Fiscal Note Package 34902

Multiple Agency Fiscal Note Summary

Bill Number: 1504 HB Title: Eliminating death penalty

Estimated Cash Receipts

Agency Name 2013-15 2015-17 2017-19 GF- State Total GF- State Total GF- State Total Office of Attorney General Non-zero but indeterminate cost. Please see discussion."

Total $ 0 0 0 0 0 0

Estimated Expenditures

Agency Name 2013-15 2015-17 2017-19 FTEs GF-State Total FTEs GF-State Total FTEs GF-State Total Administrative Office Non-zero but indeterminate cost and/or savings. Please see discussion. of the Courts Office of Public Non-zero but indeterminate cost and/or savings. Please see discussion. Defense Office of Attorney Non-zero but indeterminate cost and/or savings. Please see discussion. General Caseload Forecast .0 0 0 .0 0 0 .0 0 0 Council Department of Non-zero but indeterminate cost and/or savings. Please see discussion. Corrections

Total 0.0 $0 $0 0.0 $0 $0 0.0 $0 $0

Local Gov. Courts * Non-zero but indeterminate cost. Please see discussion. Local Gov. Other ** (3,900,000) (3,900,000) (3,900,000) Local Gov. Total (3,900,000) (3,900,000) (3,900,000)

Estimated Capital Budget Impact

NONE

Prepared by: Kate Davis, OFM Phone: Date Published:

(360) 902-0570 Final 3/ 5/2013

* See Office of the Administrator for the Courts judicial fiscal note

** See local government fiscal note FNPID 34902 : FNS029 Multi Agency rollup Judicial Impact Fiscal Note

Bill Number: 1504 HB Title: Eliminating death penalty Agency: 055-Admin Office of the Courts

Part I: Estimates

No Fiscal Impact

Estimated Cash Receipts to:

Account FY 2014 FY 2015 2013-15 2015-17 2017-19 Counties Cities Total $

Estimated Expenditures from:

Non-zero but indeterminate cost. Please see discussion.

The revenue and expenditure estimates on this page represent the most likely fiscal impact. Responsibility for expenditures may be subject to the provisions of RCW 43.135.060. Check applicable boxes and follow corresponding instructions: If fiscal impact is greater than $50,000 per fiscal year in the current biennium or in subsequent biennia, complete entire fiscal note form X Parts I-V. If fiscal impact is less than $50,000 per fiscal year in the current biennium or in subsequent biennia, complete this page only (Part I).

Capital budget impact, complete Part IV.

Legislative Contact Edie Adams Phone: 360-786-7180 Date: 02/28/2013

Agency Preparation: David Elliott Phone: 360-705-5229 Date: 03/01/2013

Agency Approval: Dirk Marler Phone: 360-705-5211 Date: 03/01/2013

OFM Review: David Dula Phone: (360) 902-0547 Date: 03/01/2013

Request # CJ-1 Form FN (Rev 1/00) 1 Bill # 1504 HB

FNS061 Judicial Impact Fiscal Note Part II: Narrative Explanation

II. A - Brief Description Of What The Measure Does That Has Fiscal Impact on the Courts

This bill would remove the capital penalty from statute.

Section 1 would amend RCW 10.95.030 to remove references to a special sentencing proceeding and the penalty of death, so that a person convicted of aggravated first degree murder shall be sentenced to life imprisonment without the possibility of release or parole.

Section 2 would repeal a number of sections RCW chapter 10.95 relating to court proceedings concerning a death sentence.

II. B - Cash Receipts Impact

None

II. C - Expenditures

There is not sufficient data available to estimate the fiscal impact of this bill. It is assumed there would be cost savings for the Supreme Court from not reviewing death penalty cases and Superior Courts from not trying death penalty cases. It is possible that the Court of Appeals could see a slight increase in appeals.

Because these cases are rare and each features different details and aggravating factors, and because the cases are before the supreme, appellate and superior courts over a period of years and before different justices and judges there is no way, without engaging in a longer term study, to determine costs for these cases. Caseload Forecast Council (CFC) data shows that there is an average of one death penalty conviction every five years.

The cost data provided below is to help inform readers on the typical costs involved.

Trial Courts: Superior Courts would achieve savings from no longer trying aggravated murder cases where the death penalty was a possible sentence upon conviction. A number of procedures and activities in death penalty cases add to the cost of these cases and many of these procedures and costs are discussed in the Washington State Bar Association (WSBA) “Final Report of the Death Penalty Subcommittee of the Committee on Public Defense,” published in December 2006. In cases where the death penalty is a potential sentence, a Supreme Court rule requires the appointment of two attorneys, with at least one attorney qualified to try capital cases. These cases require a “mitigation investigation,” which is information about the defendant’s past a jury may consider in deciding whether the sentence should be death or life without the possibility of parole. The mitigation information is also reviewed by the prosecutor in determining whether to file a notice of intent to seek the death penalty. The cost of mitigation investigations can be considerable. A recent investigation from Spokane County Superior Court has the cost of a single investigation and report at $19,479.

