High Cost of Ohio's death penalty

August 9, 2012


Death-penalty cases waste a lot of taxpayers' money

Columbus Dispatch Op-Ed

When Mark W. Wiles was executed on April 8, Ohio was set to execute 11 more Death Row inmates, one every two months through January 2014.

 If you’re a social conservative, this is good thing, though you’re disappointed that Gov. John Kasich commuted the death sentences for Abdul Hamin Awkal and John J. Eley, who were scheduled to be executed this summer.

If you’re a fiscal conservative, you’re wondering why we spend so much time and money on the death penalty. Wiles was executed for a 1985 murder. Awkal and Eley committed murder in 1992 and 1986, respectively. Of the nine other inmates, four committed their crimes between 1983 and 1989, three between 1993 and 1994, and two in 1997 and 1998. That comes out to a minimum of 14 years between homicide and execution and an average of over 21 years. Another 133 Death Row inmates await execution dates.

Death-penalty cases typically involve lengthy post-trial proceedings, known as habeas corpus, that consume vast sums of time and money for two reasons: The process consists of an exacting review of the entire case, and the government generally pays for both sides, because felons usually are indigent. The cost likely is millions per case.

I spoke with U.S. District Court Judge Gregory Frost about the time he and his staff spend on death-penalty cases. Like all federal judges, Frost presides over habeas corpus cases. To assist with the review of these cases, each of the three federal courts in the Southern District of Ohio employs a full-time law clerk (all licensed attorneys), and the court here in Columbus employs a part-time clerk, as well. The law clerks in Columbus handle about 25 cases, which may consist of anywhere from two boxes of documents to tens of thousands of pages.

Judge Frost also is involved in two other aspects of the death penalty. He reviews the very detailed protocol that begins 30 days prior to each execution and presides over a civil action concerning the death penalty, filed in 2004 on behalf of about 87 Death Row inmates.

The death protocol includes a review of every aspect of the execution process. The state has to ensure it has an adequate supply of the execution drug. The inmate’s mental state is assessed, and he is examined for a suitable vein for injection. Invariably, there is a request for a temporary restraining order and a hearing to review the process.

Hearings are attended, at a minimum, by three assistant attorneys general, three attorneys for the inmate, the Lucasville prison warden, the director of the Department of Rehabilitation and Correction, counsel and other officials from the department, Frost and his two law clerks. These people all are paid by either the state or the federal government. Hearings can last from a few hours to multiple days.

In the civil action mentioned above, the inmates are asking the court to declare the execution protocol unconstitutional. At issue is the state’s lethal-injection procedure and the use of certain drugs in executing inmates. Allegedly, the execution procedures allow for such variance and discretion that they violate the inmates’ equal-protection rights under the Constitution, and the drugs cause a torturous death that violates the Constitution’s prohibition against cruel and unusual punishment. The case will likely not be tried until next year.

Frost estimates that he and his staff spend 40 to 60 hours per month on some aspect of death-penalty cases.

The hidden cost of executing murderers reminds me of a commercial a few years back, where corporate executives are not allowed to leave a conference room until they devise a way to cut the company budget. After various ideas are tanked, one executive waives his hand over the binders and reams of paper that cover the table and asks, “How much does all this stuff cost?” The financial guy responds, “Time, people and material — it could be millions.” Everyone’s eyes open wide in astonishment.

Shouldn’t our state be equally concerned about time and money? Life sentences without parole would serve us much better, but we are fixated on a process that drains government resources. And to what advantage?

Jack D’Aurora is a partner in The Behal Law Group.