Purpose:
To provide a more complete accounting of Pa.’s capital punishment costs from 1978 to 2018 by estimating costs of cases in which death was sought by the prosecution but a different sentence was given by the jury. Previous analyses of Pa.’s death penalty costs have not accounted for cases in which death was sought but not given.

Main Findings:
Pa.’s death penalty cost more than $1.05 billion for the time period 1978-2018. This includes $277 million spent on cases in which prosecutors sought death but the jury returned a different sentence.

Methods and Data Collection:
Per-case cost figures from the Urban Institute’s 2008 analysis of Maryland’s death penalty were applied to case data from Pa. in order to calculate the cost of Pa.’s death penalty from 1978-2018. This follows the methodology used by the Reading Eagle in their 2016 cost analysis. Case data were collected and analyzed for two groups based on their sentencing disposition: 1) individuals who were sentenced to death in Pa., and 2) individuals for whom death was sought but a different sentence was given.
Data were collected in three steps. First, the Maryland study was analyzed to isolate the per-case cost for the two groups of sentencing dispositions. Next, the number of individuals sentenced to death in Pa. from 1978 through 2018 was determined using two sources: a Reading Eagle report for death sentences from 1978-2014, and the Death Penalty Information Center for death sentences from 2015-2018. Finally, the number of individuals for whom death was sought but not given from 2011-2017 was determined.
From 1978 – 2018 a total of three individuals were executed.
The case data from 2011-2017 was used to calculate the rate of individuals for whom death was sought but not returned relative to individuals who received a death sentence. This rate was extrapolated to estimate the number of individuals for whom death was sought but not returned from 1978-2018.

Results:
The Urban Institute’s study found that a typical case resulting in a death sentence costs $1.9 million more than a comparable case in which death is not sought and that a case in which death is sought but not given costs $670,000 more than a comparable case in which death is not sought. A total of 414 individuals were sentenced to death in Pa. from 1978 to 2018: 408 from 1978 to 2014, and six from 2015 to 2018. The Atlantic Center for Capital Representation’s data showed that death was sought but not returned against 25 individuals from 2011-2017 and death was sought and returned against 24 individuals.
Dividing 25 failed attempts by 24 successful attempts yields a rate of 1.04 individuals who had death sought but not returned for each individual who was sentenced to death. Extrapolating from that rate produces one failed attempt for every successful attempt to sentence an individual to death. Since 414 people have been sentenced to death in Pa. from 1978 to 2018 death and 414 people against whom death was sought but not returned. The actual number of individuals to be considered is 828.
The total cost of death sentences was determined by multiplying $1.9 million (the cost a case with a death sentence, according to the Urban Institute), by 414 (the number of individuals sentenced to death in Pa.), which equals $786.8 million. The total cost of seeking but not getting death was determined by multiplying $670,000 (the cost a case in which death is sought but not given, according to the Urban Institute), by 414 (the estimated number of individuals in Pa. who had death sought but not given), which equals $277.38 million. Adding these together ($786.8 M and $277.38 M) produces the total cost of Pa.’s capital punishment system at $1.06398 billion.

In formulaic terms,
C = 1.9ds + 0.67nds, where
C = Total cost of the death penalty system (in $ millions)
1.9 = Cost of a death sentence (in $ millions)
ds = number of individuals sentenced to death
0.67 = Cost of seeking and not getting a death sentence (in $ millions)
nds = number of individuals who had death sought against them but received a different sentence

The data show that ds = 414 and nds = 414. Therefore,

C = 1.9ds + 0.67nds
➔ C = 1.9(414)+0.67(414)
➔ C = 786.6 + 277.38
➔ C = 1,063.98

The above calculation shows that the cost of Pa.’s death penalty from 1978 to 2018 is approximately $1.06 billion. Over a quarter of this total was spent unsuccessfully pursuing the death penalty ($277.38 million).

$1.06 billion is the extra cost of seeking death rather than life without parole. None of that money would have been spent if the Commonwealth had not reinstated the death penalty.

Implications
● Pa. spent $1.06 billion to produce three executions
○ 99.5% of this was spent on cases that have not produced executions.
● Trying and not getting = complete waste
● Getting a death sentence but later removed from death row = complete waste

Limitations:

● No single source documents all cases in which death was sought but not given in Pa. Extrapolating from the 2011-2017 sample overcomes this limitation, but does not eliminate the possibility that the true number of individuals who had death sought but not given may differ from the rate found here.
● Cases in which death was sought but not given were only included in this analysis if they reached the penalty phase of the trial as a capital case. The Atlantic Center’s data shows more than 300 cases from 2011-2017 in which death was sought but withdrawn before the penalty phase, either because the case was de-deathed, the defendant accepted a plea deal, or the defendant was not convicted of a capital murder charge. Costs associated with these cases were not included in this analysis.
● The Urban Institute’s cost-per-case numbers were calculated in 2008 dollars. The costs reported in this analysis are also given in 2008 dollars and do not account for any subsequent inflation.

Recommendations to reduce long-term exposure

Establish statewide capital defense resources including Center for indigent defense to handle all capital cases
Oversight by an independent commission
Fair compensation and caseloads in alignment with ABA standards
Access to appropriate funding for mitigation services
Centralized database of capital case

• The legislature should act to

Pass Racial Justice Act
Institute statutory proportionality review
Return to a relaxed waiver
Maintain physical and forensic evidence while defendant is incarcerated
Review and improve written jury instructions to ensure that they are clear to jurors
Determine intellectual disability in the pre-trial stage
Consolidate aggravating factors
Make information on lethal injection drugs accessible