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This was originally presented to the Governmental Operations Committee of the Wisconsin Senate in Marinette, Wisconsin.
January 18, 1995
Hello. My name is Charles K. Kenyon. I am an assistant state public defender in the Marinette office. I served in Senator Lasee's district as District Attorney from 1987 to 1991 and grew up and practiced law in Senator Moen's district in Tomah. I worked as a Senate page when I was in college but that was a while back -- the last time there was a Republican majority there. When I was Kewaunee County's District Attorney my office prosecuted heinous homicides and sexual assaults, including acts against children. I am here to speak, not for those who commit such acts, but rather for the people of this state who are against killing by the state to send the message that killing is wrong. I am authorized to tell you that I do speak on behalf of the Public Defender in opposition to the death penalty in Wisconsin.In the brief time available I will not attempt to offer a complete technical analysis of this bill. I just got my copy last Friday and I cannot possibly address all of the many good arguments in opposition to this bill or to the death penalty in general.
Instead, I will focus on four specific reasons why Wisconsin should not adopt any death penalty and why this bill should be rejected. First, the death penalty in any form simply is too costly. Second, history suggest that this bill will result in the execution of innocent people. Third, the history of the application of the death penalty in this country suggests that it will be applied in a racially discriminatory manner. Finally, this bill cannot make us safer.
I will address the cost factors first, because the figures are staggering. Even the most ardent supporters of the death penalty shudder at the thought of mistakenly executing an innocent person so the care taken to investigate, try, and review death penalty cases always must be extreme and therefore costly. The public defender’s office is still preparing its fiscal estimate but last year, the office estimated that each capital case would cost the state, in defense expenses alone, approximately $134,000 for each trial, and $151,916 for each appeal. Additional information that gathered this past year suggests these figures probably greatly underestimate the true costs of capital litigation.Capital cases generate costs higher than non-capital homicide cases. The high stakes involved require two attorneys be assigned to each capital case. A study from the University of California at Davis shows that the investigation time is three to five times longer in capital cases. That same study shows that the initial trial itself takes 3.5 times longer. The New Jersey Public Advocate’s office indicates that the average costs for experts in capital cases is $40,000. Other studies show that in capital cases two to three times as many motions are filed, jury selection typically requires several weeks, and the average duration of the appeals process is 10 years.
In California, capital trials are six times more costly than other murder trials. One report estimated that California could save $90 million each year by abolishing capital punishment. A study in Kansas indicated that a capital trial costs $116,700 more than an ordinary murder trial. Texas and North Carolina recently calculated that their costs per capital case averaged $2.3 million, about three times the costs of imprisoning someone in a single cell at the highest security level for 40 years. The Miami Herald reported that Florida spent over $57 million to execute 18 people from 1973 to 1988; each execution cost the state an average of $3.2 million. That compares to an estimated costs of just over $500,000 to imprison someone for life. The New York Department of Correctional Services estimated that implementing the death penalty would cost the state about $118 million annually. And a Minnesota study found that the $27 million annually required to execute four to five people could hire 350 additional police or prosecutors.
Moreover, the Wisconsin public defender’s fiscal estimate from last year only covers trial expenses for one trial. In reality, many capital cases will have to be tried more than once. A North Carolina study indicates that there is a “substantial probability for retrial and resentencing” in capital cases. Retrials and resentencings would result in additional costs that were not factored in.
Any fiscal estimate from the Office of the Wisconsin Public Defender also cannot account for other, less tangible costs to the individual attorneys involved and to other users of the criminal justice system. Death penalty litigation is extremely time-consuming and emotionally draining for the lawyers assigned to the cases. Just the trial itself in a typical capital trial can take six weeks to three months, while a first degree homicide trial in Wisconsin under current law rarely takes more than two weeks, if that long. The appeals in capital cases then can last for years. One result would be additional delays in processing non-capital cases. Those delays will put additional pressure on the cashflow of private bar attorneys. In capital cases, their income could be delayed for a very long time. They are already working at or below cost on public defender cases. This is likely to result in difficulty finding counsel not only in homicide cases but also in lesser cases. In Marinette and Oconto counties we often have to hire attorneys from 60 miles away because of a shortage of attorneys here willing to work at the low rates authorized.