Compared to other felony cases in Superior Court, more time is spent in capital cases on complex pre-trial motions, legal challenges and jury selection. The WSBA report cites an Administrative Office of the Courts analysis that concludes that should a capital case last between 20 to 30 days longer than a typical felony case, “then the extra cost in terms of trial court operation would be $46,640 to $69,960.” It is important to note the increase in costs for capital cases varies from court to court.

Jury selection: Jury selection is more complex with many more jurors summoned than in a typical jury trial. Also, the process of selecting a jury is much more involved, with jurors having to provide additional written material and the court and attorneys reviewing these juror questionnaires. The WSBA report states that jury selection can “take as long as 30 days in a capital case.” In other cases jury selection takes a day, or sometimes two days. Should a jury find a defendant guilty of aggravated murder in the first degree then the same jury would convene for a “penalty phase.” In the penalty phase the jury decides whether the sentence should be death or life imprisonment without the possibility of parole. This phase can last from a few days to longer than a week.

Appellate Courts: As with Superior Courts, the Supreme Court would achieve savings by not hearing appeals of capital cases. In the Supreme Court an appeal of a capital case is mandatory for a review of the sentence and an appeal of the judgment. These cases by RCW require the Supreme Court to review specific issues concerning whether sufficient evidence existed to justify the jury’s determination of insufficient mitigating circumstances; whether the sentence was a product of passion or prejudice; whether the sentence is excessive or

Request # CJ-1 Form FN (Rev 1/00) 2 Bill # 1504 HB

FNS061 Judicial Impact Fiscal Note disproportionate to the penalty imposed in similar cases considering both the crime and the defendant; and whether the defendant an intellectual disability.

In the Supreme Court, additional procedures are required by Supreme Court rule. Two attorneys must be appointed to represent the defendant with one of these attorneys from the death penalty qualified list; every hearing must be transcribed and a proportionality analysis must be made; and the time for argument in capital cases is three times longer than in other cases.

If there is a Supreme Court decision that is adverse to the defendant, then within one year from that decision a Personal Restraint Petition (PRP) may be filed by the defendant in the Supreme Court that can raise issues not previously considered at the appellate or trial proceedings. These PRP proceedings also require that two attorneys be appointed, with at least one being an attorney qualified from the death penalty qualified list, the briefing to the court is increased, experts and investigators may be appointed and the hearing must be transcribed.

The amount of additional time that a Justice and staff assigned a capital case spends on such a case is considerably more than with other case assignments. It is estimated that currently the Supreme Court Clerk spends 10 to 15% of his time on capital cases while another member of the Clerk’s Office staff spends 20% of her time.

The Courts of Appeal might experience an increase in the number of appeals of sentences in aggravated first degree murder cases as the only possible sentence under this bill would be life imprisonment without possibility of release or parole. It is not possible to quantify this increase now, but it would be a small number of appeals. Part III: Expenditure Detail

Part IV: Capital Budget Impact

SOURCES: Caseload Forecast Council (CFC) Caseload Forecast Council (CFC) fiscal note Washington State Bar Association Washington State Bar Association Final Report of the Death Penalty Subcommittee of the Committee on Public Defense, December 2006 Washington Association of County Prosecutors (WAPA) Judicial Information System data

Request # CJ-1 Form FN (Rev 1/00) 3 Bill # 1504 HB

FNS061 Judicial Impact Fiscal Note Individual State Agency Fiscal Note

Bill Number: 1504 HB Title: Eliminating death penalty Agency: 056-Office of Public Defense

Part I: Estimates

No Fiscal Impact

Estimated Cash Receipts to:

NONE

Estimated Expenditures from:

Non-zero but indeterminate cost. Please see discussion.

Estimated Capital Budget Impact:

NONE

The cash receipts and expenditure estimates on this page represent the most likely fiscal impact. Factors impacting the precision of these estimates, and alternate ranges (if appropriate), are explained in Part II.

Check applicable boxes and follow corresponding instructions:

If fiscal impact is greater than $50,000 per fiscal year in the current biennium or in subsequent biennia, complete entire fiscal note X form Parts I-V.

If fiscal impact is less than $50,000 per fiscal year in the current biennium or in subsequent biennia, complete this page only (Part I).

Capital budget impact, complete Part IV.

Requires new rule making, complete Part V.

Legislative Contact: Edie Adams Phone: 360-786-7180 Date: 02/28/2013

Agency Preparation: Sophia Byrd McSherry Phone: 360-586-3164 Date: 03/05/2013

Agency Approval: Joanne Moore Phone: 360 956-2107 Date: 03/05/2013

OFM Review: Jim Albert Phone: (360) 902-0419 Date: 03/05/2013

Request # 056-1 Form FN (Rev 1/00) 1 Bill # 1504 HB

FNS063 Individual State Agency Fiscal Note Part II: Narrative Explanation

II. A - Brief Description Of What The Measure Does That Has Fiscal Impact Briefly describe by section number, the significant provisions of the bill, and any related workload or policy assumptions, that have revenue or expenditure impact on the responding agency.

