Dollars add up in capital trials

Estimates vary, but the price tag for a death penalty trial is estimated at more than $300,000 more than non-capital cases.

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Estimating the cost of a murder trial involving the death penalty versus one that does not is a tricky business. But several past studies indicate costs are significantly higher for capital cases.

Nineteen years after the state's current death penalty law was adopted, Washington state Supreme Court Justice Richard P. Guy examined the costs for 25 aggravated murder trials between 1997 and 1999, eight of which involved the death penalty.

Adjusted for inflation, the 17 non-capital trials would cost an average of $163,063 today while the eight capital trials would average $497,398 in 2009 dollars, a difference of about $334,000 each.

That difference was slightly more than costs cited in a 2004 study by Mark Larranaga and Donna Mustard of the Washington Death Penalty Assistance Center.

In that report, the authors said "under one review, an average death penalty trial from 2000 to 2003 costs $432,000, compared to $153,000 for a non-death penalty trial." Adjusted for inflation, this would be $487,572 for a capital trial today compared to $172,681 for a non-capital trial, a difference of about $315,000.

A third study, done in 2006 by the Washington state Bar Association, concluded "death penalty cases are estimated to generate roughly $470,000 in additional costs to the prosecution and defense over the cost of trying the same case as an aggravated murder without the death penalty and costs of $47,000 to $70,000 for court personnel."

In today's dollars, that would be $497,043 extra for a trial involving the death penalty with an added $49,704 to $74,000 for court costs. But the report did not provide an estimate for a non-capital trial, as did the previous two reports.

But the authors of the 2006 Bar Association report note that any aggravated murder trial is likely to carry a high price tag whether it involves the death penalty or not.

"It is important to bear in mind that aggravated murder cases will always be complex and require substantial time of a prosecutor even if the death penalty were eliminated," the report said. "In other words, the failure to file a death penalty notice does not save any court system the entire cost of trying a complex, albeit non-capital, case."

Walla Walla County Prosecuting Attorney Jim Nagle agreed.

"The costs of prosecuting a 'major' criminal case vary widely," he said.

A case with numerous witnesses and a confession from the perpetrator may cost less to prosecute than one that relies on only circumstantial evidence, making it possible for a non-death penalty murder case to cost as much as a capital case, he said.

A fairly recent example was the investigation and work that went into the Robert L. Nelson case, a Kennewick man who pleaded guilty this summer to the unintentional fatal shooting of a companion at a hunting campsite in Blue Mountains.

"It was probably never going to be more than a manslaughter case, but the investigation and time still had to be spent," Nagle said.

The Bar Association report noted the death penalty may also result in more aggravated murder cases being cut short with a guilty plea than would occur if there were no death penalty.

Between 1981 and 2006, 25 percent of the "death eligible" aggravated murder cases in Washington state were resolved by a guilty plea, while during the same period only 11 percent of the aggravated murder cases in which the death penalty was not possible ended with guilty pleas.

While the report's authors said it was not possible to conclude the difference was due entirely to the threat of the death penalty, "both prosecutors and defense counsel on the Subcommittee acknowledge that the death penalty creates an incentive for a defendant to plead guilty."

However, King County Prosecuting Attorney Dan Satterberg said in an e-mail the death penalty "is not leverage to be used in plea negotiations.

"The decision to seek the death penalty does not, at least in my experience in this office, turn on whether or not the defendant will plead guilty," Satterberg said. "That does not mean that after the decision is made that issues won't arise that cause the prosecutor to re-evaluate the case and that decision."

In a final comment, Larranaga and Mustard say in their report a trial involving the death penalty is more expensive for fairly straightforward reasons.

"Capital cases are profoundly different than all other types of criminal cases. Besides the irrevocable punishment, (they) are factually more detailed, legally more complex and procedurally more involved. All these factors lead to a prolonged and costly process."

Or, as Guy said in his report, "Trial and appellate courts adjudicating death penalty cases do so recognizing that 'death is different.'"

Andy Porter can be reached at andyporter@wwub.com or 526-8318. Check out his blog at blogs.ublabs.org/randomthoughts.

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