To: Governor Gary Herbert and staff
Attorney General Sean Reyes and staff
Utah Prosecution Council
Utah Sheriffs' Association
Re: Problems: Utah Death Penalty Cost Study
From: Dudley Sharp
Utah's death penalty cost study (1) has some problems.
1) No Evaluation of Actual LWOP or Death Penalty Costs
The study is based upon calculating the differences in costs between the death penalty and life without parole, WITHOUT ESTABLISHING the specific costs of either the death penalty or of life without parole ("LWOP", being the relevant capital murder cases).
The study did this by, allegedly, looking at all the things that Utah has to do in a death penalty case and in a LWOP case and calculating ONLY the costs of the, alleged, differences between the two, wherein this study found $1.6 million more costs in a death penalty case.
Because of errors in methodology, we know this to be, wildly, inaccurate.
2) How Problematic
This process had several identifiable problems:
a) Gary Syphus, the fiscal analyst who did the death penalty vs LWOP cost study, stated: "To be clear I did not estimate LWOP costs" (2).
We are precluded from fact checking a detailed look at both death penalty and LWOP costs, which are, totally, absent from the study, thereby lowering any confidence in its conclusions
added 11/21/16 -- To be very clear, the methodology of the study, as detailed, and Syphus' conclusions must be very inaccurate;
b) confidence, further lowered, because the study excluded 1) the increased costs of medical and geriatric care, for LWOP and 2) possibly excluded an increase of costs of higher security for LWOP capital murderers; 3) excluded the increased costs of the additional appellate LWOP costs; and 4) the cost savings of plea bargains to LWOP, only possible with the death penalty option and a cost credit which is applied to the death penalty side of the ledger and which can be a huge number, dramatically lowering death penalty costs, depending upon the number of LWOP pleas.
This study provides zero information for all of those calculations, wrongly excludes them, because none were looked at, establishing many errors, undermining any confidence in the study.
3) UNDERESTIMATING LWOP COSTS
According to Syphus, the "study" used the average incarceration costs per year for THE ENTIRE PRISON POPULATION and applied those to LWOP (2).
Such underestimates LWOP costs.
a) Medical Costs
LWOP murderers will die in prison and will have a higher average costs for medical care, because, as per Syphus, the average Utah LWOP inmate will live to 76, which incurs geriatric care costs, WHICH Syphus averaged out over the ENTIRE PRISON POPULATION, instead of applying it to LWOP, only (2).
As an example, the study averages costs inclusive of, say, a 20 year old, healthy inmate who gets a 1 year prison sentence for assault and has $0 medical costs per year and an 85 year old inmate, on kidney dialysis, who received a LWOP sentence for capital murder, at age 45, with medical costs at $348,000 per year.
This methodology destroys any confidence in the study and results in, totally, unreliable numbers, as is conceded.
In 2012, in Utah Dept. of Corrections (UDC) found that:
"About 9 percent of the state's total prison population is older than 55. (UDC) estimates health care costs of those inmates are 12 times more expensive than those of younger inmates." (3)
Syphus averaged out those 12 times more expensive geriatric LWOP cases, over the ENTIRE PRISON POPULATION, lowering the real, true geriatric LWOP medical costs and destroying any confidence in the studies findings, as all reality was destroyed, as conceded.
Based upon Syphus' average expected age of 76, the average LWOP prisoner will have about 26 years of geriatric care which for prisoners starts at ages 50- 55, and, in Utah, averages about additional $22,000 per year (4), or $572,000 per inmate for those additional 26 years, costs which Syphus nullified by averaging the costs over the ENTIRE PRISON POPULATION.
Added to that will be 5 more years of increased medical care, maybe an additional $11,000 or so per LWOP prisoner/yr., $55,000, total, to add up to the 31 years Syphus calculated as the additional years for LWOP over a death row inmate, or an estimated $627,000 total, more per LWOP inmate (4), which was excluded in the study (4).
Because of the way Syphus calculated the study, it is possible that this error could be double, or $1.254 million, as the $627,000 was excluded from the baseline of LWOP, as would apply to all other cost issues, to follow.
Utah's medical/geriatric prisoner costs are at a low level compared to many other states, as detailed (4).
For example, the renal failure unit at the Federal Medical Center (Devens) costs $348,000/PER YEAR/PER INMATE for their 115 aging inmates, at $4 million per year for that unit, EXCLUDING MEDICATION COSTS (5).
b) Higher security costs
As a rule, LWOP capital murderers will be in higher security than general population inmates, and such will be more costly.
However, the spokesperson for UDC, unofficially, says that increased security in Utah does not cost more.
Such is an astounding management of costs, if accurate.
For example, one of California's maximum security units costs $172,000/PER YEAR/PER INMATE (6).
