How California and Texas May Help End the Death Penalty

In the Golden State, it costs too much to execute the guilty - and in the Lone Star State they've likely killed an innocent

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In the latter half of the 19th Century, French writer Louis Rousselet traveled to India, where he observed a form of capital punishment that he deemed "the most frightful that can possibly be imagined." The condemned was bound hand and foot. A long cord was passed around his waist. And the other end was tied to an elephant.

"The latter is urged into a rapid trot in the streets, and every step gives the cord a violent jerk, which makes the body of the condemned wretch bound on the pavement," Rousselet wrote. "The only hope that remains for the unhappy man is to be killed by one of these shocks; if not, after traversing the city, he is released, and, by a refinement of cruelty, a glass of water is given him. Then his head is placed upon a stone, and the elephant executioner crushes it beneath his enormous foot."

That does sound barbaric.

But is it any worse than the end that Lynda Lyon Block met in 2002? She was the most recent American to be strapped into a metal chair and electrocuted. Supreme Court Justice William Brennan once described that process as follows: "The prisoner's eyeballs sometimes pop out and rest on his cheeks. The prisoner often defecates, urinates, and vomits blood and drool. The body turns bright red as its temperature rises, and the prisoner's flesh swells and his skin stretches to the point of breaking. Sometimes the prisoner catches fire....Witnesses hear a loud and sustained sound like bacon frying, and the sickly sweet smell of burning flesh permeates the chamber." Six days out of seven I'd prefer taking my chances with the agitated elephant.

Of course, the U.S. has all but abandoned the electric chair. The last state to use it as the sole method of execution, Nebraska, now deems it cruel and unusual, while four states maintain it as an optional but rarely chosen form of execution. Lethal injection is currently the favorite method. In 2010, there were 46 executions: 44 by lethal injection, one by the electric chair, one by firing squad. Is today's preferred method also destined to go the way of the elephant and the electric chair?

I think so.

Those who disagree have strong arguments on their side. 3,094 inmates are currently on death row. They hail from 38 states. And 64 percent of Americans said in 2010 that they favor death sentences for murderers.

On the other hand, most Western countries that once used the death penalty have since abolished it, as have states including Alaska, Hawaii, Illinois, Iowa, Maine, Michigan, Minnesota, New Jersey, New Mexico, North Dakota, Rhode Island, Vermont, West Virginia and Wisconsin.

What I wonder is whether California is next. And if even Texas might one day follow. These populous, influential states are both going to be grappling with the death penalty in coming months, though for different reasons. In California, we're cash strapped, which makes the latest cost assessment of the death penalty bad news for its supporters. As the LA Times reports:

Taxpayers have spent more than $4 billion on capital punishment in California since it was reinstated in 1978, or about $308 million for each of the 13 executions carried out since then, according to a comprehensive analysis of the death penalty's costs. The examination of state, federal and local expenditures for capital cases, conducted over three years by a senior federal judge and a law professor, estimated that the additional costs of capital trials, enhanced security on death row and legal representation for the condemned adds $184 million to the budget each year... the tab for maintaining the death penalty will climb to $9 billion by 2030, when San Quentin's death row will have swollen to well over 1,000 prisoners.

Counterintuitively, the death penalty in California is actually more costly than imprisoning people for life. Abolishing capital punishment would reportedly yield a billion dollars in savings every five or six years:

The state's 714 death row prisoners cost $184 million more per year than those sentenced to life in prison without the possibility of parole. A death penalty prosecution costs up to 20 times as much as a life-without-parole case. The least expensive death penalty trial costs $1.1 million more than the most expensive life-without-parole case. Jury selection in a capital case runs three to four weeks longer and costs $200,000 more than in life-without-parole cases. The state pays up to $300,000 for attorneys to represent each capital inmate on appeal.

The cost is so high partly because special care is required when a penalty is irreversible. And that brings us to the state of Texas, and the possible entry of Gov. Rick Perry into the race for the GOP nomination.

The farther he goes, the worse things will get for death penalty supporters, due to a part of his record that his critics are already highlighting: his shocking negligence in the case of Cameron Todd Willingham, a man put to death on his watch who was very likely innocent, and certainly wasn't guilty beyond a reasonable doubt. Perry has presided over a couple hundred executions. Even one of them emerging as a national issue could change the whole political calculus around capital punishment. What if America's governors were just as fearful of executing an innocent in an age of DNA as they are of granting clemency to someone who goes on to commit another crime?

California or Texas getting rid of capital punishment would be a significant blow against the practice. And taken together, events in those states suggest that it's very difficult to get the death penalty right. Due diligence to ensure innocents aren't executed can easily get so costly that continuing to pursue capital cases is a bad use of taxpayer resources. And insufficient due diligence can result in the execution of an innocent person - something most voters find even more barbaric and revolting than the notion of strapping a legitimately guilty man to an elephant.

Image credit: Wikimedia Commons