the costs
of capital punishment
litigation
By James M. Reams and Charles T. Putnam
Most critics and even many supporters of capital punishment
conclude that it costs society more to carry out the average death
sentence than it does to carry out the average sentence to life without
parole. We are less sure of that conclusion.
One cannot really begin a discussion of the costs of capital
punishment without looking at the allegations, by the Death Penalty
Information Center (DPIC) regarding “exonerations” in capital cases
that have occurred since 1970. The DPIC list of exonerations is so
flawed that it should not be taken seriously. Unfortunately, it seems
to bear witness to the saying that if you tell the same lie often enough,
it will be believed .
The DPIC list of “exonerations” is scientifically flawed for a
number of reasons that result in a vast overstatement of the number
of actual exonerations. The reasons have to do with flawed criteria for
inclusion on the list.
The DPIC’s definition of “exoneration” is very different from the
way the word is understood by the general public or as it is defined by
the Webster’s Collegiate Dictionary. As generally understood, exonera‑
tion means that the accused defendant did not actually commit the
criminal act or was actually innocent.
The DPIC definition, however, equates acquittal and dismissal
with actual innocence. For instance, it includes cases where convic‑
tions were reversed for legal insufficiency; where defendants benefited
from excluded, but reliable evidence; where defendants were actual
perpetrators or principals in the killing of another; where conclusions
are based on information from media reports and conversations with
unidentified participants and constitutionally anachronistic cases. Thus, the DPIC list of “exonerations” is not the result of rigor‑
ous research and vastly overstates the number of exonerations. See,
“Exoneration Inflation” by Ward Campbell, IACJ, Summer 2008,
for in-depth analysis and a critique of the DPIC figures, or U.S. vs.
Quinones, 205 F. Supp. 2nd 256 (SDNY, 2002)
Opponents of the death penalty, argue that even one exoneration
is too many for society to retain capital punishment. Some, including
former Attorney General McLaughlin and Andrew Schulman, attempt
Summer 2011
to set a new standard for death penalty litigation, which is “100 per‑
cent guaranteed method or separating the innocent from the guilty” Schulman, NHBJ, Spring 2011, page 33.
Human beings cannot expect 100 percent safety in anything they
do and a 100 percent “fail-safe’ guarantee is not attainable in any legal
system, or in any human activity ranging from wartime decisions to the
decisions to drive on a busy street. Getting out of bed in the morning
involves risk as does staying in bed every day. One cannot escape some
level of risk in the world. Requiring that the legal system provide 100 percent accuracy
would effectively stop all decision-making in the legal system. If 100
percent accuracy is the standard to apply to capital cases, why shouldn’t
that standard be applied to other criminal charges, like murder or
sexual assault, given that several pro-repeal witnesses before the
Commission testified that long prison sentences, especially life without
parole, are actually worse for offenders? We cannot remove all risk
in the world, but it is clear that the American people accept the level
of risk associated with our criminal justice system by their continued
support of the system and their pride in the system. Every day citizens sit as jurors and make decisions about cases
presented to them and return verdicts that they are proud of. Policy
makers should not confuse a legitimate aspiration for the criminal
justice system with an iron-clad guarantee that courts, attorneys and
investigators actually can meet in all cases.
We must not lose sight of the fact that this country has created a
legal system that is the envy of the world. At the same time, we have
adopted a higher burden of proof in criminal cases than any other
country in the world, while providing more protections for minority
rights and accused defendants than any other society in the world.
Actual Costs
The Commission heard testimony and received evidence from the
Attorney General’s office, the Public Defender Program, the Department
of Corrections, and the Judicial Branch regarding capital litigation
costs. After considering that testimony and evidence, there was nearly
unanimous consensus among the members of the Commission (by
a vote of 14-1), that capital litigation is more costly than first-degree
New Hampshire Bar Journal
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21 
during their “end of life” phase. Therefore, there it is reasonable to
conclude that the lifetime costs of average LWOP sentences will be
significantly higher than average costs of persons serving shorter
sentences.
Since there is little data about the real cost of an LWOP sentence,
the Commission could only reach general conclusions based upon
general facts about end-of-life issues. Members of the Commission have varying perspectives on the
degree to which cost should play any role in the debate concerning the
death penalty. Some members feel that cost should not be a factor at
Incarceration costs of first-degree murder
all. Others felt that the funds allocated to death penalty cases could be
inmates are understated
better spent on other significant needs, such as victim support or the
It is difficult to precisely compare the costs of incarcerating an
continued funding of a cold case unit at the Attorney General’s office. inmate. The Commission heard testimony from the Department of
Corrections regarding incarceration costs in New Hampshire. The
Inaccuracies in estimating
Department of Corrections indicated the average length of incarcera‑
tion of an inmate serving a life without parole sentence is 16.4 years. prosecution costs
If the costs of incarceration of inmates are averaged across the entire
Prosecuting certain first degree murder or other complex criminal
corrections system, the cost comes to approximately $33,100 per year. cases can be very expensive. Further, it is hard to categorize any case
The costs associated with housing inmates in the Secured Housing Unit,
as being a “typical” first degree murder. where Mr. Addison, the state’s only capital-murder sentenced inmate,
According to estimates provided by the Attorney General’s office,
is presently housed, are higher because of the nature of confinement
the costs through November 4, 2010, for legal work associated with the
and the increased security in that unit. investigation and prosecution of the Addison case were $1,729,161.78,
First, when talking about costs the Department of Corrections
comprised of $503,821.99 in litigation expenses and $1,225,339.79
uses an average cost of housing an inmate in New Hampshire prisons,
in human resource costs. For the Brooks case, the costs through
which takes the total costs of the system and divides those costs by the
November 4, 2010 were $2,356,253.01, comprised of $377,528.95 in
number of inmates. This method skews the actual costs of life sentences
litigation expenses and $1,978,724.06 in human resource costs.
