Going for the gold on death penalty

By James Alan Fox , May 10, 2004

AFTER MONTHS of careful deliberation, an 11-member expert panel appointed by Governor Mitt Romney advanced a set of recommendations to achieve his goal of designing an airtight, virtually foolproof system of capital punishment for the "worst of the worst" offenders. In his endorsement of the panel's report, the governor praised the recommendations as the "gold standard" for the administering of the death penalty. His words were never more prophetic and true. Apparently, price was no object.

In a narrow sense the committee successfully accomplished its task -- limiting the scope of death-eligibility to a select few (for example, terrorist murders, multiple murderers, and cop killers) with layer upon layer of procedural safeguards to minimize the chance of a wrongful execution. According to the proposals, the "worst of the worst" offenders are to be afforded the best legal services that our tax dollars can buy.

Should the proposals become law, the Commonwealth would pay for a defense team chosen from a list of particularly experienced attorneys and given wide latitude in hiring consultants and expert witnesses, a jury trial more lengthy than most, a sentencing process before a different jury which must find "no doubt" with regard to the defendant's guilt, a review by a group of independent scientists plus oversight by a new death penalty review commission, and several rounds of state and federal appeals also with superior legal representation.

Composed of seven attorneys and four forensic specialists, the governor's blue-ribbon panel included not a single economist, budget analyst, policy specialist, or criminologist who might have considered cost. While reviewing thousands of pages of research, the panel may have overlooked some careful studies about financial implications.

In December 2003, for example, a Post-Audit Committee for the Kansas Legislature released an analysis of the comparative costs of prosecuting capital and noncapital murder cases. On average, capital cases were three times more costly to investigate, 16 times more costly to try, and 21 times more costly in terms of appellate review.

Overall, even after accounting for the time-limited incarceration costs, death penalty cases cost the state $1.26 million compared with $740,000 for noncapital murder cases. This disparity would be far greater in Massachusetts in view of the extraordinarily expensive safeguards that have been recommended.

Not only does prosecuting a capital murder case cost substantially more than noncapital cases, but often these additional resources are expended when unsuccessfully seeking the death penalty. Should the sentencing jury harbor doubts or recommend life rather than death, or should an appellate court overturn a death sentence at some juncture, there is no refund for the extra expenses incurred by the state. In Florida, for example, a state where death sentences are common and capital trials are even more common, the cost of prosecuting all capital crimes -- that is, regardless of the sentencing outcome -- has been estimated at $24 million per actual execution.

Romney's focus on the "worst of the worst" is also the rarest of the rare. Not only does Massachusetts consistently have one of the nation's lowest homicide rates (and the lowest among urban states), but the selected classes of murder targeted for the death penalty are exceptionally infrequent.

Consider, for example, one special category on Romney's list: killing of a police officer. From 1998 to 2002, two law enforcement officers were killed feloniously in Massachusetts while in the line of duty.

Although tragic for their families and the entire law enforcement community, the prevalence of this type of homicide is hardly at a level that suggests the need to change sentencing policy.

Coming at a juncture when the state's murder rate is low and its fiscal constraints have forced cuts in many crime fighting initiatives, the timing of this proposal is curious. Is there more at stake for Romney in making good on his campaign promise to bring back capital punishment in Massachusetts?

The death penalty has long been a powerful, albeit illegitimate, litmus test for political toughness. Even though the death penalty does not save money, not deter offenders or not necessarily bring closure for grieving families, it does one thing for certain: It wins votes.

In 1988, Governor Michael Dukakis stumbled badly on the death penalty issue, arguably costing him the presidential election. Could restoring capital punishment in this liberal, Democratic state -- accomplishing what others before him fail to do -- be seen strategically as a major step toward Romney's aspirations for the White House? If so, it would be a sad and financially crippling legacy for him to leave behind.

James Alan Fox is the Lipman Family Professor of Criminal Justice at Northeastern University.