Oregon death row inmate Gary Haugen has been in the news lately because he has asked to forego any remaining post-conviction appeals that he might have, which would clear the way for his execution. The judge in the case has ruled that Haugen is mentally competent to make this decision and signed an execution warrant. If all goes according to plan, Haugen will be executed by lethal injection on August 16.
Haugen would be only the third Oregon death row inmate to be executed since 1976, when the U.S. Supreme Court reversed a 1972 decision that ruled capital punishment unconstitutional. Like Haugen, the previous two inmates to be executed, Douglas Franklin Wright and Harry Charles Moore, also chose to abandon the appeals process before exhausting all their remedies.
In other words, of the 38 death row inmates since 1976, the only ones to be executed – including Haugen, if he is put to death – will be those who have essentially volunteered for it.
Capital punishment is expensive. Various studies estimate that the extra cost of a capital case above and beyond a sentence of life imprisonment without parole exceed $1 million. The extra costs are incurred for a number of reasons. First, because of constitutional requirements, capital cases require separate guilt and punishment phases – two trials, instead of one, which adds to the state’s fiscal burden in cases where indigent defendants are provided counsel and other financial assistance for investigators and the like. Second, because the stakes are so high, the amount of resources devoted to the case are correspondingly higher on both the prosecution and defense sides, as well as the courts. Any death sentence is automatically reviewed by the Oregon Supreme Court, whereas the state supreme court hears non-capital cases only in its discretion. Fourth, although there is no constitutional right to court-appointed counsel in federal habeas corpus matters (that is, post-conviction challenges in federal court to state convictions), federal law – 18 U.S.C. § 3599(2) – requires that indigent death row inmates be provided “the appointment of one or more attorneys and the furnishing of other services. . . .” The maximum rate of payment for such capital habeas counsel is $125/hour – modest when compared to the $1000/hour that top civil lawyers charge paying clients, but still a hefty $250,000 per year for full-time work. (Granted, the last cost is not one borne by Oregonians directly, as opposed to all American taxpayers.)
Yet, we seem to have the worst of both worlds in Oregon. We incur these extra costs but we carry out the death penalty so infrequently – perhaps never, if not for volunteers – that any deterrent effect is likely minimized. To the extent that the death penalty serves a retributive purpose, that too is lost when the sentence is not carried out. At a time when the state faces a crippling fiscal crisis, you have to wonder if it’s wise to spend $1-2 million just for the privilege of labeling them a “death row inmate,” compared to not incurring that cost and simply calling them a “lifer.”
True, 38 death row inmates since 1976 is not a lot – about one a year. The amount of money at issue is not terribly significant compared to the long term fiscal challenges that the state faces. Still, I can think of a lot of more useful things to spend $1-2 million a year on, ranging from several more public school teachers to victim restitution to more judges to more prosecutors and public defenders. If we’re not going to be like Texas or Florida – states that do carry out executions – and I’m not suggesting that we should, we really should think about why have the fiction of a death penalty.