As per Syphus, Utah's average prisoner cost is about $27,000/yr/inmate (2).
It appears that Utah does a better job at controlling incarceration costs than most states. But we will still have to wait on UDC's specific cost statement, which I have been waiting on since 3/1/16 and, as of 6/2/16, have not received.
c) Inaccurate Appellate Costs
Syphus states that the legal appeals costs are within the average for the incarceration costs for the ENTIRE PRISON POPULATION, as with medical costs, which indicates a highly inaccurate and strange way to arrive at very wrong numbers for LWOP costs (2).
Syphus claims that appellate costs are part of the incarceration cost average (2), which makes no sense, further lowering our confidence and, if true, indicates the same problem of averaging over the ENTIRE PRISON POPULATION and, again, dramatically, lowering LWOP appellate costs.
For example, one would be averaging appellate costs of all inmates who plea bargained and have $0 appellate costs with those LWOP capital murderers who did not plea and have years of appeals, again, an averaging which, vastly, underestimates LWOP appellate costs, again, a lost cause for confidence.
4) OVERESTIMATING DEATH PENALTY COSTS
Plea bargains to LWOP
With no detailed pre trial, trial and appeals costs of the LWOP cases, there is no way to calculate the actual cost credit of a LWOP plea, a cost credit only possible with the death penalty option and a plea which can create significant cost savings, which shows as a cost credit to the death penalty and which was not calculated in this study. further destroying any confidence in the study.
No death penalty = no plea to LWOP.
Depending upon 1) how many LWOP cases are the result of a plea; 2) the cost savings of those pleas and 3) how many death row cases a state has, there is a scenario whereby the plea cost savings eradicate any alleged excessive costs of the death penalty, if there are any, and/or which would make the death penalty less costly than LWOP.
But, we are left guessing, as the study leaves out all of those important details.
The death penalty debate is rife with horribly inaccurate and/or misleading death penalty costs studies, some intentionally and obviously fraudulent (6), and Utah's is, not unexpectedly, just another example of that major problem.
The many problems with Utah's study cannot be clarified and/or corrected without a detailed review of both death penalty and LWOP costs, wherein, LWOP costs will rise, possibly dramatically, just as death penalty costs will go down, also possibly, dramatically.
NOTE: These study problems are not the fault of Syphus, but of the parameters given to him by the authority requesting the study. It is unfortunate he didn't detail the problems of the study and that I had to do so.
ALTERNATE STUDY PARAMETERS
1) The easy route:
Ask all relevant entities how many people they will lay off with death penalty repeal. Likely, none, meaning death penalty repeal will have no known budgetary effect, nullifying the need for a specific, detailed cost review.
2) Detailed route:
A complete, detailed, specific study of all financial and cost aspects of both death penalty and LWOP cases, inclusive of only capital murderers in the LWOP category.
Here is a suggested protocol for such a study (7).
UTAH'S DEATH PENALTY MANAGEMENT PROBLEMS
I have been told that Utah averages about 20 years of appeals, prior to execution.
That is not a death penalty problem. That is a management problem.
The average time for appeals, prior to execution, is 11 years, nationally, and 7 years, in Virginia.
Virginia has executed 111 murderers, since 1976, within an average of 7 years of full appeals. Their last execution, 10/1/2015, occurred after 5 years of full appeals (see Virginia within footnote 6).
If Virginia can do it, Utah can.
As a rule, there is no legal or rational reason for appeals to take longer than 6-10 years, on average, that being 2-3.3 years , each, at the state supreme court, federal district court and federal circuit court levels. Cases accepted by SCOTUS are rare.
Utah needs to fix her mismanagement problem.
Sincerely, Dudley Sharp
1) see page 2 of document, titled "Incremental Impact for One Death Penalty Offender to Execution - State and Local, http://le.utah.gov/interim/2012/pdf/00002860.pdf
2) From email correspondence between myself and Gary Syphus, 2/15/16
3) "Utah one of 4 states whose inmate health care costs doubled", Brooke Adams, The Salt Lake Tribune, October 29, 2013
4) My cost numbers are based upon UDC published material in footnotes 3 and 4 and are, most likely, very close to the real numbers.
I have estimated $22,000/yr for geriatric LWOP prisoners (10% of prisoners) and a $1800/yr average for all those younger than geriatric (90% of prisoners), for an average cost of about $3700/yr/inmate, as per UDC (link, hereto) and an approximate 12 times greater cost for geriatric inmates than for the younger prisoners, also as per UDC in (3).
See Health Care Costs, Costs in Comparisons, UDC,
5) "The Painful Price of Aging Prisons", Washington Post, May 2, 2015
6) See Death Penalty Costs: California within
7) Death Penalty Costs vs Life Without Parole Costs: Study Protocol