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F I S C A L I M P A C T R E P O R T

SPONSOR Chasey

ORIGINAL DATE

LAST UPDATED

1/27/07

3/5/07 HB 190/aSPAC

SHORT TITLE Abolishing the Death Penalty

SB

ANALYST Ortiz

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Public Defender Department (PDD)

Corrections Department (CD)

Administrative Office of the Courts (AOC)

SUMMARY

Synopsis of SPAC Amendment

Senate Public Affairs Committee amendment inserts a new section 31-20A-5 NMSA 1978,

which limits the aggravating circumstances to be considered by the sentencing court or jury,

adding the word deliberate to the intent to kill. Thus, the defendant must have committed the

murder with the deliberate intent to kill.

Synopsis of Original Bill

House Bill 190 abolishes the death penalty and in NMSA 1978, § 31-18-14, substitutes the

sentence of death with that of either life or life without the possibility of parole. The bill also

amends the Capital Felony Sentencing Act, NMSA 1978, § 31-20A-1, et seq., removing the

subsection concerning the jury’s determination of a life or death sentence.

FISCAL IMPLICATIONS

According to the Public Defender Department, abolishing the death penalty would save New

Mexico millions of dollars. The State Bar Task Force on the Administration of the Death

House Bill 190/aSPAC – Page

2

Penalty in New Mexico Final Report,

1

completed in 2004, outlines exactly why death penalty

cases are so costly: These cases require heightened standards for defense counsel and at least

two highly qualified defense attorneys at each stage of proceedings.

2

They require extensive trial

level litigation as well as constitutionally and statutorily mandated appeal.

3

Unlike any other

criminal trial, these cases demand that a certified court reporter transcribe all proceedings.

4

The

survivors of the victim should be accorded particular respect.

5

Jury selection is a long, arduous

process that potentially touches on the constitutional and religious rights of New Mexicans, and

costs at least four times as much as a non-death first-degree murder case.

6

Due to changes in

federal habeas corpus law, these cases must be long and thoroughly litigated in state court habeas

proceedings as well.

7

The Task Force ultimately recognized and recommended substantial

changes to the way death penalty cases are prosecuted and defended in New Mexico, which may

further increase costs.

Although a study has ever been done in New Mexico on the total costs of a death penalty case to

the state (including the prosecution, the public defender, and the extensive drain on court

resources.), a recent Duke University study done on North Carolina’s costs found that the death

penalty costs North Carolina $2.16 million dollars per execution over a system that imposes life

imprisonment.

8

New Mexico does not receive much return on its death penalty investment. Fewer than half of

the cases in which the prosecutor seeks the death penalty end in a death sentence. And,

according to the National Bureau of Justice Statistics, 68% of all these convictions are

overturned on appeal—the highest overturn rate in the United States.

9

Therefore, fewer than

one-fourth of all death penalty prosecutions ultimately result in a defendant going to death row in

New Mexico. Finally, New Mexico’s actual execution rate is even lower than the 12% of all

convicted and sentenced murderers ultimately executed, nationally.

10

Taking this data to its

logical conclusion, there is only a 4.5% chance that any multi-million dollar death penalty

prosecution will ever end in an execution in New Mexico.

According to the Administrative Office of the Courts, Moreover, to assemble a jury for a death

penalty case, the district court will summon as many as one thousand (1,000) people. An

estimate of what a death penalty case cost for the jury and witness fee fund is approximately

1

State Bar of New Mexico Task Force to Study the Administration of the Death Penalty in New Mexico Final

Report, submitted to the Board of Bar Commissioners January 23, 2004 (The Honorable Rudy S. Apodaca and Jerry

Todd Wertheim, co-chairs), available online at

http://www.nmbar.org/Content/NavigationMenu/Publications_Media/Reports_Surveys/Report_on_the_Death_Penal

ty/TskfrcDthPnltyRprt.pdf

.

2

Id. at 7-10. See also American Bar Association, Guidelines for the Appointment and Performance of Defense

Counsel in Death Penalty Cases (February 2003).

3

Id. at 12-21.

4

Id. at 22.

5

Id..

6

State Bar of New Mexico Task Force to Study the Administration of the Death Penalty in New Mexico

Final Report at 23; Telephone conversation with court administrator Fern Goodman, 2/1/05. Fern

estimated that the costs to be $20-25,000 for a death jury and $7-8,000 for a non-death jury. This is her

conservative estimate, and it does not include the costs of a change of venue or the cost of bringing

witnesses or experts concerning juror exposure and venue.

7

Id. at 24.

8

P. Cook, “The Costs of Processing Murder Cases in North Carolina," Duke University, May 1993.

9

U.S. Dept. of Justice, Bureau of Justice Statistics, “Capital Punishment 2003," appendix Table 4, 2004.

10

U.S. Dept. of Justice, Bureau of Justice Statistics, “Capital Punishment 2003," appendix Table 4, 2004.

House Bill 190/aSPAC – Page

3

$20,000-$25,000. In contrast, a non-death penalty murder case cost approximately $7,000-

$8,000.

SIGNIFICANT ISSUES

According to the Correction Department the bill could result in a moderate placement burden on

the Department. Because the Department currently operates all of its facilities at or near

capacity, it would be difficult to continually absorb new offenders who have been sentenced to

life without the possibility of release or parole. If large numbers of offenders are convicted and

sentenced under the provisions of the bill, it may become necessary for the state to build new

facilities or enlarge those already in existence.

PERFORMANCE IMPLICATIONS

The Public Defender Department reports that this bill would greatly streamline the litigation and

appeal of what are now death penalty cases, because it will eliminate the death penalty specific

pre-trial appeals, the greatly expanded jury selection, and the bifurcated trial procedures (a guilt

phase and a penalty phase trial) that are now required under the Capital Felony Sentencing Act to

comply with the United States Constitution Eighth Amendment’s prohibition against cruel and

unusual punishment. Abolishment of the death penalty would also negate the Capital Felony

Sentencing Act’s detailed appellate review in the New Mexico Supreme Court.

EO/mt