downward. Clearly, it is more expensive to house an inmate sentenced
According to figures from the Public Defender program, which has
to LWOP than an inmate serving a three to six-year sentence, which is
provided counsel to Mr. Addison, the costs attributable to the defense
the average sentence to the NH State Prison. See N.H. Department
of the Addison case were $1,137,000 through December, 2009. The
of Corrections Annual Report at 3 (2006).
Public Defender program anticipates that appeal costs for the Addison
Prisoners who are serving LWOP sentences have much higher total
case will be $375,328 in calendar year 2010 and $450,726 in calendar
costs, such as medical costs associated with geriatric care, medical care
year 2011. The Judicial Council estimated it has spent $348,036.33
for chronic health issues and “end of life” care. It is well documented
on expert witnesses, investigative services, and forensic work for the
that most Americans spend most of their lifetime health care dollars
Addison case. By contrast, the Judicial Council said the range of such
expenses in non-capital mur‑
der cases was typically between
$70,000 and $100,000. Figures
for the defense costs incurred in
the Brooks case were not avail‑
able as he was represented by
private counsel.
The Commission also heard
testimony from representatives
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murder prosecution. There is a significant difference in the cost of
prosecution and incarceration of a first- degree murder case where
the penalty is life without parole as compared with the cost of a death
penalty case from prosecution to execution.
The Commission members believed that the greater cost associ‑
ated with capital murder cases is essential to guarantee a vigorous
defense, a thorough investigation and prosecution of the case, and
careful adjudication of the case.
Lost profits not
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New Hampshire Bar Journal
Summer 2011
In weighing the relative costs, the Commission was mindful of
the experience in cases throughout the country involving death sen‑
tences. In such cases, prosecution and defense costs do not end with the
trial or with the direct appeal to the state’s highest court. Rather, the
litigation of death sentences continues for a length of time following
conviction, frequently several decades. This factor alone results in a
significant disparity in the costs associated with death penalty cases
as opposed to other murder prosecutions.
The figures that the Commission has been provided by the At‑
torney General’s Office are valid attempts to comply with Commission
requests, but both are hampered by complications that undermine an
accurate understanding of the prosecution costs of the recent capital
murder trials and the expected costs of substituting LWOP sentences
for the death penalty in cases of capital murder.
For example, the Attorney General’s Office is challenged when
providing figures about the costs of litigating the two recent death
penalty cases. The main defendant in the Brooks case was a multimillionaire with virtually unlimited resources to pour into his defense.
His case was also complicated by the fact that multiple trips had to
be made to Las Vegas, the defendant’s home, to interview, depose and
prepare witnesses for both phases of the case.
In State v. Addison, the Attorney General’s Office assisted the
Hillsborough County Attorney's Office in the preparation and trial of
the underlying armed robbery cases. In a bid to be entirely transparent
and complete, the Attorney Generals Office included all costs associated
with prosecuting the defendant Addison. Thus, figures for Addison
overstate the actual costs of the prosecution of a death penalty case.
Higher costs do not justify repeal of the death penalty
We believe that higher costs for capital murder
cases are a necessary component to maintain
confidence in the criminal justice system. Those
costs ensure a thorough investigation and prosecution, a vigorous defense, and a careful
adjudication of the case.
Despite the imprecision with which prosecution and incarcera‑
tion costs can be calculated, given all of the considerations, the Death
Penalty Review Commission concluded that the costs associated with
death penalty prosecutions and incarceration significantly exceed the
costs associated with first-degree murder cases. We accept that conclu‑
sion, but disagree with the proposition that the capital murder statute
must be repealed if the cost of carrying out a capital murder sentence
exceeds the cost of a sentence of life without parole.
Like many other Commission members, we believe that higher
costs for capital murder cases are a necessary component to maintain
confidence in the criminal justice system. Those costs ensure a thor‑
ough investigation and prosecution, a vigorous defense, and a careful
adjudication of the case.
Moreover, the higher costs do not outweigh other important public
policy considerations discussed in other parts of this report. This is
especially true in view of the infrequent application of the death penalty
in New Hampshire.
Authors
James M. Reams has been Rockingham County Attorney for 12 years, and is completing his term as President
of the National District Attorneys Association. While in private practice, he served as an appointed public
defender in a number of homicide cases.
James Reams
Summer 2011
Charles T. Putnam is co-Director of Justiceworks, a research institute at the University of New Hampshire and
he is a Clinical Associate Professor of Justice Studies at the University of New Hampshire. He joined Justiceworks
in December, 2001, after working for 15 years as a member of the New Hampshire Attorney General’s Office,
where among other assignments, he headed the homicide unit.
New Hampshire Bar Journal
Charles T. Putnam
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23 