Monday, May 18, 2015

Death Penalty vs LWOP Cost Study Protocol

Death Penalty Costs vs Life Without Parole Costs: Study Protocol
Dudley Sharp

No state has ever done an apples to apples cost review of the death penalty vs life without parole (LWOP).

This is a template for such a cost study.


Previous death penalty cost studies have been incomplete, absurd, deceptive and/or outright fraudulent and everything in between (1).

As a rule, the prior studies were undertaken as a precursor to asking for death penalty repeal and many chose obvious deceptions to increase the cost of the death penalty and to decrease the cost of LWOP, as detailed (1).



a) The costs of a maximum death penalty sentence trial, resulting in a death penalty sentence, with pre trial, trial, appellate and incarceration costs, until execution or other death; and

b) Plea Bargains:  Only a death penalty option can result in a LWOP plea bargain. Therefore, any LWOP plea bargain costs savings from pre trial, trial and/or appeals accrue as a cost credit on the death penalty side of the ledger;


a) Death penalty eligible crimes, with a maximum LWOP sentence trial, resulting in a LWOP sentence, with pre trial, trial, appeals, high security incarceration costs and medical/geriatric care costs, until death, with some higher security costs more than $100,000/inmate/year and some geriatric care costs as much as 9 times the annual costs of younger inmates.

The reason you use death penalty eligible crimes as the standard, is because you are looking at equivalent cases, with two different sentencing protocols. In addition, IF death penalty repeal, all previous death penalty cases will be LWOP cases, as is the language in all repeal legislation.

Many of the deceptive studies use general prison population costs, instead of maximum security.

b) Plea Bargains: Without the death penalty option, it will require more LWOP trials, because

1) Obviously, without the death penalty option, there will be no more pleas to LWOP and
2) For many of these cases, many more LWOP trials will result, because it will be unacceptable to plea to life WITH parole, as the cases are just too terrible to consider parole.

All prior cost studies, wrongly, omitted that, even though the significant cost savings of such pleas are very well known and conceded routinely. No one denies that benefit. Such must be calculated as a cost benefit to the death penalty side of the ledger, if one is considering ending the death penalty, as additional costs will accrue to LWOP, as a direct result of death penalty repeal.

You can get a reasonable estimate of those costs by counting;

1) all previous death penalty trials, resulting in either death or life;
2) all previous plea bargains to LWOP; and
3) all previous cases taken to a LWOP maximum trial.

All three of those categories of cases, by their prior handling, indicate that life WITH parole is not acceptable and, therefore, they may all require LWOP  pre trail, trials and appeals, costs which must be added to the LWOP side of the ledger,  as an additional rise in costs for  LWOP cases, if considering death penalty repeal.

NOTE: The cost benefit of the plea bargain, always goes to the greater sanction, as reviewed, just as it would if comparing costs of life without parole, the greater,  to life with parole, the lesser.

3) Policy issues:  Death Penalty -  Saving Costs

a) Time for appeals:

In the modern death penalty era

Nevada's first 11 executions occurred after about 5 years of appeals, on average.  All those cases were, intentionally, left out of Nevada's deceptive death penalty cost review (1).

Virginia's first 112 executions occurred after 7 years of appeals, on average, the last October 1, 2015 after 5 years of full appeals.

Nationally, the first 60 executions occurred after about 5 years of appeals, on average.

From 1984-1988, nationally, the first 5 years of double digit executions, the average time of appeals, prior to execution was 6.6 years (2).

6.6  years.

In 1996, the US Congress passed the Antiterrorism and Effective Death Penalty Act, part of which was to speed up death penalty appeals.

In 1996, the average time on death row, prior to execution, was 10 years.

From 2009-2013, nationally, the 5 year average time of appeals, prior to execution, was 15 years (2).

In 2018, it was 19 years.


State and federal legislatures, attorney generals, district attorneys, defense counsel and state and federal judges need to have open meetings to discuss why judges have allowed 1) appeals to take over 19 years, prior to execution, with 2) some cases taking 20, 30 years, and longer, prior to executions, 3) with many death row inmates, still, languishing on death row, for over 12, 20, 30 years, and more.

The judges are the case managers and set the schedules, on a case by case basis, pre trial, at trial and on appeal and are in charge of both timing and costs.

As detailed with Virginia, there is no legal nor rational reason that appeals, prior to execution, should take longer than 7-9 years, on average: 2-3 years at the state supreme court level, 2-3 years at the federal district court level and 2-3 years at the federal circuit court level.

Cases accepted at the US Supreme Court level are, relatively, rare. However, there are issues, which can effect all death penalty cases.

Some judges are responsible for grossly uneven executions, demonstrating dictatorial like contempt for the law in those states where it is impossible, or nearly so, to execute confirmed murderers (3).

b) Execution method:

Put corrections in charge of all execution methods, as corrections are, currently, in charge of implementing all other incarceration sanctions.This will avoid time and money loss with changing the law through the legislature.

It becomes a matter of procedural policy, not change in the law, just as most other procedural changes, within corrections. Give broad powers, such as "Any execution methods found constitutional and/or any other methods of execution, that is, reasonably, considered to be constitutional."

Nitrogen Gas, for example (4). All that is needed is a tank of ng and a mask. The known side effect prior to near instantaneous unconsciousness (4)? Euphoria (4).

Currently (2019), three states have this as an option.

Lethal injection drugs

Fentanyl is, easily, available from criminal seizures and is very effective. It is already in state possession, with only small amounts necessary for execution. Testing for purity would be the only cost. No other drug is necessary, unless the inmate wishes a sedative, in advance.

I am unaware of any restrictions on the state using seized fentanyl.

Two states, currently (2019), have fentanyl in their execution protocols.

d)  Death Row:

A death row is not required. Neither Kansas nor Missouri have one.

e) Execution Chamber

For lethal injection or nitrogen gas, no execution chamber is necessary.  An existing,  secure corrections medical facility will suffice, with a video feed, to another location, for witnesses.  The majority of witnesses in the Timothy McVeigh execution used video feed.

Existing lethal injection facilities can be used for nitrogen gas.


The easy route.

If prosecutors, state defense/appellate counsel, attorney general's offices, judges and corrections all say that they would not be cutting any staff, if considering death penalty repeal, that might suggest that there will be no cost savings in getting rid of the death penalty, a result which occurred in Nebraska, when three legislative fiscal notes, regarding death penalty repeal, showed no cost savings.

Full costs studies, as reviewed, herein,  show that, when all costs and benefits are included, the death penalty may, already, be less expensive than LWOP.

Victims' Voices

1)  Read California and Nevada, first

Saving Costs with The Death Penalty

2)  Capital Punishment 2012, Bureau of Justice Statistics, NCJ 245789, last revised 11/3/14,, accessed 6/10/15

3) Judges Responsibly for Grossly Uneven Executions

4) Nitrogen Gas; Flawless, peaceful, unrestricted method of execution