Bear in mind that fiscal estimates provided by the Wisconsin Public Defender’s office reflect only defense costs. Last year the Wisconsin Department of Corrections estimated increased costs of $1,404,000 for constructing a facility for housing death row inmates, and annual operating costs of $492,100. Additionally, these complex and lengthy cases will have vastly increased costs of prosecution.
In Iowa last year, the fiscal note to a death penalty bill in that state estimated that the cost of prosecution at the trial level would be $300,000 per capital case. Iowa also estimated that the defense costs would be an additional $300,000, and that appeals, including both defense and prosecutions expenses, would be $1 million dollars per case. As a former elected District Attorney I have to agree with these estimates; in the smaller counties, such a case may require the hiring of special prosecutors so that the other work of the office can be done.
The judicial system also will bear costs, some financial and some less tangible, that will not be reflected in any fiscal estimate from the Wisconsin Public Defender’s office. Death penalty cases drain not only prosecution and defense resources, but also judicial resources. Courts in death penalty jurisdictions must spend an inordinate amount of their time reviewing complex and time-consuming death penalty cases, in which the life-or-death nature of the penalty requires both litigants and courts in each case to consider every conceivable legal and factual issue with minute care. This skews the entire judicial system, diverting judicial time and attention from important cases in other areas of everyday concern to individuals and business such as family law, torts, and insurance law. The California Supreme Court, for example, spends more than half its time reviewing capital cases and the Florida Supreme Court spends about half its time on death penalty cases.
In short, we cannot afford to divert our scarce criminal justice dollars to such a costly and ineffective system as the death penalty.
The second point I want to address is the problem of execution of the innocent; at least for me it is a problem. There are no harmless errors when someone is wrongfully convicted in a death penalty case.The danger of executing innocent people is real. Even a cursory review of this bill demonstrates that, if this bill passes, appellate judges would be given more time to process and decide a case relating to the denial of a peddler’s license than they would be given in a case involving life or death.Between 1973 and May of 1994, at least 51 people were released from death row based upon evidence of innocence. In 1964, Professor H. A. Bedau published an essay on miscarriages of justice in capital cases. He identified 74 such cases between the years of 1962 and 1983. In a 1987 Stanford Law Review article, he and Professor Redelet identified 350 people who appeared to have been wrongly convicted in capital (or potentially capital cases) between 1900 and 1985. 23 of these people were executed. More recently, in their book In Spite of Innocence, they catalogued cases through the summer of 1991 and added 66 more cases to the list.
I wish we could promise that wrongful conviction cannot happen in Wisconsin. We cannot, you cannot. Wisconsin courts have convicted innocent people. In 1972, we convicted a man in Milwaukee of raping and stabbing a teenager. He was released from prison eight years later, after blood testing proved he was not the assailant. Under the time lines of Senate Bill 1 he would have been dead by then.
Our office also is aware of cases where defendants have been convicted of first degree murder and then acquitted on retrial. Those retrials occurred because an appellate court corrected an unfair and prejudicial error in the original trial. Whatever your views on the death penalty, any fair-minded person would agree that appellate courts should be given the same time for careful review of a sentence of death as is provided for appellate review in less serious cases. If this bill is adopted, appellate judges would be given more time to process and decide a case relating to the denial of a peddler’s license than they would be given in a case involving life or death.
The people of this state do not need to kill innocent people to make the point that killing is wrong. We should reject Senate Bill 1 because it will result in the cold-blooded, premeditated, and wanton killing of the innocent by their government.
A persistent problem with the death penalty is that it is applied in a racially discriminatory basis. In 1972, when United States Supreme Court struck down the death penalty in several states because the decision to impose death was made in an arbitrary manner, Justice Harry Blackmun, who had recently been appointed to the court by President Nixon, dissented.Twenty years later, after voting to uphold the death penalty in numerous challenges, Justice Blackmun decided he no longer could vote to uphold a death penalty statute. Justice Blackmun concluded that the death penalty cannot be administered fairly and in a constitutional way. He relied on statistics proving that blacks are executed far more often than whites. These statistics prove that the race of the victim also influence the decision to impose the death penalty. A black charged with killing a white was 4.3 times more likely to be sentenced to death than if the victim were black.
We should not enact a death penalty in Wisconsin because it will be racially discriminatory.
