Information for the Senate Judiciary Committee on the Death Penalty
Barb Hinton, Legislative Post Auditor
January 12, 2005
Mr. Chairman and members of the Committee, thank you for allowing me to appear before you to provide some brief information about our December 2003 audit on the costs incurred for death penalty cases. This information may be of use as you discuss SB6 or other death penalty legislation that may come before you this session.
The main audit question was, “How does the cost of death penalty cases in Kansas compare with the costs of cases involving non-death sentences?” During this audit, we obtained and compared estimated cost information at both the State and local levels for 22 cases. Actual cost figures for death penalty and non-death penalty cases in Kansas don’t exist. Our main findings:
1. Cases in which the death penalty was sought and imposed could cost about 70% more than cases in which the death penalty wasn’t sought. A summary of our cost analysis for the 22 cases is shown below:
Total Estimated and Projected Costs, by Case Type |
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Death Sentence Sought & Given (7 cases) |
Death Penalty Sought - Sentenced To Prison (7 cases) |
Death Penalty Not Sought (8 cases) |
Total Costs for Group |
$10.6 million |
$6.3 million |
$6.3 million |
Most-Expensive Case |
$2.4 million |
$1.1 million |
$1.0 million |
Least-Expensive Case |
$1.1 million |
$0.7 million |
$0.6 million |
Median Cost for a Case |
$1.2 million |
$0.9 million |
$0.7 million |
Source: LPA survey of the parties involved in each type of case, and calculated projections. |
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2. Death penalty cases tend to have higher costs at the trial and appeal stages. Some factors are shown in the table below:
Factors That May Make Death Penalty Cases Unique or More Expensive:
Factors That May Make Death Penalty Cases Unique or More Expensive |
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Factors That Can Increase Costs |
What We Saw in Kansas: |
Investigation Phase More extensive investigations & forensic testing |
Reported costs for local police/sheriff and KBI generally were higher for the death penalty cases. Death penalty cases are usually the worst-of-the-worst crimes. |
Pre-Trial and Trial Phase: More defense and prosecuting attorneys |
7 different defense attorneys have worked on the trial and appeal of the 1st death penalty case. |
More motion filings and hearings |
More than 200 motions were filed in a single case requiring the judge to hold hearings on evenings and weekends. |
Change of venue surveys and travel costs |
Change of venue costs were reported on 9 of 14 death penalty cases and none of the 8 non-death penalty cases. |
Extensive jury selection |
Death penalty cases voir dired an average of 230 jurors compared to 89 in non-death penalty cases. |
Lengthier trial, interrogations, and deliberations |
Death penalty cases averaged 28 days compared to 9 days in non-death penalty cases. |
More expert witnesses |
Defense expert witness costs were reported in 11 of the 14 death penalty cases and only 3 of the 8 non-death penalty cases. |
Separate sentencing trial |
This phase added an average of 6 extra days. |
Extensive investigations for mitigating evidence |
Contract mitigation specialist costs were reported in 5 of 14 death penalty cases and none of the non-death penalty cases. |
More psychiatric and medical evaluations |
Defense psychiatric costs were reported in all 14 death penalty cases, and 2 of 8 non-death penalty cases. |
Appeal-Related Phase: More appealable issues |
In the direct appeal to the Supreme Court, the 1st death penalty case filed a 600 page brief. The Supreme Court normal limit is 50 pages. |
More cases reversed or remanded |
To-date, the first death penalty case was sent back for re-sentencing due to faulty jury instructions (Kleypas). The appeal of the second case (Marsh) resulted in the Supreme Court recently declaring the law unconstitutional. |
Incarceration / Execution Phase Average 11 years until execution |
The 1st death penalty case was originally sentenced in 1998, yet the defendant has not been executed. |
Source: National Center for State Courts Research Model for Determining Death Penalty Costs, and LPA survey of the parties involved in each type of case. |
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The second question this audit addressed was, “Are there steps Kansas could take to reduce overall costs in capital punishment cases?” Our main findings:
1. Because much of the process involved in trying a death penalty case is prescribed by law or the U.S. Supreme Court, there are no opportunities for eliminating steps in the process.
2. The following could save costs:
a. providing for a true life sentence without the possibility of parole (the 2004 Legislature took this action)
b. creating a specialized group of judges or law clerks who may be able to more efficiently handle death penalty cases
c. ensuring that the State Board of Indigents’ Defense Services has adequate staffing to avoid hiring contract attorneys at much higher cost