Reader Bill Millan forwarded my criticism of the recent L.A. Times article on the cost of the death penalty to Mr. Rone Tempest, the reporter who wrote the piece. Mr. Millan received a lengthy response from Mr. Tempest, and forwarded it to me. Since Mr. Tempest’s e-mail responded to the points made in my post, I sent Mr. Tempest an e-mail in response. The lengthy e-mail exchange is reprinted in the extended entry.

Here is Mr. Tempest’s response:

Dear Mr. Millan, thanks for your message. I appreciate your interest although not at all your(or Mr. Patterico’s) suggestion of bias. I’m the author of the article. I am not opposed to the death penalty. You should be more careful, sir, about your own assumptions.

As to your critique: There is a big difference between death penalty cases and Life wihout Parole (LWOPs) that increase the cost. Death penalty cases have an "automatic" appeal to the state Supreme Court; LWOP’s do not. The US Supreme Court has instructed lower courts to take special care with death cases that the lower courts have translated into providing qualified counsel, usually two attorneys through all the appeals. This is not true of LWOPs. The institutions I mentioned California Appellate Project; Habeas Corpus Resource Center, even the Office of the State Public Defender__handle only death penalty cases, not LWOPs. There are no equivalent state-funded institions for the life without parole appeals. As you probably know already, there are many more LWOPS issued each year than death penalties. The cost to the public for appeals, however, is only a fraction of the death penalty cases. Death penalty cases are so costly that federal judges have to have special budget meetings to discuss them. Appeals courts are much more reluctant to accept LWOP appeals than they are death cases.

Your are wrong in your assertion that the article relects the cost of doing nothing at all. For example, the numbers on the extra cost of housing death row inmates came directly from the Dept. of Corrections. They estimate that it costs $90,000 more a year to house a death row inmate than the averag $30,000 it costs to house inmate in the general prison population, including LWOPs.

Finally I ran all these numbers by the relevant parties on both sides of the death penalty issue: the department of corrections; attorney general’s office (capital punishment section); US REp. Dan Lungren and both pro and con death penalty organizations.

I am a dilligent, careful reporter with 40 years experience. I take my work very seriously. My number, if you wish to discuss this more, is [Mr. Tempest gives his telephone number here].

Sincerely, Rone Tempest, Senior Correspondent

Here is the text of the e-mail I sent to Mr. Tempest:

Dear Mr. Tempest,

I am the author of the “Patterico’s Pontifications” blog. A reader of my blog, Bill Millan, forwarded to you my criticism of your recent story on the cost of the death penalty. He sent me your response.

I think it is admirable that you took the time to respond at length to Mr. Millan, and to address the criticisms in my blog post. Many journalists would simply ignore such criticisms.

However, you appear not to have fully understood my main point: in assessing the cost of the death penalty, you include the entire amount spent litigating appeals filed by capital murder defendants. Your article makes no effort to subtract the amount that those appeals would cost if they were LWOP (life without the possibility of parole) cases. Instead, you simply add up the sums spent by various agencies on appeals of death cases ($11 million by the Attorney General’s office, $11.8 million for defense counsel appointed by the state Supreme Court, $11.3 million for the Office of the State Public Defender, $11 million for the Habeas Corpus Resource Center, and $12 million for federal public defenders — a total of about $57 million) and include this entire sum as a cost of the death penalty.

This approach is flawed. If capital defendants were sentenced to life instead of death, they would still appeal their murder convictions at state expense. Your article implicitly assumes that it would cost the state nothing to litigate such appeals.

For example, when you asked Bill Lockyer what percentage of his criminal division budget he devotes to capital cases, he said 15%, or about $11 million annually. But you stopped there. You should have asked him to estimate how much those cases would cost to defend if they were LWOP cases. (I am certain that the answer is not zero.) Then you should have subtracted that amount from $11 million. That, and not $11 million, would accurately reflect the extra cost of the death penalty to the Attorney General’s Office.