The final point I wish to address is that enacting Senate Bill 1 or any death penalty bill will not make anyone in this state safer. The most common reason given for supporting the death penalty is that the threat of capital punishment has a deterrent effect on the commission of capital crimes. Although this argument may appear plausible, the research does not support it.Punishment is only an effective deterrent if it is consistent and prompt. Capital punishment cannot be administered swiftly because of court-required procedural safeguards. Murder trials take far longer when the death penalty is involved. Post-conviction appeals in death penalty cases are far more frequent as well. All these factors increase the time and cost of administering criminal justice. On December 31, 1993, there were 2,716 prisoners under a sentence of death. The median time since their death sentence had been imposed was six years and one month. The prisoners executed in 1993 had been under a sentence of death for an average of nine years, one month. Many inmates have been on death row ten years or longer. To reduce the delay in administering punishment may well increase the risk of convicting the wrong person and executing the innocent.
Capital punishment is not consistently imposed. A small number of first degree murderers are sentenced to death and only a small proportion of those sentenced to death are actually executed. In 1990, the U.S. Department of Justice estimates there were 10,895 murder convictions with 265 prisoners admitted to death row in that year. Of all defendants convicted on a charge of criminal homicide, only about 2.5 percent are eventually sentenced to death. Few prisoners on death row actually are executed. From January 1, 1977 to December 31, 1993, 266 executions have been carried out. In the same period, 1,789 inmates have been removed from death row as a result of dispositions other than execution.
The death penalty also is not a deterrent because most capital crimes are committed during moments of great emotional stress or under the influence of drugs or alcohol, when logical thinking has been suspended. If the crime is not premeditated, the threat of punishment will not stop the offender from committing the offense. In this office’s experience, most murders are not pre-meditated. In those rare instances when offenders premeditate their crimes, ordinarily they concentrate on escaping detection arrest and conviction. The threat of severe punishment will not deter those who expect to escape detection and arrest.
The vast preponderance of the evidence shows that the death penalty is no more effective than imprisonment in deterring murder. Death penalty states do not have lower rates of criminal homicide than non-death penalty states. In fact, the opposite is true. In 1993, the average murder rate among states without the death penalty was 5.2 per 100,000 population while the average murder rate among states with the death penalty was 8.1 per 100,000 population.
Among neighboring states, the one with the death penalty does not show a consistently lower rate of criminal homicide. For example, Illinois and Indiana, both death penalty states, have homicide rates of 11.4 and 8.0 respectively, while Wisconsin and Minnesota, non-death penalty states, have homicide rates of 4.4 and 3.4 respectively per 100,000 population.
Prisoners and prison staff do not have a higher rate of criminal assault and homicide from inmates serving life sentences in states without the death penalty. Between 1984 and 1989, seventeen prison staff were murdered by prisoners in ten states. Fifteen of these murders took place in states with the death penalty.
Recidivism among murderers does occasionally occurs, but it happens with less frequency than most people believe. The media rarely distinguishes between a paroled murderer who murders again and other murderers who have a previous criminal record but not for homicide. Of the 533 prisoners on death row in 1972 whose sentences were reduced to life by the Supreme Court’s ruling in Furman, only 6 committed another murder.
The more severe, irreversible, and beyond compensation a punishment is, the more evidence is needed of its deterrent effect before it can justifiably be used in preference to a less severe penalty. At present, the weight of the evidence appears to reject the notion of a deterrent effect of capital punishment. Imposition of the death penalty does not deter crime. Punishment is only an effective deterrent is it is consistently and promptly given. Imposition of the death penalty is neither consistent nor prompt.
We in Wisconsin already have life imprisonment, and even the option of life without parole. Our judges have not hesitated to use that sanction to protect the public and punish the offender. There is no reason to jump into the death penalty quagmire.
Wisconsin has very limited resources. We can better use those resources to protect the public by increasing community policing, social services, and other crime prevention methods. The death penalty has no public benefit comensurate with its costs. This would be true even if we could be assured that we would only kill those who are guilty; instead, we can be sure that we will kill innocents. Wisconsin does not need to join the states of the deep south in officially sanctioned killing according to race. My great great grandfather, Charles Kenyon, fought in the Civil War to bring the South to a level of civility, he would roll in his grave to see us drag Wisconsin down. There is no way that the death penalty can be administered in a racially neutral way, we must not adopt it. And finally, why would we want to join the states with a higher homicide rate by adopting a death penalty. It will not make us safer.The Death Penalty is something we in Wisconsin can live without. Thank you for listening.
Posted on the Internet 1/16/98. No changes made in text. HTML changes made 1/16/98.