Colorado’s Death Penalty: Spending Millions to Execute Almost No One

With a bill to repeal the death penalty likely to be introduced in the 2013 Colorado Legislature, there are bound to be philosophical arguments about the merits of capital punishment. One thing that seems beyond debate, though, is that ending the death penalty could save Colorado taxpayers a lot of money.

No one can say exactly how much Colorado spends administering its death penalty, but it is certainly in the tens of millions of dollars for each person executed. A study by the Death Penalty Information Center in 2009 found that states with a death penalty spend an average of $10 million a year enforcing it. That same study said that 70 percent of the expense stems from legal work that’s not necessary in non-capital cases. Considering that Colorado executed one man in 1967 and one in 1997, the cost associated with killing almost no one quickly adds up.

“Since 1980, we [Colorado taxpayers] have spent tens of millions of dollars on one execution,” said criminal defense attorney David Lane who has represented many death-penalty eligible clients. “That’s money that could go to schools. It could go to police officers.”

“Since 1980, we have spent tens of millions of dollars on one execution.”

One man alone, Nathan Dunlap, is said to have cost the state around $18 million so far in trial costs and attorney fees. Dunlap–convicted in 1996 of the 1993 killing of four people at an Aurora Chuck E. Cheese’s restaurant–is still on death row.

When a case meanders through the court system for 20 years as Dunlap’s case has, it is easy to see how it can get expensive for taxpayers. The public foots the bill for most defendants, who typically are indigent. State-funded defense teams usually have at least two attorneys, who are capped at a billing rate of $85 an hour. They also include at least one or two full-time investigators, who bill $39 hourly to review all evidence uncovered by police and to dig up new evidence that the police may have missed. For $25 an hour, at least one paralegal organizes all the scheduling and paperwork, which in a death case that is active for many years can easily run into tens of thousands of pages. Paralegals transcribe tapes of calls and meetings, arrange travel and court appearances, and keep up with massive amounts of correspondence.

Most cases also require a dozen or more expert witnesses whom the state pays whatever the market demands – often well above $200 an hour — plus travel and other expenses. “We try to pay less, believe me,” said Lindy Frolich, executive director of Colorado’s Alternate Defense Counsel, the state agency that appoints private defense teams when the state Public Defender’s Office has a conflict of interest.

Such conflicts arise when two defendants are being tried for the same crime and also at the appeal stage, when it would be hard for attorneys who lost a death case to then argue that they had screwed up.

Richard Dieter, executive director of national anti-death penalty group The Death Penalty Information Center, says several states have tried to cap how much can be spent on defense expenses. Some states haven’t wanted to pay for so-called mitigation specialists who look for mitigating factors in a defendant’s background that may persuade a jury not to hand down a death sentence. Their research entails deeply investigating many aspects of a client’s history such as school records, mental illness in the family and accounts from teachers, childhood friends and neighbors, to name a few. Although the hours are long and the cost is high, the law requires defense teams to prepare thorough defenses. “The Supreme Court has said you have to investigate a defendant’s past,” Dieter said. “You have to defend your client to the full extent that you can.”

States’ attempts to cap defense costs are becoming a thing of the past as verdicts or death sentences have been overturned by higher courts. “If the defense says they need a mental health expert and the state won’t pay for it, then a higher court is going to throw that out on appeal and you will end up paying for two trials,” said Dieter.

“You have to defend your client to the full extent that you can.”

In the end, he noted, there’s really no way to hold defense expenses down in capital cases, which take far longer to prepare for than murder cases in which defendants aren’t facing a possible death sentence.

“These people are all working full time for years on most death cases,” said Frolich.

“It is easily six months of 65-hour weeks for at least three attorneys before they even get to trial,” added Lisa Cisneros, executive director of Coloradans for Alternatives to the Death Penalty.

Colorado taxpayers are picking up the tab to defend an average of six to seven death penalty cases each year, according to a legislative analysis prepared by Colorado legislative staff for a failed 2009 bill to abolish the death penalty. Frolich said ADC is currently handling the defense in three death penalty cases, all of which have been going on for years and all of which she said look like they will be active for many more years.

“I don’t see any of these cases being finished in the near future,” she said.

State Public Defender Doug Wilson estimated that abolition would save his agency at least a million dollars a year.

“There is no average case,” he said. “In some cases you have one victim, in another case you might have eight.”

The 2009 study shows that eliminating capital punishment then would have saved the state about $1.5 million a year–the bulk of which would have come from the costs of providing legal representation to criminal defendants facing possible death sentences. The document says the cost of defending a death penalty case averages about 15 times the cost of defending a non-death-penalty murder case. From 1997 to 2009, the ADC spent $11.5 million on death penalty defense.

Defense costs have gone up since 2009. “Over the past three to four years, we have spent an average of $2 million to $3 million a year on death penalty cases,” Frolich said. The reason costs are especially high right now, she explained, is that two cases are in the unitary appeal stage, where both their convictions and their death sentences are being appealed simultaneously in different courts. She said her group has four teams of attorneys working on four concurrent appeals for those two defendants.

The unified appeals process was created by the State Legislature in 1997 as a way to speed up the appeal process. Robert Ray and Sir Mario Owens are the first two defendants in the state affected by the new process. Frolich said the unitary appeal may not cost more than separate appeals, but they cost more in the short term. The unitary appeal process is currently subject to a lawsuit that seeks to have Colorado go back to a system of consecutive rather than simultaneous appeals.

“Everything states do to try to save money or speed up the process seems to end up costing them more in the long run,” said Cisneros.