The same logic applies to your questioning of the agencies who handle death penalty appeals on behalf of the defense. It is entirely irrelevant to this analysis that the organizations mentioned in your article handle only death penalty cases. If the death penalty were ruled unconstitutional tomorrow, most of the appeals handled by these organizations would continue to be litigated as to the guilt phase issues. Whether those appeals were handled by those organizations or by other attorneys is of no moment. The state would continue to be responsible for the expense, which would likely run into the millions of dollars.

These are the sorts of questions you should have asked if you were comparing the cost of the death penalty to the cost of LWOP.

Prosecuting and defending appeals of death penalty cases as LWOP cases would probably cost the state millions. In LWOP cases, as in any felony case, defendants are entitled to an appeal to the intermediate appellate court as of right — and are entitled to appointed counsel for that appeal. Almost every defendant facing LWOP after a murder conviction seeks review of his conviction, and the Court of Appeal must entertain such appeals. (The Court of Appeal is spared hearing death cases, which are appealed directly to the Supreme Court in a more streamlined process.) In every such appeal, transcripts must be ordered. Attorneys must be assigned to investigate grounds of appeal, read trial transcripts, conduct legal research, file briefs, and prepare and conduct oral arguments — on both sides of the aisle. Because LWOP cannot be imposed absent a finding of at least one special circumstance by the jury, the issues involved are more complex than for the average murder case.

As you point out to Mr. Millan, the process of appealing LWOP murder convictions certainly does not cost as much as death cases — but it just as certainly costs more than zero. How much cheaper are LWOP cases than death penalty cases? Your article indicates no attempt on your part to learn the answer and communicate it to your readers. Indeed, as I said in my post, your article does not even recognize the issue; rather, it implicitly assumes that the state would save the entire amount currently spent on appeals of capital cases. That is a completely unwarranted and incorrect assumption, which renders your figures defective. My educated guess is that your figures are low to the tune of millions of dollars.

As to the extra costs of incarcerating Death Row prisoners, your article indicates that “it costs $90,000 more a year to house an inmate on death row, where each person has a private cell and extra guards, than in the general prison population.” Unlike the assessment of the cost of appeals, in this area you seem to have done the basic assessment properly — taking into account the fact that, if these prisoners were sentenced to LWOP instead of death, they would still have to be housed in prison, which would cost something.

Even in this area, however, I am skeptical that you asked the right questions. Would the worst murderers with the worst records really all be housed in the general population if they received an LWOP sentence? Would none of them be segregated in a maximum security facility or wing? Are all LWOP prisoners currently housed in the general population? Did you ask?

Moreover, there is another issue that your article overlooks entirely: some murderers plead to life to avoid the possibility of a death sentence. In each such case, these plea bargains save the state the cost of a trial and an appeal. These plea bargains are made possible by the death penalty. But your article does not tell us how often such plea bargains occur, and how many millions of dollars are saved each year as a result. Indeed, you appear to have made no effort to investigate this issue; I am not sure whether it even occurred to you. The potential for such savings is nowhere mentioned in your article.

I am pleased to hear that the above errors and omissions were not caused by bias on your part against the death penalty. In my opinion, your paper has a history of distorting facts in favor of criminal defendants, and my frustration with this pattern may have caused me to paint with too broad a brush in assuming that bias explained the errors in the article. To be fair to you, I don’t know your work apart from this article. So: if I made an unfair assumption about your personal views, I apologize to you for that.

But ultimately, the point is not why the errors occurred, but that they did. For the reasons I have stated, your article has overstated the cost of capital punishment in California. I take you at your word that you take your work very seriously. I assume that accuracy is very important to you. Accordingly, I think you should endeavor to correct the logical errors in your article, and report a more accurate estimate of the true costs of the death penalty.

I have published your response to Mr. Millan on my blog, along with this e-mail. I would be happy to print any response you might have to this e-mail in its entirety.

Thank you for your time.

Yours truly,

Patrick Frey
Patterico’s Pontifications
https://patterico.com