# Wiles v. Bagley

> Court of Appeals for the Sixth Circuit · April 14, 2009 · 561 F.3d 636

URL: https://www.frixlaw.com/law-library/cases/9606739

## Case

- **Full name:** Mark W. WILES, Petitioner-Appellant, v. Margaret BAGLEY, Warden, Respondent-Appellee
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** April 14, 2009
- **Citations:** 561 F.3d 636; 2009 U.S. App. LEXIS 7789; 2009 WL 982087
- **Precedential status:** Published
- **Opinion:** Concurrence by Martin
- **Judges:** Martin, Siler, Sutton
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
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## Opinion text

CONCURRENCE
BOYCE F. MARTIN, JR., Circuit Judge, concurring.
I concur in the panel opinion. Wiles has not shown that his counsel was unconstitutionally ineffective during the mitigation phase of his trial.
* * *
Now in my thirtieth year as a judge on this Court, I have had an inside view of our system of capital punishment almost since the death penalty was reintroduced in the wake of Furman v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972). During that time, judges, lawyers, and elected officials have expended great time and resources attempting to ensure the fairness, proportionality, and accuracy that the Constitution demands of our system. But those efforts have utterly failed. Capital punishment in this country remains “arbitrary, biased, and so fundamentally flawed at its very core that it is beyond repair.” Moore v. Parker, 425 F.3d 250, 268 (6th Cir.2005) (Martin, J., dissenting). At the same time, the system’s necessary emphasis on competent representation, sound trial procedure, and searching post-conviction review has made it exceedingly expensive to maintain.
The system’s deep flaws and high costs raise a simple but important question: is the death penalty worth what it costs us? In my view, this broken system would not justify its costs even if it saved money, but those who do not agree may want to consider just how expensive the death penalty really is. Accordingly, I join Justice Stevens in calling for “a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces.” Baze v. Rees, — U.S. —, 128 S.Ct. 1520, 1548-49 , 170 L.Ed.2d 420 (2007) (Stevens, J., concurring). Such an evaluation, I believe, is particularly appropriate at a time when public funds are scarce and our state and federal governments are having to reevaluate their fiscal priorities. 1 Make no *643 mistake: the choice to pay for the death penalty is a choice not to pay for other public goods like roads, schools, parks, public works, emergency services, public transportation, and law enforcement. So we need to ask whether the death penalty is worth what we are sacrificing to maintain it.
And, while this is a matter that would benefit from further study, 2 the evidence indicates that, on average, every phase of a capital case is more expensive than in a non-capital case, and that the lifetime cost of a capital case is substantially more than the cost of incarcerating an inmate for life without parole. 3 Surprising as that may *644 seem, the reason for it is simple: “lawyers are more expensive than prison guards.” 4
To begin, capital cases involve more pretrial and trial costs than non-capital cases. 5 Capital cases are far less likely to be resolved through plea bargain, 6 and they generally require far greater time, support services, and expertise to prepare. 7 And capital trials are generally longer and more complex that non-capital trials. Beyond more attorneys and attorney time, capital cases tend to involve more experts and related expenses from experts and support staff. 8 They also require a “death-qualified” jury, 9 and bring the added costs of the “second trial” conducted during the penalty phase. 10 And, because both sides of a capital case are usually funded at public expense, these additional costs must be counted twice in calculating the added cost of a capital prosecution. 11
Capital cases also involve a significantly longer post-conviction appeal process than non-capital cases. Unlike non-capital cases, capital cases almost invariably proceed through all avenues of post-conviction relief, including direct appeal, state post-conviction proceedings, at least one federal *645 habeas petition, and multiple petitions for certiorari. Naturally, this is because capital defendants (and advocacy groups) have a much stronger motive to pursue post-conviction remedies. But that is their right. Plus, experience has shown that every stage of review is needed to guard against wrongful convictions and correct the unusually high rate of error that plagues capital cases. 12 However, the upshot of higher rates of collateral attack and reversal is that state and federal courts are packed with capital cases, 13 and the cases themselves take decades to wind their way through the system. 14 More appeals means more costs, regardless of why the appeals arise. And reversal means repeating all or part of the process and thus duplicating its time and expense.
