A Slow Death

By Frederic Block, a judge for the United States District Court in Brooklyn (THE NEW YORK TIMES, 15/03/07):

WHILE New York State does not subscribe to the death penalty for the moment, the federal government does. Over the last few years there has been a surge in death penalty prosecutions authorized by the United States attorney general, both nationwide and in federal cases in New York. But these have resulted in disproportionately few death penalty verdicts, at enormous costs and burdens to the judicial system. A more prudent and realistic approach in the way the government seeks the death penalty is warranted.

Federal death penalty prosecutions reappeared in 1988, and since 1990 the attorneys general have authorized 416 prosecutions nationwide: 180 during the 1990s, an average of 18 per year; and 236 from 2000 to the present, a jump to almost 40 per year. In New York State, 12 were authorized during the 1990s; since then, 30 more.

Given the time required to prepare and defend against a death penalty prosecution, many of those cases have yet to be tried. Of those that have been tried, 50 resulted in death penalty verdicts. But because of the long judicial review process before someone is put to death, there have been only three federal executions, the most notable being Timothy McVeigh’s. (One benefit of this protracted process is that 197 state death row inmates have been exonerated.)

In New York, 17 of the authorized cases have been tried, but only one death penalty verdict returned — the recent case against Ronell Wilson, convicted of murdering two police officers. In the Eastern District of New York (covering Brooklyn, Queens, Staten Island and Nassau and Suffolk Counties), where I am a judge, there were three death penalty trials from 1990 to 2005. That number was already matched this year, and there are six more cases scheduled for trial.

What have all these death penalty prosecutions cost the taxpayers, who pay for both defense — the Constitution guarantees the right to counsel for those who, as is usually the case, can’t afford it — and prosecution?

I recently presided over a trial in which the jury quickly rejected the death penalty. The vouchers submitted by the defense alone exceeded $500,000. Assuming the cost of prosecution to be at least equal (efforts to obtain that figure from the Department of Justice were unavailing), $1 million would be a fair estimate for the trial alone. Had there been a death verdict, an appeal would have added many more dollars.

Thus, we have probably spent more than $17 million on the 17 federal death penalty trials in New York State, with one death verdict to show for it. And taxpayers will be footing the $9 million bill for the nine death penalty cases in the Eastern District.

All this as the federal judicial system is struggling with unprecedented budget cuts. In the Eastern District, some 25 assistant United States attorney positions remain unfilled, presumably contributing to a marked reduction (38 percent from 2003 to 2005) in criminal filings. The Probation Department’s budget has been cut by $680,000 from the last fiscal year (making it harder to keep tabs on former inmates requiring supervision), and Pre-Trial Services’ by almost $100,000 (making it harder to supervise those on bail awaiting trial).

And while the Marshals Service has been called upon to provide additional resources and security to handle the surfeit of death penalty cases, its operating budget, exclusive of salaries, has been cut by about 32 percent, from $549,000 to $375,000. During the death penalty case I recently presided over, I was told that the Marshals Service had no funds to provide security for the jurors, requiring money to be taken initially from the court’s budget.

Costs are not the only concern. The nine cases in my court this year have been distributed among the court’s 24 judges. It takes about three weeks to select a jury qualified for a death penalty case, and months to try the case; judges will therefore be less available for other judicial work. Similarly, a death penalty prosecution depletes the resources of the prosecutor’s office, making it more difficult to attend to the backlog of cases that don’t involve the death penalty.

What should be done?

In 1995, Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit, who is highly regarded by the conservative Federalist Society and who is not opposed to the death penalty, gave a speech at Case Western Reserve University of Law in which he noted that “the number of executions compared to the number of people who have been sentenced to death is minuscule” and concluded that “whatever purposes the death penalty is said to serve — deterrence, retribution, assuaging the pain suffered by victims’ families — those purposes are not served by the system as it now operates.”

Judge Kozinski added that the costs of death penalty prosecutions far outweighed the results, and that because of the proliferation of such prosecutions “there would have to be one execution every day for the next 26 years” to handle the volume. He recommended that death penalty prosecutions should only be brought against “the most depraved killers.” This, he said, would ensure that we convict only as many people as “we truly have the means and the will to execute” and that “the few who suffer the death penalty really are the worst of the very bad — mass murderers, hired killers, terrorists.”

I find myself in agreement with my colleague, whose observations have come home to roost. But before we can effect change, we must understand how cases become death penalty prosecutions.

In 1972, in the landmark case of Furman v. Georgia, the Supreme Court declared unconstitutional all capital punishment statutes that provided unguided and unchecked discretion to jurors in deciding who should live or die. This effectively invalidated all existing federal death penalties. Federal death penalty prosecutions lay dormant until 1988, when Congress enacted detailed constitutional procedures; at that time, only drug-related homicides were eligible for the death penalty. In 1994, a year before Judge Kozinski’s speech, Congress enacted the Federal Death Penalty Act, which, by the Department of Justice’s count, added the possibility of the death penalty for 60 more offenses under 13 existing and 28 new statutes.

With the federal government back in the business of death penalty prosecutions, the critical task of selecting whom to prosecute was given to the attorney general: an internal Attorney General’s Review Committee on Capital Cases makes a recommendation to the attorney general (after receiving the local United States attorney’s recommendation and submissions from defense counsel), who then makes the final decision.

Therefore, it is incumbent on the attorney general, in discharging his awesome responsibility, to heed Judge Kozinski’s advice that the death penalty should only be for the most depraved killers. He should also note Justice Clarence Thomas’s observation, writing for the Supreme Court majority in a capital case, that the government has “a strong interest in having the jury express the conscience of the community on the ultimate question of life or death.”

In convicting Mr. Wilson and rejecting the death penalty in all of the other 16 death penalty cases, New Yorkers have sent a clear signal to the attorney general: He should be more circumspect and realistic in authorizing death penalty prosecutions, lest the judicial system be overwhelmed, the community’s will ignored and taxpayer dollars improvidently spent.