Legal Commentary

Death Penalty Is Tough On Budgets

By TChris

During the last three decades, whenever tough-on-crime conservatives would read stories about an execution delayed for years by legal challenges, we would hear their familiar complaints about frivolous appeals and abuses of the writ and how litigious inmates waste everybody's time when they should just get on with dying. Sometimes the complaints motivated tough-on-fairness laws that limited an inmate's opportunity to seek review of a conviction or sentence.

In tough economic times, voters are learning a fiscal truth: tough-on-crime policies are tough on budgets. These days, when a newspaper reports that California may spend $5 million more to keep inmate Michael Ray Burgener on death row than it would have spent if he'd been sentenced to life without parole, the tired rhetoric of tough-on-crimers is less relevant to voters than the budgetary impact of being smart-on-crime. Even in states that are less dysfunctional than California, a death sentence costs up to $2 million more than a life sentence. That's one reason why three states have repealed the death penalty in the last five years, and why calls to replace it with a less costly alternative are increasingly heard in other states.

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As for the tough-on-crimers who think Burgener has gamed the system by staying alive for the last 28 years, Burgener's victories illustrate that his challenges are legitimate.

Burgener's first death sentence was overturned because his attorney, at Burgener's request, failed to argue or present any evidence that Burgener should not be put to death. ... In 1988 -- seven years after the first verdict -- another jury gave Burgener the death penalty, but the trial judge reduced it to life without possibility of parole. An appeals court overturned that decision, saying the judge had considered impermissible factors and should stick to the requirements of the Penal Code.

In 1991, another judge, the late Ronald R. Heumann, read the entire penalty retrial transcripts and denied Burgener's request for a life sentence. The state high court again overturned the death sentence, this time on the grounds that Heumann had failed to exercise independent judgment and relied only on the jury's findings.

The case returned to Heumann, who once again imposed the death penalty. It was overturned because he had granted Burgener's request to represent himself without warning him of the danger of doing so.

Burgener can't be blamed for complaining to an appellate court -- correctly -- that the sentencing judge failed to give a constitutionally mandated warning before ordering his death. A warning about the dangers of self-representation and a colloquy sufficient to make a record that Burgener understood and accepted the risk might have taken 15 minutes. If California's judges always followed the law in death penalty cases with meticulous care, the system wouldn't seem so dysfunctional. If the tough-on-crime crowd wanted to do some good, it would get tough-on-careless-judges.

Full post as published by TalkLeft on May 18, 2009 (boomark / email).