AN ANALYSIS OF THE ECONOMIC COST OF MAINTAINING A CAPITAL PUNISHMENT SYSTEM IN THE PELICAN STATE.

• Author: Cohen, Ben

TABLE OF CONTENTS TABLE OF CONTENTS 1 FINDINGS 2 LIST OF APPENDICES 3 EXECUTIVE SUMMARY 5 METHODOLOGY 7 I. BACKGROUND ON CAPITAL PUNISHMENT IN LOUISIANA 8 A. STATUTORY PROVISIONS 9 B. EXECUTIVE--BACKGROUND 9 1. DEATH SENTENCES IN LOUISIANA SINCE 1976 11 2. OUTCOMES FOR DEATH-SENTENCED PEOPLE IN LOUISIANA 12 3. DEATH Row 15 4. RACE 17 5. GEOGRAPHY 18 6. RATE OF EXECUTIONS 20 7. AVERAGE TIME ON DEATH ROW 21 8. RATE OF DEATH VERDICTS 22 C. TRIAL/DEATH SENTENCING RATES IN 2005-2019 23 D. TRIAL STATISTICS 25 II. LOUISIANA COSTS 28 A. INDIVIDUAL CASE-COST OF CAPITAL TRIALS 29 B. COSTS OF OPERATING DEATH ROW 32 C. COST OF DEFENDING DEATH PENALTY SYSTEM 33 D. AGGREGATE YEARLY COSTS OF DEATH PENALTY SYSTEM--TEN YEARS 33 (2007-2016) E. PREVIOUS UNDER-ESTIMATIONS OF THE COST OF OUR CAPITAL 38 JUSTICE SYSTEM F. CHRONIC UNDERFUNDING OF THE DEFENSE SYSTEM 38 III. COST SAVINGS 44 A. EXECUTIONS V. HOUSING INMATES 44 B. PLEA BARGAINS 45 IV. OTHER JURISDICTIONS 46 CONCLUSION 51 FINDINGS

The Cost of Louisiana's Death Penalty

Over the past fifteen years, Louisiana has spent over two hundred million dollars on its death penalty system resulting in a single execution. Maintaining Louisiana's capital punishment system--prosecution, defense, court and corrections--imposes a cost on the State of Louisiana of at least $15,600,000 per year.

To maintain a capital punishment system from arrest to execution for an offense committed after August 1, 2019, the State will have to pay at least $281,000,000. This more than a quarter- billion dollars is above the ordinary costs that these cases would otherwise impose.

Cases

* There are on average eighty potentially capital first-degree murder arrests each year in Louisiana resulting in an average of thirty-two capital indictments.

* Ninety-six percent of these potentially capital cases are resolved with a non-capital trial, a plea to a lesser offense, or a plea to life without parole.

* There are on average three capital trials per year.

Time

* It takes approximately three years from the date of arrest to trial.

* The average length of time on the row for those currently sentenced to death is 17.6 years.

Outcomes

* There is on average one death sentence per year.

* Eighty-three percent of death sentences imposed at trial that have completed appellate review have been overturned.

* There was one execution in the last fifteen years. The defendant volunteered for execution.

Louisiana has the highest reversal rate in capital cases in the country, and has the highest per capita exonerations from death row.

LIST OF APPENDICES

Appendix Al-Louisiana Death Sentences and Outcomes between 1977 and 2019 Totals Chart.

Appendix A2- Louisiana Death Sentences and Outcomes between 1977 and 2019 Executions Chart.

Appendix A3- Louisiana Death Sentences and Outcomes between 1977 and 2019 Reversals Chart.

Appendix A4-Louisiana Death Sentences and Outcomes, between 1977 and 2019 Suicide or Natural Causes

Appendix A5- Louisiana Death Sentences and Outcomes, between 1977 and 2019 Exonerations.

Appendix A6- Chart of Louisiana Death Sentences 1977-2018, Defendants on Death Row.

Appendix A7-(List of Defendants Removed from Death Row between 1972 and 1977).

Appendix B1-Louisiana Public Defender Data, List of Trials and Outcomes 2005- 2019.

Appendix B2-Louisiana Public Defender Data, Individuals Sentenced to Death 2005-2019.

Appendix B2-Louisiana Public Defender Data, Individuals Sentenced to Death 2005-2019.

Appendix B3-Louisiana Public Defender Data, Reversals of Individuals Sentenced to Death 2005-2019.

Appendix B4-Louisiana Public Defender Data, Number of First-Degree Indictments and Outcomes.

Appendix B-5-LPDB Report 4.12.2019.

Appendix B-6-LPDB Contracts FY2011-2020.

Appendix B-7-LPDB Contracts FY2008-2019.

Appendix C1-Department of Corrections Costs Total--Angola 5.

Appendix C2 - Department of Corrections Costs, Angola 5, Court Costs.

