The New York Times

A Slow Death

March 15, 2007
Section A; Column 2; Editorial Desk; Pg. 27
Correction Appended
Late Edition - Final

By Frederic Block
Frederic Block is a judge for the United States District Court in Brooklyn.

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.

URL: http://www.nytimes.com

CORRECTION-DATE: March 17, 2007

CORRECTION:

An Op-Ed article on Thursday, about the cost of death penalty cases,
misstated the number of state death row inmates who have been exonerated. Since
1973, 123 have been exonerated, according to the Death Penalty Information
Center, not 197.