Capital cases are very expensive. Indeed, their expense is one of the reasons that people call for changes in how they are handled. Those accused of and convicted on capital charges get many opportunities to challenge what has happened to them, with appeals sometimes dragging on for years. Should the public pay for all of this?
Those who have been victimized by these people naturally object to the lengthy delays before “justice” is finally served. Thus, there are regular demands for reductions in how often a person can appeal the government’s desire to kill him. Even so, the costs are high — but otherwise cost-sensitive politicians don’t seem to mind so much.
William Weld, when he was Massachusetts Governor, defended a pricey death penalty bill by saying “You can’t put a price on justice.” But of course, that is exactly what he did whenever it came to funding welfare programs or other social services — usually cutting the programs in order to save money. Perhaps there was no price to be put on criminal justice, but social or economic justice did indeed have a price.
Despite the options for appeal, it is worth noting that much less gets spent on actually defending someone accused of a capital crime than gets spent on the prosecution. Most of those who are accused cannot afford their own lawyers, so they are defended by overworked, underpaid, ineffectual employees of a local Public Defender’s office, a group which rarely has the resources to mount an adequate, much less a vigorous defense. Some have been known to simply fall asleep during a trial.
To understand just how bad public defense can be, it is important to learn more about the process of habeus corpus. This “Great Writ” ensures that federal courts, which are the arbiters of our Constitution, review death sentences handed down in state courts. The point of this review is to determine whether or not the defendant’s constitutional rights were violated — and, in 40% of the cases, federal courts overturn convictions because of serious constitutional errors made in the defense.
Of course, so many convictions being overturned upsets death penalty supporters, so they have labored to restrict habeus corpus rights — thus effectively restricting how much justice a person can receive. In 1991, the Supreme Court ruled in McClesky v. Zant that a person must present all claims of constitutional violations with their first petition — failure to do so, even their failure to do so was not deliberate or not their fault.
Is this justice? Usually the “cost” of justice is measured in terms of dollars and cents, but perhaps it should also be measured in terms of lives and tears. When people languish in jail because the state failed to adequately defend them, that is injustice of the worst sort — and when they are released without restitution or even sometimes apology, that’s salt poured in an open wound.
How much should be spent to ensure that this doesn’t happen? How much would be too much to spend? Would your answer depend upon whether you were a member of a social, racial, or ethnic group that was at risk of being arrested and convicted of a crime that you can’t afford to defend against?
In the ideal world, justice wouldn’t come with a price tag attached — seeing justice done would be important enough to pursue no matter what. We live in the real world, however, not an ideal world and in the real world justice comes with a price tag that we have to care about. Perhaps justice can come with too high of a price tag. I’m not sure, though, how we will be able to determine when that line is crossed.