Appendix C3 - Department of Corrections Costs, Angola 5, Expert Costs.

Appendix C4 - Department of Corrections Costs, Angola 5, Defense Costs.

Appendix C5 - Department of Corrections Costs, Angola 5, Prosecution Costs.

Appendix D1 DOC Costs of Operating Death Row.

Appendix D2 DOC Costs of Operating Camp F.

Appendix D3 DOC Costs of Litigation.

Appendix E--DOC Statistical Information.

Appendix F--Legislative Fiscal Office Estimates of Repeal 1999.

Appendix G--Legislative Fiscal Office Estimates of Repeal 2018.

EXECUTIVE SUMMARY

Louisiana has had the death penalty in its current form since 1977. Since that time, there have been 242 death sentences. Twenty-eight of the people condemned to death sentences have been executed. Sixty-six individuals remain on death row in the midst of appeals or litigation concerning the validity of their conviction or death sentence. One hundred and twenty-eight of these death sentences have been reversed. Ten additional individuals convicted since 1977 have been exonerated and released. An additional ten death row prisoners have died on the row of natural causes or suicide while their appeals remained pending.

Commentators have noted that Louisiana has the highest reversal rate in the country, and one of the highest per capita exoneration rates. Little has been written about the actual cost of Louisiana's death penalty. Costs of capital punishment include defense costs, prosecution costs, court costs (including the costs of court reporters, sequestered juries, transcripts, and security), costs of maintaining a separate death row, and as well the costs of preparing for, defending and administering execution protocols.

We have undertaken an analysis of the total cost of maintaining a death penalty system, including defense costs, prosecution costs, court costs, and the costs associated with maintaining death row.

Between 2008 and 2017, Louisiana spent an average of at least $15,600,000 on total criminal justice costs per year to maintain a capital punishment system. The state executed one person over that period. The actual costs may be significantly higher, as the costs do not include the prosecution or court costs spent on capital cases that ultimately did not go to trial as a capital case, or the costs of Louisiana Supreme Court review. Under conservative estimates, maintaining a system of capital punishment for an offense committed after August 1, 2019 through the person's trial in 2022 and through an execution in 2037 would cost: $281,000,000.

For this cost, the capital punishment system produces little results. Ninety- six percent of every potential capital case results in a reduced charge, a non-capital trial, or a plea. Of the cases (the 4% of total cases) that proceed to trial, 60% result in sentences other than a death sentence. This means that only 1.6% of the potential capital cases result in a death sentence. Of the 1.6% of cases that result in a death sentence, 83% are ultimately reversed with others resulting in a natural death before appeals are exhausted. The greatest likelihood in every case is death in prison, despite the broad costs expended on the death penalty.

Other state assessments have suggested that the costs per capital case are significantly higher than non-capital cases. These assessments reveal that the death penalty costs between $750,000 to $4,000,000 per case more than non-capital cases. These costs are higher because of unique breadth of capital cases, procedural and substantive constitutional protections imposed on states, as well as heightened concerns over wrongful executions. Staffing costs across the board, from defense to prosecutor function, from courts to Department of Corrections are all significantly higher.

Costs previously expended on maintaining a capital defense system are non- recoverable. However, given past costs, consideration of future expenditures is important. It is noteworthy that the office of Louisiana's Chief Public Defender has reported extensive delays and at times, including currently, lengthy waiting lists for the assignment of defense counsel to indigent defendants facing capital prosecutions, suggesting that future costs may be higher, and that the periods between the initiation of proceedings and their conclusion may be longer than estimated in this paper.

We can say, with confidence, that the costs for maintaining a capital defense system for the foreseeable future, for instance between the charging of defendants now with a capital offense and the date upon which one such defendant, may ultimately be executed are monumental. These costs are described more fully herein.

METHODOLOGY

The authors have taken publicly available information, and information requested from public agencies to return these findings. In order to encourage discussion and consideration of costs, the appendices which we have relied on can be found at http://law.loyno.edu/economic-cost-paper-la. As in assessments of costs conducted in other states, analysis depends upon averages, variances in outcome and other factors. We have identified other cost studies in order to provide comparable cost- study information. Cost studies in other states have attempted to assess the costs of maintaining the death penalty in two different ways: (1) carefully detailing the costs of a small number of cases, and then predicting the cost of the system by multiplying that by the number of cases to generate a total cost of the system; and (2) capturing the total costs of the system and then dividing it by the number of cases to identify a cost-per case analysis. We have looked at the cost both ways, and found consistency across the system.

We are in debt and express our appreciation to Secretary of the Department Corrections James LeBlanc and Jay Dixon of the Louisiana Public Defender Board for providing and maintaining this information. Ben Cohen, of counsel at the Promise of Justice Initiative, has been instrumental in collecting and organizing information. We are likewise indebted to Tim Lyman and Frank Baumgartner for...