Virtually everyone The Colorado Independent interviewed said the 2009 legislative fiscal analysis substantially underestimated what eliminating the death penalty would save the state. It offered no estimates of how much counties are spending to prosecute capital cases. And it didn’t calculate the cost to the Attorney General’s office, which often dispatches its lawyers to monitor death penalty cases.

“Everything states do to try to save money or speed up the process seems to end up costing them more in the long run.”

An analysis by Coloradans for Alternatives to the Death Penalty (CADP) found that in two recent death penalty cases (one of which resulted in a conviction that was overturned and the other in an acquittal), the Attorney General’s office spent more than $1.4 million on the salaries of attorneys monitoring the trials.

Those trials, of David Bueno and Alejandro Perez for the 2004 murder of fellow inmate Jeffrey Heird inside a state prison, were held in the 18th Judicial District, which billed the cost of prosecution to the Department of Corrections. The total billed by prosecutors to the state was more than $650,000.

Colorado's death row is at the Sterling Correctional Facility. (Image:DOC)

Using the Colorado Open Records Act and other means to get documents from the agencies involved, CADP determined that those two trials alone cost the state more than $5 million without resulting in a death penalty. Had death penalties been handed down in both cases, the state likely would have spent similar amounts in at least two additional rounds of appeals.

“Those are numbers we know. But overall, it is very difficult to get a handle on the numbers,” said Cisneros.

In the case of Edward Montour, several prosecutors, a team of defense attorneys and an Attorney General’s office lawyer representing the Department of Corrections have been working pretty much non-stop for 10 years.

Montour–who is represented in part by Lane–was convicted of killing prison guard Eric Autobee in 2002 while already serving a term of life without parole for another murder.

“Because death is on the table, we are spending huge amounts of money to save him and prosecutors are spending huge amounts of money to kill him,” Lane said.

Each trial or appeal requires a new team of attorneys, who need to review dozens of boxes of case files before they can even begin work on a case. Sometimes defendants fire an attorney or a whole team of attorneys and, again, the new team has to spend months just getting up to speed learning the facts of the case, familiarizing themselves with the evidence, understanding the case law and developing a relationship with their client.

Wilson said there are other costs the state picks up for both the defense and the prosecution, including lab work done by the Colorado Bureau of Investigation. The total cost “is a really hard number to wrap your head around,” he said.

Over the past decade, the only jurisdiction to spend much money prosecuting death cases is the 18th Judicial District, which encompasses Arapahoe and Douglas counties.

The ADC’s Frolich said that in six years her agency hasn’t dealt with a single death case that didn’t originate in the 18th.

Former State Rep. Paul Weissmann, who led the charge to abolish the death penalty in 2009, said the bill he pushed then stipulated that the money saved by repealing the death penalty go to solving cold cases. Rep. Claire Levy, D-Boulder, who is spearheading this year’s effort but has not yet introduced a bill, said she will probably not specify where the savings go if her proposed bill becomes law.

“With many states spending millions to retain the death penalty, while seldom or never carrying out an execution, the death penalty is turning into a very expensive form of life without parole,” said Dieter, of the Death Penalty Information Center, in a statement introducing a study done by his group: “Smart on Crime: Reconsidering the Death Penalty in a Time of Economic Crisis,” published in 2009.

From that study:

“The high costs to the state per execution reflect the following reality: For a single death penalty trial, the state may pay $1 million more than for a non-death penalty trial. But only one in every three capital trials may result in a death sentence, so the true cost of that death sentence is $3 million. Further down the road, only one in ten of the death sentences handed down may result in an execution. Hence, the cost to the state to reach that one execution is $30 million. Sums like these are causing officials to rethink the wisdom of such expenditures. Although arriving at the actual cost of the death penalty in a state is complicated, in some states $30 million per execution is a very conservative estimate.”

Some abolition supporters say cost alone is a good reason to end the death penalty.

“The death penalty is turning into a very expensive form of life without parole.”

“The death penalty is a failure from a practical point of view,” said Boulder County District Attorney Stan Garnett. In an email, he said the Boulder DA’s office has a budget of $4.6 million a year and prosecutes 1900 felonies a year. In 2012, he said Boulder prosecuted six homicides. He said a single death penalty case could cost the county more than $1 million, not counting the cost of the defense. He said the Nathan Dunlap case–which is still in the appeal process nearly 20 years after the initial prosecution–has cost the state nearly $18 million so far.

Tom Raynes, executive director of the Colorado District Attorneys Council, said asking whether the cost of the death penalty is reasonable is the wrong question. “You have to ask, ‘Are there crimes so bad that the only adequate response to the crime committed is the death penalty?’”

Raynes questions whether the legislature is the right body to decide the fate of the death penalty. “Maybe this is just too important for a legislature of 100 people to make the decision,” he said.

Rep. Rhonda Fields, D-Aurora, has said she is planning a bill that would refer the matter to voters in 2014. “I am not in support of repealing the death penalty,” she said. “Citizens need to weigh in.”

Fields’ son, Javad Marshall-Fields, and his fiancee, Vivian Wolfe, were murdered in 2005. The man convicted of that crime, Sir Mario Owens, is on Colorado’s death row.

She said the death penalty needs to be an option for the most heinous crimes.

Fields is going against the grain as a Democrat who supports the death penalty. “Living without my son is hard. Taking a position in the Legislature that is unpopular in my party, that’s easy,” she said.

Sen. Lucia Guzman, D-Denver, said it is the Legislature’s responsibility to tackle big issues like this. “There might be an effort to refer this to the people for a vote, but we are elected and have the responsibility to bring about the best laws. That is our duty.” Guzman told The Colorado Independent that she plans to sponsor the abolition measure in the Senate.

“The death penalty is very costly to the state,” Guzman said. “Abolishing it would save the state millions down the road.”