The Economics of Criminal Prosecution

It’s widely-known that criminal prosecutions involving the death penalty tend to be ridiculously expensive and time-consuming, often spanning several decades of litigation. For example, an analysis by Indiana found that the total cost of a death penalty case is around $100k to $500k. The cost shoots way up if a death sentence is actually imposed, almost entirely because of post-conviction appeals. By contrast, plain-vanilla murder prosecutions range from $4k to $40k.

There’s an inherent gravity associated with capital cases, obviously because the sentence imposed is irreversible. So the system purports to proceed extra carefully to minimize wrongful convictions as much as possible.

But as pointed out, regular imprisonment is also irreversible:

We can't rewind the clock and give back years of life wasted in prison. The best that we can do is compensate exonerated prisoners for the stolen time, which is often on the order of decades. This costs money, ideally quite a lot, and doesn't actually happen without incurring additional legal expenses, which also cost money. So one way or another, wrongful imprisonment is also a huge problem.

Given that reality, why exactly are death penalty costlier by orders of magnitude?

Part of the answer is just a realistic reflection of how resources get doled out. I'll use public defense to illustrate this case, because public defenders get assigned to deal with 80-90% of all criminal cases anyway. When you start out as a baby public defender like I did, bullshit cases just get shoveled onto your trough even though you have no idea what the fuck you are doing. I distinctly recall my alarm when I was essentially shoved onto the main stage to 'represent' a client facing 30 days in jail at a probation hearing on my first day. Part of it was bad management from the PD office, but in retrospect most of it was just getting desensitized to the penalties. Once you have a few years of felony work where the sentencing denominator is casually spoken of in terms of months, misdemeanor jail sentences doled out in terms of days just seem so darn quaint in contrast.

Every state is going to be different, but they generally have a structured system of certifications and qualifications for the defense attorneys appointed to cases. Part of it is just brute self-interest: the system knows that if it doesn't adequately vet the public defenders, they'd get a steady stream of ineffective assistance of counsel claims overturning convictions on appeal. You can see this explicitly enshrined when you consider which attorneys are "death penalty certified". Just to pick one example from that list for California:

(2) Be an active trial practitioner with at least 10 years’ litigation experience in the field of criminal law;

(3) Have prior experience as lead counsel in either:

(A) At least 10 serious or violent felony jury trials, including at least 2 murder cases, tried to argument, verdict, or final judgment; or

(B) At least 5 serious or violent felony jury trials, including at least 3 murder cases, tried to argument, verdict, or final judgment;

All of that will necessarily winnow down the pool of candidates. "Death penalty certified" attorneys are a very rare breed because it's considered the apogee of the field, and you have to compensate accordingly. It's also not unusual to have multiple attorneys assigned to each case, compounded by the fact that capital cases are by definition complicated and often take years to prepare and litigate (trials lasting months are normal).

When examining the economist cost of crime, analysts generally singularly focus on the cost of incarcerating individual prisoners. RAND tried to estimate the overall cost of prosecution by including costs from judges, courtroom staff, prosecutors, detectives, defense attorneys, experts, etc:

Researchers found that every reported homicide, for example, cost the judicial system $22,000 to $44,000. In other categories the costs were estimated at $2,000 to $5,000 for a rape or other sexual assault, $600 to $1,300 for a robbery, $800 to $2,100 for an aggravated assault, $200 to $600 for a burglary, $300 to $600 for larceny/theft, and $200 to $400 for a motor vehicle theft.

[Note: I haven't taken a deep dive into this study, but some of these figures strike me as extremely low based on what I tend to get paid for my own cases, which represents only one sliver of the total cost. I'm guessing it's including 'reported but unprosecuted' cases?]

A death sentence is irreversible. And although not to the same magnitude of finality, I acknowledge that imprisonment is also irreversible. But I'm also mindful of the fact that it's just not realistic to appoint a ludicrously qualified professional for each petty crime.