So, in almost every way, capital cases are more expensive than non-capital cases. 15 And given the death penalty’s exorbitant costs and many basic flaws, it is clear to me that our scarce public resources can be put to better use. This is especially so given what the public is getting for its money — little more than the time of lawyers and judges and the “illusion” of capital punishment. 16 Moral ob *646 jections aside, the death penalty simply does not justify its expense.
Recent news reports indicate that the cost of the death penalty is becoming part of the public debate on capital punishment and has begun to influence policymaking. 17 That strikes me as a very positive development. I hope it continues.
. Here, I will focus on the public costs of capital punishment. But it has significant, often overlooked private costs as well. See, e.g., Thomas P. Sullivan, Efforts to Improve the Illinois Capital Punishment System: Worth the Cost?, 41 U. Rich. L.Rev. 935, 967 (2007) (noting “the psychological and often the financial injuries inflicted on victims' families," upon the defendant's family, and upon the defendants themselves); Charles S. Lanier & James R. Acker, Capital Punishment, The Moratorium Movement, and Empirical Ques *643 tions: Looking Beyond Innocence, Race, and Bad Lawyering in Death Penalty Cases, 10 Psych. Pub. Pol. & L. 577, 603 (2004) (discussing the "host of secondary victims” affected by capital punishment).
. See, e.g., Susan S. Everingham, Rand Corp., Investigating the costs of the Death Penalty in California (2008) (discussing challenges in assessing the total costs of the death penalty), available at www.rand.org/pubs/testimonies/ CT300/.
One aspect of this problem that merits further attention is the relationship between the threat of a capital charge and plea bargain rates. Compare Kent S. Scheidegger, Criminal Justice Legal Foundation, The Death Penalty and Plea Bargaining to Life Sentences (2009) (arguing that the availability of the death penalty affects plea bargain rates), available at www.cjlf.org/papers/wpaper09-01.pdf, with Ilyana Kuziemko, Does the Threat of the Death Penalty Affect Plea Bargaining in Murder Cases? Evidence from New York’s 1995 Reinstatement of Capital Punishment, 8 Am. L. & Econ. Rev. 116 (2006) (concluding that availability of a capital charge affects the terms of plea bargains but not their frequency).
. For data on the costs of state capital cases, see California Commission on the Fair Administration of Justice, Final Report 147 (2008) (estimating that a system of life without parole would save $121.2 million annually); John Roman, et al., Urban Institute, The Cost of the Death Penalty in Maryland 2 (2008) (finding that average lifetime cost of a capital case is $1.9 million more than the average non-capital case); Washington State Bar Association, Final Report of the Death Penalty Subcommittee of the Committee on Public Defense (2006) (finding that the cost of a capital trial and post-conviction proceedings is $467,000 more than life without parole); Mary E. Forsberg, New Jersey Policy Perspective, Money for Nothing? The Financial Cost of New Jersey’s Death Penalty (2005) (finding capital punishment created $253 million in additional costs from 1983 to 2005, or $11 million per year); State of Kansas, Legislative Division of Post Audit, Costs Incurred for Death Penalty Cases: A K-Goal Audit of the Department of Corrections 10 (2003) (estimating the median cost of a capital case to be $1.2 million through execution-70% more than life without parole); Indiana Criminal Law Study Commission, Commission Report on Capital Sentencing (2002) (finding death penalty system is 35-38% more costly than one of life without parole); S.V. Date, The High Price of Killing Killers: Death Penalty Prosecutions Cost Taxpayers Millions Annually, Palm Beach Post, Jan. 4, 2000, at 1A (estimating that the death penalty costs Florida an additional $51 million annually); Philip J. Cook & Donna B. Slawson, The Costs of Processing Murder Cases in North Carolina 78 (1993) ("The extra cost per execution of prosecuting a case capitally is more than $2.16 million.”); Christy Hoppe, Executions Cost Texas Millions Study Finds It’s Cheaper to lail Killers for Life, Dallas Morning News, Mar. 8, 1992, at 1 A (reporting that the cost of an average capital case was $2.3 million-three times as much as a non-capital case imposing a 40-year sentence); Pamela Manson, Matter of Life or Death: Capital Punishment Costly Despite Public Perception, It’s Cheaper to Keep Killers in Prison, Ariz. Republic, Aug. 23, 1993, at Al; Stephen Magagnini, Closing Death Row Would Save State $ 90 Million a Year, Sacramento Bee, Mar. 28, 1988, at Al; Robert Spangenberg & Elizabeth R. Walsh, Capital Punishment or Life Imprisonment? Some Cost Considerations, 23 Loyola L.A. L.Rev. 45 (1989); Mar-got Garey, Comment, The Cost of Taking a Life: Dollars and Sense of the Death Penalty, 18 U.C. Davis L.Rev. 1221 (1985).
