Why the Death Penalty Costs So Much

“Other states are trying to abolish the death penalty,” quipped Texas comedian Ron White, “my state’s putting in an express lane.”

Texas has been known for its high number of executions since the death penalty was reinstated in 1976, having killed off some 518 offenders to date. Proponents of the death penalty push for a shorter appellate process and expedited execution, while those opposed to the “murder for murder” policy advocate life and promise lower costs on the taxpayers.

Capital trials involving the death penalty are vastly different from their non-death counterparts, beginning with investigation and continuing through jury selection and the trial. The trial is likely followed by the appellate process. 

Each part of the process carries a hefty price tag, and with an average of 10 years in appeals while inmates are on death row, costs mount to the millions.

Locally, the last death penalty case tried in Tom Green County was the case of Luis Ramirez in 1999, who was sentenced to death and executed some six years later in 2005. Assistant District Attorney Bryan Clayton served as second chair for the prosecution in that case, marking his fifth death penalty case since 1991.

He explains the differences between a death penalty capital murder trial and what he terms a “mini-cap”, or capital murder where death is waived as beginning with jury selection, notes differences in the punishment phase of the trial, and compares the preparation for trial through the appellate process to a marriage between a prosecutor and a case.

Voir Dire

In the case of Luis Ramirez, Clayton estimates that he and Steve Lupton worked intermittently on preparing for trial for about a year before jury selection began. In the months preceding the trial, Clayton said, both he and Lupton were completely consumed by the case and worked solely on it through the sentencing.

The death penalty is not sought in all capital cases, and a judge cannot assign it; only a jury may hand down the punishment of death, and the jury selection process varies significantly in a death penalty case from a felony case.

Allison Palmer, 51st District Attorney, explained that in a typical felony case, roughly 45-75 potential jurors are called in for the jury selection process, voir dire. During voir dire, a judge addresses the jury, and both the state and defense do the same, while all 45-75 individuals are seated in the courtroom. The process generally takes a few hours and is finished by the afternoon.

In a capital case where the state is seeking the death penalty, a couple hundred potential jurors are called in and are given a written questionnaire that probes into their personal lives, experiences and preferences in an attempt to ascertain whether a person can be fair and impartial.

Both the state and defense usually submit their own written questionnaire and attempt to come to an agreement on what should be included from both sides, with the judge making the final ruling. Some of the questions are constant, while others are case-specific, such as questions about alcohol, should the substance be involved in the offense.

“The questions really delve into personal experiences, personal experiences with law enforcement, personal feelings on the death penalty for sure, involvements with the law and involvements with the legal system,” Palmer said.

The number of pages varies, but averages at about 14, and includes open-ended, multiple choice, yes/no and scale-type questions.  The questionnaire is completed in court and can take a while to complete.

“You can never commit a juror to your set of facts, but you can check their feelings on different things you know would come up in the trial,” she said.

After the questionnaire is completed, jurors are taken individually to speak with the judge, state and defense attorneys. The entire process equates to weeks rather than hours.

“Voir dire may last three to four weeks,” Clayton said. “You try to get eight to 10 prospective jurors interviewed per day and you are worn out because you spend probably each side over an hour with each one. Physically, it takes a toll on you. You can lose the case as a prosecutor in voir dire just based on a random draw of the jury, what kind of people you got.”

The Trial

The real work of a death penalty trial takes place in the punishment phase, Clayton said. Guilt or innocence should essentially be open and shut, he said, because if there’s doubt in that portion there will likely be a real battle when it comes to assessing punishment.

“The hardest part? The fact that you’re asking 12 people to sit in the same courtroom with an individual and get them all 12 to agree unanimously and beyond a reasonable doubt that the evidence is sufficient to terminate that individual’s life,” he said. “It’s hard enough to get 12 people to agree where to go to lunch, much less to kill somebody.

Clayton explained that the difficulty lies with convincing the jury that a person’s past conduct warrants death, as one of the primary questions juries are to consider is whether or not they believe the individual is going to continue to be a threat to society both between and beyond prison walls.

“We’re asking them to look into a crystal ball,” he likened. “That’s pretty scary right there. One dissenting vote and it’s over, it’s a life sentence.”

In order to clear up the crystal, both prosecutors and defense attorneys spend an enormous amount of time, resources and effort calling witnesses and experts in the punishment phase after conviction.

First-degree murder trials differ from other felony cases in that the defendant’s personal lives are presented to the jury in much greater detail, allowing them to get an idea of what kind of person the defendant is. In a capital murder case, where the death penalty is sought, that attention is amplified, and investigators and private detectives are hired for both sides to track down information and witnesses that paint a picture of the defendant.

Former teachers, pastors, loves, cousins and friends are just some of those who may be called to the stand, as well as psychologists, investigators, law enforcement officers and technicians with specialized training.

