News-Times

Innocence and Cost in the Death Penalty Debate

SUNDAY, MARCH 9, 2008

By Richard Hargesheimer and Linda Ruchala

The writers are from Lincoln. Hargesheimer is a former research director for the Nebraska Legislature. Ruchala is an associate professor of

accounting at the University of Nebraska-Lincoln.

Two issues—innocence and cost—are sure to get atten-

tion when the Nebraska Legislature soon takes up the death penalty. They are also inextricably intertwined. The death

penalty system costs a lot because we do not want to make mistakes. Yet, mistakes, lots of them, are made.

Former Texas county prosecutor turned anti-death penalty advocate, Sam Millsap, believes wrongly convicted persons have been executed. Millsap was in Lincoln March 4 and 5 to share his experiences with state legislators.

Millsap is one of dozens of prosecutors across the country who have come to either oppose or seriously question the

effectiveness of capital punishment. To those who say that no innocent person has been exe-

cuted, Millsap says, “look only to the state of Texas…Cameron Willingham was certainly innocent. In fact, in the Cameron Willingham case, there wasn't even a crime. Carlos De Luna, (one of) the most recent, was probably inno-cent. And the person I prosecuted in 1985, Rubén Cantú, was probably innocent.”

Even with the perfect trial, the state errs. “Cantú received a perfect trial,” Millsap said. “The system in the Rubén Cantú case worked exactly the way it was supposed to work…. And one of the things we have to acknowledge is, he may well have been innocent.”

Almost without doubt, innocent people have been exe-cuted since the reinstatement of the death penalty in 1976. According to the Death Penalty Information Center, at least 127 death row inmates in 26 states have been freed with

proof of actual innocence since the 1970s. These defendants all had been convicted and sentenced to death. Subsequently, all either had their conviction overturned, were acquitted at re-trial and had all charges dropped or were given an absolute pardon by the governor based on new evidence of innocence. In addition to those 127 exonerees, at least another 14 per-sons have been released, nationwide, from death row because of serious questions about their guilt. An additional 5 have

had their sentences commuted to life because of similar con-cerns.

Most troubling, since 1976, at least 8 persons with serious doubts about their guilt have been executed. Equally telling, some 213 inmates in 32 states have been exonerated through DNA evidence alone, most in the last 15 years. Many of these persons, including 15 who served time on death row, could have qualified as death penalty eligible.

Altogether more than 320 people, including 127 on death row, have been found innocent of serious crimes after serv-ing, collectively, thousands of years in prison.

In 2001, U.S. Supreme Court Justice Sandra Day O’Connor, herself a death penalty doubter, said, "If statistics are any indication, the system may well be allowing some innocent defendants to be executed."

Closer to home in Nebraska, veteran Lincoln police offi-cer Captain Jim Davidsaver calls Nebraska’s death penalty “a model of inefficiency.” Taxpayers pay the higher costs of the death penalty but get life in prison without parole. Nebraska

Solicitor General J. Kirk Brown, the state’s chief death pen-alty attorney, finds the costs of the death penalty system “staggering.”

Nationally, the average cost of death penalty cases is well over $1 million. Comparative figures for Nebraska are diffi-cult to assess, since the State’s financial reporting provides insufficient disclosure for cost analysis. We do know that a recent Nebraska death penalty case cost $750,000 for the

sentencing phase alone, since the defendant pleaded guilty, meaning there was no trial and no cost associated with de-termining guilt or innocence.

An independent study commissioned by the 1999 Ne-braska Legislature found that the prosecution sought the death penalty in 89 of 177 death penalty eligible cases be-tween 1973 and 1999. Of those 89 cases, 24 resulted in a death penalty being imposed. Imposing a death penalty does not, however, mean that a defendant will be executed. Of

those 24 death sentences, 13 were commuted to a sentence less than death; four died in prison; one was freed; three re-main on death row, and three were executed (all in the 1990s).

Thus, of the 89 cases that went to trial with the prosecu-tion seeking death, 83 ended up being, effectively, life in prison without parole. Using a very conservative estimate that, in today’s dollars, Nebraska’s death penalty cases cost

just half the national average cited above, 89 cases would result in a total cost of almost $45 million or $15 million per execution.

In sum, the death penalty system is extremely expensive, infrequently results in execution, and is prone to fatal error.

The death penalty, as Millsap says, “can’t be fixed… the option to put people to death has to end.”

York