As criminal defense attorneys we are completely aware of the flaws in the criminal justice system that lead to wrongful convictions and executions.  However, it is the outrageous cost of running the state death machines that is causing serious reconsideration of abolition of the ultimate punishment.


The day before the National Right to Life Convention met in Dallas on June 27, 2013, the State of Texas executed its 500th person since the state restored the use of the death penalty in 1982. This time it was a woman: 52-year-old Kimberly McCarthy was executed for the 1997 murder/robbery of a psychology professor named Dorothy Booth at her Lancaster home located about 15 miles south of Dallas. McCarthy was the 13th woman executed in the United States since the states resumed executing people in 1977. McCarthy was the fourth woman Texas sent to its death house.


Texas officials believe in the “right to life” in the womb but you’re on your own the moment you inhale a breath of Lone Star air. Texas size realities—lack of educational and economic opportunity for the poor and underprivileged, for example—too often pave the road of good intentions leading the newborn child down the path to juvenile and adult imprisonment. We’re not trying to excuse McCarty’s behavior—her crime was as brutal and premeditated as any of the 499 condemned who preceded her into Texas’s death house.


But the bottom line is this: Texas, like many other states, has grown weary of the exorbitant costs of keeping condemned inmates on death row. In March 1992, the Dallas Morning News reported that each death penalty case cost the state $2.3 million. This was then three times the amount it would cost the state to keep an inmate housed in a top-security cell for 40 years. So in 2005 the Texas Legislature passed a “life without parole” option to give death penalty-inclined juries as alternative to that expensive ultimate punishment. Still, with 300 inmates on its death row as of January 1, 2013, Texas has to keep its death machine working overtime to minimize its housing cost by putting inmates to death as expeditiously as possible. According to the Texas Department of Criminal Justice, the average stay on the state’s death row is 10.26 years as compared to the average stay of 20 years on California’s death row and 14.8 years nationally. That’s why the state has executed nearly five times as many people as its nearest death penalty rival Virginia (110 executions but with only 11 inmates waiting to be executed).


The Death Penalty Information Center reported that Florida executed 44 people between 1977 and 2000. It cost the state $24 million for each execution. Florida has also become weary of the burgeoning costs. The state recently carried out the execution of two inmates, each of whom had spent more than 20 years on its death row. These executions came on the heels of Gov. Rick Scott signing a bill into law (June 14, 2013) designed to accelerate the pace of executions in his state. Called The Timely Justice Act, the law requires the Governor to sign a condemned inmate’s death warrant once the Florida Supreme Court declares that all appeals have been exhausted in the case. There were 13 such cases when Scott signed the law. The Governor has, or will, sign all of them. Florida’s death row population stands at slightly more than 400, second only to California’s 700-plus. However, Florida’s death row population is unique because it has 154 inmates who have been there more than 20 years and 10 who have been there more than 35 years.


If, as the Palm Beach Post reported in January 2000, it cost the state $51 million more each year to enforce the death penalty than it would to punish all first-degree murderers with life without parole, the costs of maintaining its 400-plus condemned inmates is exorbitant, if not mind-boggling. It didn’t take the “sequester” to make Florida lawmakers feel a sense of urgency, a compelling need if you will, to use its lethal injection protocol to reduce those costs. In reality, The Timely Justice Act had far less to do with “timely justice” than it did with cost-cutting. And, of course, Gov. Scott was more than happy to play the politics of “timely justice” to shore up his slim prospects at re-election.


The state of Maryland, on the other hand, took a different approach. On May 2, 2013, it became the sixth state in six years to abolish the death penalty, replacing it with a life without parole sentence. While the new law does not affect the five inmates currently on death row there, it is expected that Gov. Martin O’Malley will commute their death sentences to life without parole. Maryland’s decision to end the death penalty followed a 2008 study by the Urban Institute that found the average death penalty case costs $3 million—for a total of $186 million spent on all the death penalty cases between 1978 and 1999.


Like Texas, most states determined to keep the death penalty are passing life sentences that truly mean “rest of natural life in prison.” The DPIC reported that a 2010 poll by the Lake Research Partners showed 61 percent of voters would choose such life sentence over the death penalty. And a 2009 poll conducted by the DPIC itself found that the nation’s chiefs of police believe the death penalty the least efficient way to combat crime.


The dangerous thing about the decision by Florida and Texas to execute their way out of the death penalty economic crisis is the increased likelihood that innocent people will be put to death. Florida leads the nation with 24 death row exonerations with Texas coming in third with 12. And with a combined death row population exceeding 700 inmates, that’s really a scary prospect, especially considering that if both states could manage to execute one inmate every three days, it would take nearly 6 years to eliminate their current condemned population—and this does not include those that would be added to the population during that six-year period.


We’re not rocket scientists, or economists, or much more than 2 x 2 mathematicians, but with our twenty fingers and toes, we know the math does not add up. The death penalty will become more expensive while the resources to maintain it will become scarier. And while “timely justice” may momentarily feel good and serve immediate political interests, the worse our highways and bridges become, the realities of the economics of the death penalty will supplant the politics of “timely justice.” At least we hope so – because in the USA its the economy that is the “canary in the mine.”