Mental health becomes a big deal in capital cases because the Supreme Court says a defendant who is mentally retarded cannot be sentenced to death. Clayton said that once a prosecutor decides to pursue the death penalty, it isn’t uncommon to see a defendant’s IQ suddenly drop 10 points.

“A trial is called a trial because that’s what it is,” Clayton said. “A trial is a test; it’s a test of the facts. And if you’re going to put someone down in a hole, six feet under, you better be damn sure you’re doing the right thing.”

Married to the Case

Although the men Clayton prosecuted were all sentenced in the ‘90s, the work on his end was not finished until the fluids flowed and they were pronounced deceased. All death penalty cases are appealed, reviewed and scrutinized, lending to the lengthy period between sentencing and execution and some being overturned. Others “bounce around the appellate courts” for years or even decades, Clayton said, some resulting in a new trial.

“You see cases very occasionally get reversed,” he said. “That tells me the review system works. Not all of the people the cases are reversed on are innocent. That just means their trial may have been flawed or some single piece of evidence may be flawed. Do they deserve a new trial because of that? Yes. Will the outcome be different? I don’t know, but that’s what that review process of for.”

In 1988, Ted Calvin Cole, also known as the “dog-leash killer”, was sentenced to death by a jury in Tom Green County. Former DA Steve Lupton tried the case. After “bouncing around the appeals courts” for 20 years, Cole was granted a new trial in April 2007 and was sentenced to life without parole.

“If you seek the death penalty, you are going to be married to that case not only for the time it takes to get it to trial, but the appellate end of it may go on for years and years and years,” Clayton reflected. “Most of them, you have to realize that you’re committing a huge, enormous block of time. We don’t just scan the file, walk in and say what’s on our mind.”

Clayton’s first capital case involving Kenneth Bruce took 12 years to run its course from sentencing to execution. The Luis Ramirez case took six.

“We have several phases [of appeals] and each phase can have several, kind of bumps in the road,” he said. “The first phase is all people who are convicted and given the death sentence following a capital murder trial have an automatic direct appeal to the Texas Court of Criminal Appeals in Austin. It’s automatic.”

Assuming the conviction is affirmed on direct appeal, the post-conviction process branches off in two directions, Clayton said. The first branch is a Writ of Habeas Corpus under the state courts; the second branch is a Writ of Habeas Corpus under the federal courts. These may run parallel.

“A habeas corpus petition is not like a direct appeal,” Clayton explained. “A direct appeal deals solely with legal issues in the conduct of the trial, procedural issues. When you get into the (state court) writ process, that usually focuses more on factual things, new evidence, conflicting evidence, undiscovered evidence at time of trial, ineffective assistance of counsel at trial, just a whole wide variety of things.”

Clayton said the state-level habeas corpus writ is ultimately decided in Austin, after the district or trial court may or may not have a hearing to develop the new evidence.

At the federal level, the writ of habeas corpus functions much the same as the state-level petition, but operates on a higher level. The decision at the federal level takes place in federal district court and is reviewable by the U.S. Court of Appeals in New Orleans, and their decision is potentially reviewed by the U.S. Supreme Court, Clayton explained.

“So you can see it’s a multi-layered, multi-leveled deal. Our office does the direct appeal. I have done them, I’ve argued twice at the Court of Criminal Appeals on direct appeal. I did Luis Ramirez’s. I went down and did that one myself.”

Ramirez’s conviction was affirmed on direct appeal, and he was appointed a new attorney, who filed a writ of habeas corpus in Tom Green County stating he had new evidence. Once again, Clayton and Lupton had to argue against the evidence at a hearing held in Judge Woodward’s court, who sent his findings to the attorney general’s office, which handled the habeas petition to the Texas Court of Criminal Appeals.

“He was trying primarily the new evidence tag,” Clayton said of Ramirez’s petition. “He was claiming they had found some magical alibi witness and they brought the person in and we cross-examined him. It was very nebulous and the judge turned it down. I think they were (also) trying to raise some questions about the co-defendant’s confession being used against him…”

The speed with which Ramirez made it through the appellate process has been described as “unprecedented." The average time on death row in Texas is 10.74 years. In that time, inmates are going through the appellate process, but there are also changes occurring outside prison walls in that time. District attorneys and attorneys general may change over and different attitudes may prevail. All of these things can affect and extend the process.

“Even if you are successful at trial, it doesn’t mean he’s going to be executed any time in the foreseeable future,” Clayton warned. “Certainty of a life sentence is oftentimes much better and, frankly, in some ways, I think it is an even more severe punishment. [Death penalty cases are] a severe commitment of time, money, resources, energy and no real certainty to it.”

