04/03/2013 04:08 pm ET | Updated Jun 03, 2013

The Death Penalty Spectacle

Now that local prosecutors in Colorado have rejected the offer by alleged Aurora mass shooter James Holmes to plead guilty in exchange for avoiding the death penalty, we can once again ask whether it's worth it to incur the extra cost involved with capital punishment, compared to life imprisonment.

One study by a retired federal judge (a Reagan appointee, if that matters to you) argues that California has spent over $4 billion since 1978 because of the death penalty, or about $308 million per actual execution. Other estimates are quite lower, but still on the order of $2 million or more per death row inmate, compared to simply locking that person up for life.

Even if one has no moral qualms about capital punishment, and no concerns about executing an innocent (i.e., wrongly convicted) person, the extra costs must give pause, especially given the current fiscal crises that numerous states are facing. My state of Oregon has added about a person per year to its death row. Assuming the more modest estimate, that's still $2+ million per year spent putting someone on death row, rather than on hiring more teachers, police officers, firefighters, bus drivers, or legal aid lawyers, among other possibilities.

But I must confess that, as persuaded as I am about the fiscal folly of capital punishment, especially in states like Oregon that put people on death row but never execute them (unless they "volunteer"), there's at least one situation in which I see a role for capital punishment.

Consider the example of Gary Haugen, who was sentenced to life imprisonment after being convicted of murder after he savagely beat his ex-girlfriend's mother to death. While in prison, Haugen and another inmate suspected (wrongly, as it turned out) that a fellow inmate, David Polin, had ratted them out to prison guards over their drug use. Haugen killed Polin by stabbing him over 80 times and smashing his head with a chair.

If the death penalty is eliminated, what then should be done with someone like Haugen? He was already serving a life sentence, so another life sentence would seem to be rather meaningless. (True, his previous sentence did allow for the possibility of parole, but it really seems unlikely that the loss of that infinitesmal chance of parole would qualify as meaningful punishment; it certainly didn't deter him from planning and carrying out Polin's murder.)

More importantly, while it is not the case that all murderers pose risks to other inmates, it seems undeniable that once someone already serving a life sentence then murders someone else (inmate, guard, etc.), that person is someone that the prison must protect other inmates from. After all, prisoners are effectively under control of the State and are not able to protect themselves fully. As the Supreme Court noted in Helling v. McKinney (1993), "That the Eighth Amendment protects against future harm to inmates is not a novel proposition." Indeed, as early as 1974, a federal appellate court concluded that exposed electrical wiring posed an unreasonable risk of harm to prison inmates. [Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974)]. Once someone like Haugen murders another prisoner because he thought that prisoner was informing on him, it's hard to see how Haugen is less dangerous than exposed electrical wiring.

So what should be done with someone like Haugen, not as retributive punishment, or even deterrence, but simply incapacitation to protect other inmates? One answer might be life imprisonment in solitary confinement, but solitary confinement is extremely controversial, with studies showing that it causes severe psychological harm. Solitary confinement is quickly becoming the next human rights battleground; for example, UN Special Rappoteur on Torture Juan Mendez has argued that indefinite solitary confinement constitutes torture in violation of the Convention Against Torture.

Notice that we face a three-way collision among irresistible forces and immovable objects: (1) the desire to eliminate the death penalty; (2) the need to protect inmates from proven in-prison murderers; and (3) the desire to avoid inflicting psychological and physiological suffering on those in-prison murderers via isolation/solitary confinement. It looks like one of these three goals has to give way.

I don't pretend to think that the death penalty is good policy. It's not for a variety of reasons. But if the choice is between being concerned about Gary Haugen's health/life, or that of the next potential David Polin, I have a hard time seeing why other inmates should have to live in fear that Haugen will suspect one of them of ratting him out and killing them. If that is so, human rights advocates need to think long and hard about which is worse, capital punishment or solitary confinement.

For more detailed discussion of this problem, along with a look at some other potential "solutions" drawn from high tech prisons in sci-fi movies like Fortress and Escape From New York, check out this paper of mine (free download!).