The lethal drugs pumped into Death Row inmate Dennis McGuire’s veins cost less than $50 but the taxpayers paid far more than that to defend and prosecute him through a trial and layers of appeals over decades.
The bill was $600,000 just to house him in prison for 24 years — made more expensive because he was in high-cost lockup on death row for much of that time. Add in the cost of litigating his case in county, state and federal court as he fought his execution and taxpayers may have been on the hook for $1 million or more.
Even in death, his case is costing taxpayers. McGuire, 53, was executed Jan. 16 with a previously untested combination of lethal drugs. His family has filed a lawsuit against the state claiming that McGuire’s gasping and choking during the 26-minute execution was a sign that it was cruel and unusual punishment.
Keeping him alive may have been cheaper. Studies in other states show that the cost of executing a killer far exceeds what the price tag for simply locking the offender up for the rest of his or her natural life.
And in Ohio that price tag is likely to increase.
An Ohio Supreme Court and Ohio State Bar Association task force studying the death penalty will this spring recommend the biggest overhaul of Ohio’s capital punishment statutes since they were adopted in 1981.
“It’ll be more expensive,” said retired 2nd District Court of Appeals Judge James Brogan, who chairs the task force. “If you’re trying to ensure innocent people aren’t executed, you’re not likely to find a less expensive way of doing it.”
Nationally, support for the death penalty has been slowly eroding, though a majority still support it. A Quinnipiac University poll last week found 68 percent of Ohioans support capital punishment, but the percentage dropped considerably when respondents were given a choice of life in prison without parole. When presented with that option, about the same percentage favored death as life in prison.
Virtually everything connected to the death penalty carries a high price tag.
An investigation by this newspaper documented close to $17 million in annual costs associated with Ohio’s death penalty. And that number is a fraction of the total cost. County prosecutors, the courts and the state prison system do not specifically track expenses associated with death penalty cases in Ohio. That would be millions in expenses right there.
“Nobody in our state can tell you with a straight face what it costs,” said Kevin Werner of Ohioans to Stop Executions. “If there was a tallied number of here is what we have spent on the death penalty over the last 30 years, I think that number would be so gigantic that people in the state would say ‘Forget that.’”
The bar association task force specifically steered clear of the questions of cost and abolishing the death penalty and instead focused on safeguards to make sure defendants receive fair trials with effective legal representation.
The panel is expected to recommend to legislators key changes: barring executions of seriously mentally ill offenders, establishing a statewide system for representing indigent defendants, requiring strong evidence such as DNA or a videotaped, voluntary confession before a death sentence can be imposed and more.
Ohio Supreme Court Justice Paul Pfeifer, who co-authored the death penalty law as a state legislator, now opposes capital punishment, in part because of the cost. He said death penalty cases soak up critical resources to the detriment of other cases.
“We see literally thousands of prisoners’ hand-written appeals because the public defender can’t cover them,” he said. “I think the greatest cost is for defendants in other crimes who may be improperly in prison. They can’t get good legal assistance because so much of the resources of the public defender’s office is devoted to defending the death penalty cases.”
Staunch death penalty supporters, including Hamilton County Prosecutor Joe Deters, say the problem is the process takes longer than it should.
“(Death penalty cases) cost more because it is dragged out as long as possible. Every continuance is requested. Every motion there is more and more requests for delay. And the people that are causing the delay use the cost of death penalty litigation as a reason to get rid of it,” said Deters, who sits on the Supreme Court’s death penalty task force and will likely disagree with some of its key recommendations.
“What they’ve done is make a bunch of recommendations that would make litigating this stuff so onerous and so lengthy almost to the point of nonsensical that it will effectively end the death penalty in Ohio,” he said.
Death Penalty Information Center Executive Director Richard Dieter said studies have repeatedly found that death penalty cases require more court appeals, more attorneys and more expert testimony — in both state and federal court — over decades, all the while death row prisoners are in a maximum security lockup.
“I think the average person thinks it through on the spot and thinks, ‘Forty years in prison, meals, health care, that’s got to cost more than a few lawyers,’” he said. “But when you do the math, it comes out differently.”
Some of costs would be borne anyway because the offender would still be prosecuted, sentenced and incarcerated for murder. But defendants convicted of murder usually get just one appeal paid by the government. Those sentenced to death are entitled to layer after layer of appeals that take decades to complete.
Montgomery County Public Defender Rudy Wehner said the high stakes — putting someone to death — make the process both expensive and necessary.
“It’s an exponential increase in expenditures, it’s an exponential increase in hours, it’s an exponential increase in every motion, every filing you make in court, every hearing above and beyond trials, expert witnesses,” Wehner said.