Big Bucks

Much has been said about the exorbitant cost of trying a death penalty case over a capital or first-degree murder trial in which death is waived, leaving many to wonder how it could cost more to kill somebody than to keep them alive in prison.

The Texas Department of Criminal Justice website provides information on death row inmates, which states that the average age of executed inmates is 39 years old. The average time spent on death row is 10.74 years, making offenders on average between 28 and 29 at the time of incarceration.

A 2011 study conducted by the Vera Institute of Justice states that the average annual cost of housing an inmate in Texas is roughly $21,390. This equates to $58.60 per day. If an inmate were 28 years old when he entered the prison system and lived for 40 years until death, the average cost of his incarceration by Vera’s measure would equal $855,600.

Court documents from both the Ramirez and this year's Salazar cases reveal vastly different numbers as pertain to costs of legal proceedings in preparation for and during those trials.

Costs begin to accrue with investigation, which includes both the cost of detectives, psychiatrists and travel to meet witnesses, as examples. According to financial documents available at the District Clerk’s Office, investigator fees in the Ramirez case came to nearly $32,000. There were no records readily available for psychiatrist and other expert fees.

Note: Due the age of the Ramirez case, not all documents have been filed electronically. The files are currently stored in roughly 15 separate legal boxes, and due to time constraints, could not be researched thoroughly. Information on all payments made to attorneys, investigators, witness travel, the jury and prosecutors (salary) could not be obtained. The numbers listed here reflect what was available on the criminal docket sheet.

The payments made in the recent Salazar trial to investigators was exponentially lower at $1,612.50. A forensic psychologists bill from the Salazar case was paid in the sum of $3,437.50; and payment to the defense attorney ran $10,269.98. The grand total, including court costs but excluding the prosecuting attorney’s salary, came to $15,753.98. Salazar was 32 years old when convicted.

By comparison, defense attorneys’ fees in the Luis Ramirez case came out to $145,651.03. However, rather than writing checks to one attorney as was the case in Salazar’s proceedings, two attorneys handled the trial of Ramirez and a new attorney was appointed during his habeas petition, who also had an assistant. Those attorneys officed in Midland and of course had to be briefed by previous counsel, as well as travel to and from San Angelo during the process.

“There are two sets of defense attorneys typically representing an offender—these days in Tom Green there are—but typically in the past there has always been a first chair and a second chair,” Palmer explained. “Attorneys’ fees alone will go beyond $100,000. Then there are investigators that they hire that the courts will have to pay if a capital murder defendant is indigent, which most are.”

Because investigation is so thorough in a death penalty case, investigators will often have to travel out of town or out of state if the defendant has lived anywhere else throughout their lives. If a witness is found beyond the county, travel costs of bringing that witness to trial are also added to the county’s bill.

“Like Luis Ramirez…” Clayton said. “We brought in witnesses from Las Vegas, Nevada that knew things about him, we brought in witnesses from all around this area, the defense brought in witnesses from other states and we brought in experts, all of it at great, tremendous cost. I would suggest to you that in today’s dollars one could not prosecute a death penalty case for anything less than $1 million. That’s conservative.”

Once the trial begins, costs begin to compound. Back when Luis Ramirez was tried, the payment received for jury duty was a meager $6-7, Clayton said. Now, potential jurors are paid $40 per day, and while a pool of 45-75 may be expensive on a typical felony case for day one, voir dire generally ends and trials begin the same day, running four days to a week on average.

In Salazar’s case, 58 people were called in for jury duty; 12 were selected with two alternates, and the trial lasted four days. The jury would have cost roughly $2,240 excluding the cost of voir dire.

We could not find that information for the Ramirez case, however given 150 potential jurors on the first day of voir dire at $40 apiece, the county would pay $6,000. Clayton estimates voir dire in death penalty cases to take a matter of 2-4 weeks with their numbers gradually decreasing, and the Ramirez trial ran four weeks long. Even back then at $7 per juror per day, the trial alone would have cost $2,940 for the panel.

Additional court reporter, expert, miscellaneous and appellate fees bring the cost of a death penalty case up to an estimated three to four times that of a non-death case, Palmer said.

“First just remember that every step of the way is through courts, prosecutors, assistant attorney generals, the defense lawyers that are involved in it—those are all funded by your tax dollars,” Clayton said. “Every bit of it. They may come out of different pots. For example, back when we tried Luis Ramirez, every dime for his original trial was paid for by Tom Green County…Then the direct appeal: all Tom Green County money for everything. The 1107 writ (of habeas corpus), I’m a little more unclear as to what pot that came out of, but it was all tax dollars, be it from the state or from the county.”

Prosecutors agreed that although the prices may be astronomical, they are not a factor when DA’s consider whether to seek the death penalty.