Oregon death penalty and costs of Oregon death penalty and costs of death penalty and sebastian shaw and sebastian alexander shaw

I wrote the following memorandum at the request of Mr. Richard Wolf of Portland, OR. Rich is a defense attorney and had contacted me about acting as an expert witness in the sentencing phase of the aggravated murder trial of Sebastian Shaw. After Mr. Shaw was convicted of aggravated murder by a Portland jury last month, the trial moved on to the sentencing phase, as required by law. Mr. Wolf wanted me to give testimony in mitigation of a possible sentence of death, and wanted me to research and present evidence about the cost of administering the death penalty in Oregon. No one had yet pulled these figures together, and so this memorandum plows untilled ground. However, the judge in the case decided to exclude my testimony. My memorandum, however, was introduced as a proffer, which means that it has become a public record. Rich also supports my release of the memorandum in this and the next essay so that you can understand some of the issues involved in calculating the cost of executing an inmate in Oregon.

One other preliminary comment is appropriate before presenting the memorandum. While the memo deals only with the "costs" of administering the death penalty, one also must consider the much more vague, but still real, "toll" of executing someone. That is, I use the word "cost" to speak of the dollars expended, but the word "toll" is a broader one, and I mean by it to suggest the kind of stress to the system and those in it which a death sentence provokes (i.e., extra counseling hours for lawyers, judges, staff of the execution; toll on families of victims who have to testify repeatedly; media attention directed to the "circus" surrounding execution, etc.). As mentioned, this memo only deals with the "costs." Someone else, on another occasion, will need to address the "toll" of the death penalty on us all.

1. Introduction to the Memorandum

The purpose of this memorandum is to compare the costs of administering the Oregon death penalty for one who pursues all his appeals as provided by law with the costs of life imprisonment without the possibility of parole for a defendant who has waived, at the trial court level, all rights to further appeals. Even though there are many numerical uncertainties in the cases as they go forward, the cost to put a person to death in Oregon is at least 50% more, and may be as much as five times, the cost of a sentence of life imprisonment without the possibility of parole.

2. Method and Uncertainties

We know many things about the cost of administering the death penalty in Oregon, but we cannot be sure in any particular case whether the "averages," cited below, will apply. Thus, the method of this memorandum is to provide as much information as we have, with caveats and clarifications along the way as it relates to particular cases. In pursuing this aim, I will first compare the costs of imprisonment of the defendant in these two situations and then calculate the costs of the various legal remedies available to the defendant who takes advantage of the legal routes open to him. One assumption I build into this memorandum is that the costs of appeals are about the same for both prosecution and defense. The fact that costs are "built-in" costs, which means that the cases are handled by staff members already on the payroll, does not mean that costs don't exist. They are impossible to calculate precisely. Thus, I am using a rule of thumb of doubling defense costs to discover the true costs of an appeal or post-conviction/habeas trial.

3. Costs of Incarceration

On March 29, 2006 I consulted with Ms. Norma Land of the Public Affairs office of the Oregon Department of Corrections. I asked her the question about costs of incarceration at OSP and whether they break out costs for different living situations of inmates--such as Intensive Management Unit (IMU) or Administrative Segregation (Ad Seg). After checking with the "budget people," she called me back to say that they did not break out costs for various living arrangements of inmates. Average cost per day for an inmate (ADC) is $67.53.

How much, then, would it cost to "house" the defendant under the two scenarios submitted above? Of course, that relates to how long a defendant will live and how long his death penalty appeals will take.

We don't know how long the average inmate will live if he is "LWOPed," but the longest continuous time served in the OSP by any current inmate is 37 years. This inmate, Jerry Brudos, died in the last two months, so it is unlikely that anyone else has served more than 35 consecutive years at the OSP. I am using a number of 40 years as an outer limit of years this defendant might live in OSP, though 30 years might be more accurate. According to actuarial tables widely available on the Net, a male born between 1960 and 1970 in America had a 66.9 year life expectancy at birth. [See http:/.www.efmoody.com/estate/lifeexpectancy.html, last visited April 18, 2006]. Defendant (Sebastian Shaw) is now 39 years old.

Housing an inmate for one year is 365 X $67.53, which equals $24,648.45. in current dollars. Forty years would cost $985,938.00, in current dollars. Thirty years results in a cost of $739,435.50

How about for a person sentenced to death? The Oregon Death Penalty Statute has been in place now for almost 22 years. To date we have executed two men under the statute (1996 and 1997), but both men waived their appeals beyond the mandatory direct appeal to the Oregon Supreme Court, and so their cases are inapposite. No one has yet been executed who has pursued his options fully. What we know is that at least 6 of the men on Death Row committed crimes that are 17 years old or more, and none of them might reasonably be executed in the next 10 years. Some of them, such as Guzek and Rogers, will probably not be executed until around 35-40 years after the crime, if not longer. However, the more recent death penalty cases seem to be moving more quickly, and it may be the case that executions in the future will happen within 20 years of crime. It simply is too early to tell.

Thus, for calculation purposes, a very conservative number of how many years a person will be housed in prison (both county, through trial and OSP) will be 20 years. A more realistic number would be between 22 and 25 years. If we did the math for these we would have the following:

If execution took place after 20 years, the costs for housing would be approximately $492,968 in current dollars. If we used a figure of 25 years, the cost of housing would be approximately $616,208. Thus, depending on which estimate we take, and assuming the inmate would live 40 years at OSP, the "savings" so far by executing a person are either: $492,969 (if 20 years) or $369,730 (if 25 years). If we take the more likely time spent at OSP as 30 years before death (not execution), the "savings" to execute a person are negligble. But then we have to consider the range of appeals open to a person sentenced to death, and the picture changes dramatically.

The next essay reviews these appellate costs.

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