For trial cost data on the federal level, see Jon B. Gould & Lisa Greenman, Judicial Conference Committee on Defender Services, Update on the Cost, Quality, and Availability of Defense Representation in Federal Death Penalty Cases *644 24 (2008) (finding the median defense cost of authorized cases to be $353,185 as opposed to $44,809 in non-authorized cases), available at www.uscourts.gov/defenderservices/FDPC_ Contents.cfm. The report does not address the costs of prosecution or post-conviction costs.
. U.C. Berkeley Law Professor Franklin Zimring, quoted in Sam Howe Verhovek, Across the U.S., Executions are Neither Swift Nor Cheap, N.Y. TIMES, Februaiy 22, 1995, at Al.
. See, e.g., Roman et al., supra note 3, at 30 ("The majority (70%) of the cost differential between a death notice and a non-death notice case occurs during the trial phase. This difference is due to a greater number of pretrial motions, longer and more intensive voir dire, longer trials and a greater amount of general preparation time.”).
. Roughly 95% of state and federal felony cases are resolved through plea bargain. Russell D. Covey, Fixed Justice: Reforming Plea Bargaining with Plea-Based Ceilings, 82 Tul. L.Rev. 1237, 1238 (2008). Most capital cases, on the other hand, proceed to trial. Alex Kozinski & Sean Gallagher, Death: The Ultimate Run-On Sentence, 46 Case W. Res. L.Rev. 1, 11 (1995) ("80% of capital cases go to trial.”); Gould & Greenman, supra note 3, at 18 (reporting that 65% of capital cases handled by federal defenders between 1998 and 2004 went to trial).
. See, e.g., American Bar Association, Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases 3 (rev. ed. 2003) ("[Djeath penalty cases have become so specialized that defense counsel have duties and functions definably different from those of counsel in ordinary criminal cases.”). The ABA Guidelines go on to outline these duties and functions in detail.
. Gould & Greenman, supra note 3, at 29 ("The use of experts has a substantial influence on case cost.... [E]xperts were utilized in both authorized and non-authorized cases. There is a significant difference, however, in the prevalence, and hence cost, of expert assistance between authorized and non-authorized cases.”).
. As the 2006 Report by the Washington State Bar explains, "Since a very large number of potential jurors likely will be excused, it is not uncommon for the court to summon over 1,000 potential jurors.... In a non-capital case, fewer than 100 potential jurors are typically summoned.” Final Report of the Death Penalty Subcommittee of the Committee on Public Defense, supra note 3, at 16. Capital cases also involve much more searching, individualized voir dire than non-capital cases. As a result, jury selection in a capital case can take a month instead of one or two days. Id. at 16-17.
. See generally American Bar Association, Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases (2008).
. "[Vjeiy few” capital defendants can afford to pay for their own defense, so they rely upon public defenders or counsel appointed by the court under the Criminal Justice Act. Gould & Greenman, supra note 3, at 16-17.
. A prominent study of state and federal capital cases between 1973 and 1995 fixed the overall error rate in capital cases at 68% (as opposed to 15% in non-capital cases). James S. Liebman, Jeffrey Fagan & Valerie West, A Broken System: Error Rates in Capital Cases 1973-1995 at 8-9 (2000), available at www2.law.columbia.edu/instructionalser-vices/liebman/. The study further found that 40% of the death sentences that were upheld on direct appeal and through state post-conviction were subsequently overturned during federal habeas proceedings. Id. at 6.
. Including Wiles, 118 of Ohio's 166 death row inmates (71%) have cases pending in federal court. Richard Cordray, Ohio Attorney General, Capital Crimes Annual Report: State and Federal Cases 2008 at 22 (2009). 28 more (17%) have cases pending in state court. Id.