Of the 53 Ohio inmates executed over the past 15 years, the average stay on Death Row was 17.8 years. Inmate Gregory Esparza has been there the longest: 10,869 days, or nearly 30 years. Esparza entered Death Row in 1984 as a 21-year-old.
Most of the 138 inmates sentenced to death are held at Chillicothe Correctional Institution, where it costs on average $16,509 to keep one prisoner for a year. But Death Row inmates cost more since they are in single cells and guarded with more staff.
The DRC system houses 450 offenders sentenced to life in prison without parole. Although they committed heinous acts, their security levels vary so some are incarcerated in less expensive settings than what is required for Death Row inmates.
The average age of the incoming Death Row inmate is 37. Of the 53 Ohio inmates executed in the past 15 years, the average time between sentence and execution was 17.8 years.
Appeals lengthen the timetable.
In a capital case, the appeals run on two parallel tracks in state courts: a direct appeal to the Ohio Supreme Court and a post-conviction petition that starts at the trial court, advances to the state Court of Appeals and stops at the Ohio Supreme Court. Once those are exhausted, the case goes to the U.S. District Court, the U.S. Sixth Court of Appeals and the U.S. Supreme Court.
After the court appeals, the Death Row inmate can ask the governor for clemency. The governor and his staff carefully review clemency requests from Death Row, consuming hours of time and resources.
Most of the time, the government is paying attorneys to represent the state and the defense from start to finish.
In one of the most comprehensive studies, the Urban Institute looked at the cost of Maryland’s death penalty in 2008 and found the average cost per case — including investigation, trial, appeals and incarceration — was $3 million, compared to $1.1 million for a capital-eligible case where prosecutors didn’t seek the death penalty.
Ohio has 138 people on Death Row. If each inmate cost the state $3 million during their lifetimes, the total cost would $414 million.
County prosecutors tend to seek the death penalty in cases that are particularly heinous — the so-called worst of the worst.
Last year, Montgomery County Prosecutor Mathias Heck Jr. sought the death penalty for both Joshua Sellers and Jamie Shaffer for the 2011 stabbing death of Lisa Spinks of Miamisburg, whose body was placed on railroad tracks and severed by a moving train.
Sellers and Shaffer pleaded guilty in exchange for life sentences, saving the state the cost of a trial. But even so, defense attorney fees tallied $73,826.
Court records show why. Defense attorney Marshall Lachman said he reviewed thousands of pages of records, had 50 face-to-face meetings with his jailed client, drafted more than 60 motions and argued the case in front of a three-judge panel.
Another high-profile death penalty case racked up $61,314 in expert witness fees alone. China Arnold faced the death penalty in each of her three trials. She was eventually convicted of murdering her 28-day-old baby daughter by putting her in a microwave in August 2005. Arnold, now 33, is serving a life sentence at Dayton Correctional Institution.
The case against Dennis McGuire in Preble County started in 1989 when Joy Stewart, who was seven months pregnant, was raped and stabbed to death. McGuire, who was represented by Dayton attorney Dennis Lieberman, was tried in 1994. The defense side of the case involved dozens of motions, expert witness fees, mitigation fees and DNA testing expenses – adding up to more than $40,000.
Lieberman said county prosecutors likely spent at least as much.
County records show the annual budget for the prosecutor’s office in 1995 was $374,657.
“There’s a heightened awareness of death penalty cases,” Lieberman said. “They look at it under a magnifying glass. The investigations are usually more thorough, more complete, just because it’s a death penalty case.”
McGuire’s case didn’t end at trial. He exhausted his appeals in state and federal court and asked for clemency – with the public paying the bills at each step.
Preble County Prosecutor Martin Votel said his predecessor offered to plea bargain with McGuire for a life sentence, largely because prosecutors were uncertain whether the jury would understand the then-new DNA evidence. McGuire turned it down.
Votel said the cost of prosecution is not a consideration when debating whether to seek a death sentence.
“If you believe that’s just, and I do under the appropriate circumstances, then the delay in executions and the additional cost is appropriate,” he said.
The government does not pay high rates for defense attorneys. In some counties the hourly rate is as low as $30 while the statewide average is $61 for trial work. Most counties cap the maximum that will be paid in defense attorney fees for trial work from a statewide low of $5,000 in Champaign County to a high of $75,000 in Montgomery and several other counties.
Still, it adds up. Over the past eight years, appointed defense counsel on death penalty cases have been paid $17.8 million for 295,960 hours of work, according to Ohio Public Defender Tim Young’s office.
‘The black hole of justice’
Deters believes the costs can be brought down by putting timelines on federal court cases. He believes federal judges who are opposed to the death penalty simply don’t act on cases, letting them fall into “the black hole of justice.”
