Patterico's Pontifications

3/8/2005

Exchange with L.A. Times Reporter About Death Penalty Article

Filed under: Crime,Dog Trainer — Patterico @ 9:37 pm

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
http://patterico.com

12 Responses to “Exchange with L.A. Times Reporter About Death Penalty Article”

  1. […] e, I’ll remind you, their readers. Speaking of which, I’ve heard nothing from Rone Tempest about his flawed article on the de […]

    Patterico's Pontifications » More on Transparency (0c6a63)

  2. […] ibed the financial cost of pursuing the death penalty in California.” Undeterred, I wrote the reporter responsible for the article, […]

    Patterico's Pontifications » Filling in the Potholes of Falsehood (0c6a63)

  3. Re:

    Hum, you didn’t mentioned that you’re also a prosecutor, and you actually spoke from experience on just how much it takes to appeal any given case.

    BigFire (b30455)

  4. I thought about it, but didn’t feel the need to rely on that. The illogic of the article is enough.

    As it happens, I can tell you that any conviction I get after a trial where the defendant goes to prison for any length of time is bound to be appealed. As the trial lawyer, I get copies of the appellate briefs. I got one such brief just today, as a matter of fact.

    Patterico (756436)

  5. Glad I was able to serve as a messenger. You must have struck a nerve with your article for me to get that answer. You will notice that Rone “CC’d” his response to me to a couple of his editors. I knew the details of this subject was over my head. It will be interesting to see if Rone responds. Your mention of his courtesy in responding to me echoes my comments to him. I send quite a few very polite emails to reporters about their articles nationwide, and almost never get a response. They really seem to be uncomfortable with the concept of talking to their readers.

    Bill Millan (8e0fb5)

  6. LAT v. Patterico
    Patterico engages the LAT on a recent article they ran on the death penalty. See some our writings on the death penalty….

    Local Liberty (a8d754)

  7. Mr. Tempest seems to think that Patterio is arguing that there is no difference in costs between death penalty case and LWOP cases.
    Obviously, this is not Patterio’s argument, which should be plain to anyone interested in open debate.
    Kudos to Mr. Tempest for replying. I can’t say the same for missing the point.

    Boman (5777e4)

  8. Another issue not addressed: Why does it take 20 and 30 years of appeals before an execution can occur? Is this particular to California? To the 9th Circuit? How much money does the death penalty process (versus LWOP) cost in other states with the death penaly? Is this cost largely imposed by a foot-dragging appeals system rather than some inherant problem? Etc.

    In short, why are confessed and beyond-any-doubt-guilty murderers like Richard Ramirez still engaged in these costly appeals?

    Kevin Murphy (9982dd)

  9. He’s wrong about the California Appellate Project, too- they do everyone.

    The Angry Clam (c96486)

  10. Just out of curiousity I typed the name Rone Tempest into my search engine and found your article. I knew Mr. Tempest briefly way back in the early 1970’s when we both lived in Norman, Oklahoma. He was a reporter then, too, working for one of the Oklahoma City papers. Interesting guy. I think he had actually gotten a philosophy degree from Stanford, if I remember correctly. Nice to know he’s still out there working as a journalist. We shared an interesting group of friends that included a young Iranian woman named Azar Nafici who went on to write a best selling memoir a couple of years ago entitled “Reading Lolita in Tehran.” Quite a story. And as for the subject of the death penalty, here’s my thoughts, short and to the point: 1)The death penalty is not uniformly applied, which is evidenced by the fact that we have upward of fifty thousand murders each year and only execute at most a dozen murderers, 2) As of this time at least 100 death row inmates have been exonerated after trial by new DNA evidence, clearly demonstrating failings in the system, 3) It places a terrible emotional and psychological burden upon prison staff to have to terminate the lives of inmates that they have often come to know well over a period of many years, 4) I believe Rone’s point that the appeals process is excessively expensive is well taken, 5) Life without parole may be a harsher punishment than lethal injection when you consider the misery of spending decades behind bars with no hope of parole, 6) Half the states in this country don’t even execute prisoners for murder anyway. BOTTOM LINE: Although I fully agree that the death penalty is an appropriate punishment for the most heinous crimes in our society, when you add it all up the death penalty is really more trouble than it’s worth.
    -Jerry Redmond

    Jerry Redmond (f4f15c)

  11. Yeah, but about my point about how the article misrepresented the facts?

    Oh yeah — you don’t care. Just like Mr. Tempest doesn’t care.

    Patterico (91fd36)

  12. Mr. Redmond, I’ll say that this article was one of the most blatant misrepresentations of the facts I have seen in over three years of writing about this paper — and your friend Mr. Tempest never responded to my lengthy e-mail.

    I conclude he just doesn’t care about accuracy. At all.

    Patterico (91fd36)


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