury) that addresses the possible guilt of the offender. The second trial decides the penalty of death or life without possibility of parole (LWOP) if the offender is convicted.

Then the third trial is of the jurors in the case who arrived at those first two decisions to see whether any were involved in misconduct, such as telling other jurors about their personal experiences in life.

The fourth trial confronts the trial attorneys who were involved in the case. The prosecutors are “tried” to see whether they presented their arguments unfairly or too emotionally, and the defense attorneys are “tried” to see if by chance they did not afford the offender the effective assistance of counsel on any material issue.

These trials usually take place in habeas corpus proceedings in federal courts after the state appeals have finally run their course. At this time the defense is also entitled to virtually every scrap of paper prepared by any law enforcement officer who ever had anything to do with any of the witnesses in the case.

How has this situation been allowed to get so extreme? Well, first of all we are a compassionate society, and we seem to be institutionally unwilling to allow anyone to be executed unless all avenues of innocence and mitigation have been explored.