Since he first became county prosecutor in 1992, not a single person sent to Death Row by Deters was executed. Some have died of natural causes.
“That’s more likely to happen than an execution,” he said. Hamilton County has accounted for 10 of the 53 executions since executions were resumed in 1999.
According to Deters, Ohioans are getting a return on their investment in the death penalty.
“They’re getting justice,” he said. “They’re getting a predator removed from society for good.”
Heck said his decision to seek the death penalty is motivated by the circumstances of the crime, the history of the defendant, the defendant’s mental capacity and any other mitigating factors.
“We are concerned with representing the victims of crime and the community, ensuring that justice is served,” he said. “Cost is never a consideration.”
But Werner of Ohioans to Stop Executions said the money spent on death penalty cases could be put to better use.
“When we know there are roughly 4,000-6,000 unsolved homicides in the state of Ohio, I would argue the better use of those resources is to go out and find the people responsible for those crimes, and not focus a tremendous amount of resources on a relatively small population that is safely kept away from harming anybody else again,” said Werner. “What we have to think about is what we give up to have this system.”
Joe D’Ambrosio gave up 22 years of his life.
D’Ambrosio, 52, is one of three Ohioans who have been exonerated after spending years imprisoned on Death Row.
Convicted in 1989 of stabbing to death a 19-year-old in Cleveland, D’Ambrosio was finally exonerated in 2012 after his attorneys had argued for years that he was wrongly accused.
“The things that I’ve lost I can never get back. I lost everything from an education to having a decent job to having a family and children,” said D’Ambrosio, who now works as a handyman at a Cleveland church. “When I apply for a job, even though I’m exonerated and it’s expunged, how do I explain a 22-year gap in my work record? It’ll haunt me for the rest of my life.”
Jim Otte and Kyle Nagel contributed to this report.
68 percent favor the death penalty
26 percent oppose it
If life in prison is an option:
47 percent favor the death penalty;
36 percent favor life in prison with no chance of parole;
12 percent favor life in prison with a chance of parole.
Source: Quinnipiac University poll, February 2014
A study in Kansas this year found that state’s Supreme Court Justices spend 20 times more hours on death penalty appeals than on non-capital appeals; the Department of Corrections spends than twice as much ($49,380 versus $24,690) to house a death-row inmate per year as to house a general-population inmate; and capital cases take more than twice as many days in district court as non-capital cases.
A 2013 study in Colorado found that capital proceedings require six times more days in court and take much longer to resolve than life without parole cases.
A 2013 study in Oregon found “the average cost of defending a death penalty case at the trial level over the last ten years was $438,651, while the average cost of defending a non-death aggravated murder case at the trial level was $216,693.
A 2012 study in California found the cost of the death penalty in that state has totaled more than $4 billion since 1978.
A 2012 study in Nevada found the 80 pending capital murder cases in Clark County, home to Las Vegas, will cost approximately $15 million more than if they were prosecuted without seeking the death penalty.
A 2010 study found the federal government spends on average $620,932 defending a federal death penalty case, about 8 times that of a federal murder case in which the death penalty is not sought.
A 2010 study in Indiana found the average cost to a county for a trial and direct appeal in a capital case was over ten times more than a life-without-parole case. The average capital case resulting in a death sentence cost $449,887, while the average cost of case in which a life-without-parole sentence was sought and achieved was only $42,658.
A 2009 study in North Carolina found the state could save $11 million annually if it dropped the death penalty.
A 2008 study in Maryland found that the lifetime cost to taxpayers for the capitally-prosecuted cases in Maryland since 1978 will be $37.2 million for each of the state’s five executions since the state reenacted the death penalty. The study estimates that the average cost to Maryland taxpayers for reaching a single death sentence is $3 million — $1.9 million more than the cost of a non-death penalty case.
Source: Death Penalty Information Center
By the numbers:
Ohio has 165 active dealth penalty cases. Here are some of the annual costs associated with executions:
$842,000 a year for seven attorneys and two paralegals in the Ohio Attorney General’s capital crimes unit;
$1.35 million a year for 14 attorneys and four other staff in the Ohio Public Defender’s death penalty division;
$2.5 million a year paid to appointed defense attorneys to represent indigent Ohioans in capital cases;
$3.88 million budget for public defender attorneys on capital cases in federal court;
$8.3 million in prison costs for 138 Death Row inmates, though that figure is likely higher since they are held in single cells and under tight security protocol.
Explore the death penalty issue with a history of executions, cost information and opinions from all sides on our interactive page at MyDaytonDailyNews.com.]]>