Death Penalty in America, Legal Studies 485, Spring 2003

Counties Struggle With High Cost
Of Prosecuting Death-Penalty Cases

The Wall Street Journal, January 9, 2002

By RUSSELL GOLD
 

When a Utah police chief was shot to death in July after responding to a call about a domestic dispute, tiny Uintah County's decision to seek the death penalty was easy. "It was a law-enforcement officer in the line of duty," says county attorney JoAnn Stringham.

Now comes the hard part: paying for the trial. So far, the county hopes to avoid raising taxes on its 25,959 citizens by spreading the as-yet undetermined costs over three fiscal years.

Other counties haven't been as lucky. Jasper County, Texas, ran up a huge bill seeking a capital-murder conviction of three men accused of killing James Byrd Jr., who was dragged to death in a 1998 case that attracted national attention. (Two were sentenced to death; the third got life in prison.) The cost -- $1.02 million to date, with other expenses expected -- has strained the county's $10 million annual budget, forcing a 6.7% increase in property taxes over two years to pay for the trial. County auditor Jonetta Nash says only a massive flood that wiped out roads and bridges in the late 1970s came close to the fiscal impact of the trial.

As a growing number of local governments are discovering, there is often a new twist on an old saying: Nothing is certain except the death penalty and higher taxes.

Just prosecuting a capital crime can cost an average of $200,000 to $300,000, according to a conservative estimate by the Texas Office of Court Administration. Add indigent-defense lawyers, an almost-automatic appeal and a trial transcript, and death-penalty cases can easily cost many times that amount.

The cost, county officials say, can be an unexpected and severe budgetary shock -- much like a natural disaster, but without any federal relief to ease the strain. To pay up, counties must raise taxes, cut services, or both.

In research published last summer, Dartmouth College economist Katherine Baicker found that counties that bring a death-penalty case had a tax rate 1.6% higher than those that didn't. Her statistical examination of 14 years of budget data from all 3,043 U.S. counties showed those with a death penalty also spent 3.3% less on law enforcement and highways. Ms. Baicker's analysis found that the same pattern of raised taxes and spending cuts hits all death-penalty counties regardless of size.

In Texas, Dallas County is struggling to pay for concurrent cases against six prison escapees accused of killing a suburban policeman last year. Gov. Rick Perry gave the county $250,000 from discretionary funds to help.

The fiscal fallout can linger for years. In Mississippi, Quitman County raised taxes three times in the 1990s and took out a $150,000 loan to pay for the 1990 capital-murder trials of two men that went on for years. Now, the county is having trouble attracting a new tenant to a vacant warehouse because it has higher property taxes than any nearby county. A death-penalty case "is almost like lightning striking," says county administrator Butch Scipper. "It is catastrophic to a small rural county."

The issue has become more pressing as death-penalty case costs have pushed higher, says Jay Kimbrough, criminal-justice director for Gov. Perry. Among the causes: DNA tests and appellate-court decisions that require longer jury selection and more expensive defense attorneys.

Now local officials are pressing state governments for relief. In Texas, Jasper County's experience helped persuade lawmakers last year to expand a program to help counties pay for the "extraordinary costs" of prosecuting capital-murder cases. (The discretionary funds given Dallas County last April were not part of this program.) State Rep. Bob Turner, who sponsored the legislation, says he was worried that smaller counties were "downgrading cases" -- pursuing lesser charges rather than the death penalty -- "to preclude the tremendous drain on the county budget." While Mr. Turner says he knows of no specific examples, he says he often heard about the cost pressures during meetings with officials from the 17 mostly rural counties he represents.

A Trial 's Tally

Jasper County,Texas,spent more than $1.02 million bringing death penalty cases against three men for the 1998 murder of James Byrd Jr. A breakdown of expenses:
Court-appointed defense attorneys 28.3%
Telephone, travel and misc 20.6
Salary for extra prosecutors 17.3
Jury, courthouse security, court reporter 15.5
Investigation 15.4
Psychiatric evaluation 2.9

Costs notwithstanding, county officials say they pursue the death penalty when the crime warrants it. "It is very expensive and it is very burdensome on communities, so that gives people pause," says Arthur Eads, who was the district attorney in Killeen, Texas, for 24 years. But, he says, "I never felt the heat to do it or not to do it because of the money."

Polk County, in east Texas, was the most recent county to receive state help. In June, the U.S. Supreme Court overturned the sentence of Johnny Paul Penry, convicted of fatally stabbing a woman in 1979, and sent the case back to Polk County for a third trial. County officials toted up the likely costs: $250 to $350 per hour for the forensic psychiatrist to review and testify about Mr. Penry's medical records; $700 to copy his 1,500-page prison record; $20,000 to pay for hotels, meals and mileage for prosecutors, investigators and support staff when the trial is moved to a different county, as expected.

Total estimated cost: at least $200,000. In December, Polk received $100,000 from the state to help pay the bill.

Other states have begun to set up what amount to death-penalty risk pools, allowing counties to pay in annually and receive funds in the event of a death-penalty case. Utah created one of the first such pools in 1997 after "the legislature got tired of bailing out counties," says Mark Nash, director of the Utah Prosecution Council.

Uintah was one of six Utah counties that didn't participate in that state's risk pool. The county, in the northeast corner of the state, had never had a death-penalty case until Roosevelt City police chief Cecil Gurr was shot and killed in July, just a few feet inside the county line.

Now, as the county struggles to pay for prosecuting the case, local officials are convinced the insurance is a good idea. In August, Uintah paid $21,500 to join the state risk pool -- for the next death-penalty case.

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