. This case, involving a death sentence imposed in 1986 (when the law clerk assisting me on this case was three years old), is unexceptional in this regard. The average elapsed time from sentence to execution in 2007 was 153 months' — twelve years and nine months. Tracy L. Snell, Bureau of Justice Statistics, Capital Punishment, 2007 — Statistical Tables (2008), available at www.ojp.usdoj.gov/bjs/ pub/html/cp/2007/cp07st.htm. The median elapsed time since sentencing for inmates on death row at the end of 2007 was 133 months. Id.
. This is in spite of the fact that capital defense services continue to be underfunded, much to the prejudice of indigent capital defendants. See generally Stephen Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime, but for the Worst Lawyer, 103 Yale L.J. 1835 (1994); see also Aba Moratorium Implementation Project, State Death Penalty Assessments: Key Findings (2007) (finding, among other things, "[Tjhat ... (4) Capital indigent defense systems, whether statewide or county-by-county, generally are significantly underfunded; (5) Many states are failing to provide for the appointment of two lawyers at all stages of a capital case, nor are they guaranteeing access to investigators and mitigation specialists; (6) Many states are requiring only minimal training and experience for attorneys handling death penalty cases; and (7) The compensation paid to appointed capital defense attorneys is often woefidly inadequate, dipping to well under $50 per hour in some cases”) (emphasis added).
.Kozinski & Gallagher, supra note 6, at 3. Only nine of the thirty-six states which retain the death penalty carried out executions in 2008, a year in which there was a total of thirty-seven executions nationwide. Snell, supra note 14. At the end of 2007, there were 3,220 prisoners on death row. Id.
Whatever one’s opinion of the intractable debate over deterrence, the empirical evidence is too inconclusive to warrant much weight. See generally John J. Donohue & Justin Wolfers, Uses and Abuses of Empirical Evidence in the Death Penalty Debate, 58 Stan. L.Rev. 791 (2005) (conducting an exhaustive review of the empirical literature on the death penalty and concluding, “Our estimates suggest not just 'reasonable doubt’ about whether there is any deterrent effect of the death pen *646 alty, but profound uncertainty. We are confident that the effects are not large, but we remain unsure even of whether they are positive or negative”).
. See, e.g., Opponents Focus on Cost in Death Penalty Debate (National Public Radio April 1, 2009); Judy Kerr, What Pnce Vengeance, San Francisco Chronicle, Mar. 13, 2009, at A15; Saving Lives and Money, The Economist, Mar. 12, 2009, available at www. economi st.com/world/unitedstates/displayS-tory.cfm?story_id=13279051; Michelle Mill-hollon, Economics of Executions, Advocate Capitol News, Mar. 8, 2009, at 1A; Deborah Hastings, In Hard Times, Executions Become a Question of Cost, Associated Press, March 7, 2009, available at ww w.usato-day.com/news/nation/2009-03-07-exepen-sive-to-execute_N.htm; Steve Mills, In Many States, Cost is Slowly Killing Death Penalty, Chicago Tribune, March 7, 2009, available at archives.chicagotribune.com/ 2009/mar/07/nation/chi-death-penalty-costs-mar08; Abigail Goldman, Debating the Cost of the Death Penalty, Las Vegas Sun, March 4, 2009, available at ww w.lasvegas-sun.com/news/2009/mar/04/debating-cost-death-penalty/; Martha Bellisle, Nevada Bill Requires Moratoñum, Study of Death Penalty Cost, Reno Gazette-Journal, March 3, 2009, available at www.rgj.com/article/20090303/ NEWS 18/90303060; Ed Quillen, The Death Penalty’s Costs, Denver Post, March 1, 2009, available at www.denverpost.com/ perspective/cL-11795714; Ian Urbina, Citing Cost, States Consider End to Death Penalty, N.Y. Times, February 25, 2009, at Al.
In addition to New Mexico, which abolished the death penalty on March 18, 2009, a number of states, including Colorado, Nevada, Montana, Nebraska, Kansas, Maryland, and New Hampshire are reconsidering their capital punishment policies, in part because the cost of the death penalty. Colorado, for example, is currently considering a bill (H.B.09-1274) that proposes to abolish the death penalty and instead spend the money saved on investigating cold cases.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9606739. Public record. Not legal advice.