Section 1 amends RCW 10.95.030 to provide that a person convicted of aggravated first degree murder shall be sentenced to life in prison without possibility of release or parole.

Section 2 repeals various provisions of Chapter 10.95 RCW that relate to proceedings concerning a death sentence.

II. B - Cash receipts Impact Briefly describe and quantify the cash receipts impact of the legislation on the responding agency, identifying the cash receipts provisions by section number and when appropriate the detail of the revenue sources. Briefly describe the factual basis of the assumptions and the method by which the cash receipts impact is derived. Explain how workload assumptions translate into estimates. Distinguish between one time and ongoing functions.

None.

II. C - Expenditures Briefly describe the agency expenditures necessary to implement this legislation (or savings resulting from this legislation), identifying by section number the provisions of the legislation that result in the expenditures (or savings). Briefly describe the factual basis of the assumptions and the method by which the expenditure impact is derived. Explain how workload assumptions translate into cost estimates. Distinguish between one time and ongoing functions.

The Washington State Office of Public Defense (OPD) administers state funding for indigent defense costs in the appellate courts for appellants who have a right to counsel on appeal. A person has an automatic right to appeal a death sentence directly to the Washington Supreme Court. RCW 10.95.100. If the Court affirms the sentence on direct appeal, the appellant may seek further review in a personal restraint petition (PRP) to the Supreme Court. RAP 16.3(c). The Court will appoint counsel at each level of review. RAP10.73.150.

OPD contracts with the Court-appointed appellate counsel for legal fees in each death penalty appeal. OPD also pays for all related defense costs, including transcription of trial proceedings, court files, and clerks' costs. Each death penalty appeal contains a voluminous record and takes multiple years to complete.

Since 2005, attorney contract fees and related defense costs for an individual appellant's death penalty appeal have ranged from approximately $300,000 to more than $400,000 per case over a multi-year period. Currently five appellants have appeals as of right or PRPs in the Washington Supreme Court.

At least four cases at the trial level currently are being tried as death penalty cases. (OPD is including in this count two cases where the prosecutor is appealing a ruling that would eliminate the death penalty as an option. The judge has said the cases will proceed as capital cases pending outcome of the prosecutor's interlocutory appeal.) Although indigent defense costs at the trial level are paid by the county, if any of these cases results in a death sentence, OPD would expect to pay $300,000 to $400,000 for the appeal as of right and the first PRP in each case (if the death sentence were affirmed on appeal).

In addition to cases under contract, OPD also pays for all successive PRPs filed by death penalty appellants where the Supreme Court has appointed counsel. One appellant has filed six successive PRPs.

Request # 056-1 Form FN (Rev 1/00) 2 Bill # 1504 HB

FNS063 Individual State Agency Fiscal Note Three other inmates are on Washington's death row, each in various stages of post-conviction review in the federal and state courts. Costs for discretionary PRPs range from $2,300 to $22,000, depending on the issues raised in the petition.

OPD also pays for counsel and indigent defense costs when the Supreme Court accepts a defense request for interlocutory review on a death penalty case during trial, before a death sentence has been issued. Defense costs in these matters vary widely, ranging from from $2,300 to $25,000.

The state death penalty appellate process for each appellant takes seven years or more. On average, the yearly amount OPD has paid on death penalty appellate cases is: • 2001-2004: $261,880 per year • 2005-2008: $84,610 per year • 2009-2012: $253,732 per year

The dip in costs in the middle period (2005-2008) occurred as many older cases were expiring and fewer new cases were being filed. Of the eight defendants currently on death row four were convicted before the year 2000. Only two defendants were sentenced to death in the trial courts between 2001 and 2009, one of whom won reversal on appeal and was resentenced in 2007, creating another round of appellate review. The most recent death sentence was issued in 2012.

OPD anticipates that at least four more death penalty trials could be completed within the next two years, which, depending on the outcome of the trials, could put in motion up to four new death penalty appeals.

Potential Savings associated with HB 1504: If HB 1504 is adopted, OPD would expect to save about 90 percent of its present death penalty appellate expenditures. Defense representation for typical aggravated murder appeals not involving the death penalty cost between $4,000 and $20,000, and there is no automatic right to counsel for filing a PRP in those cases. Therefore, OPD would expect four aggravated murder cases cumulatively to cost between $16,000 and $80,000, while appellate cases for four death penalty appellants cumulatively would cost approximately $1.2 million for $1.6 million over a multi-year period. Part III: Expenditure Detail

Part IV: Capital Budget Impact

NONE None.

Part V: New Rule Making Required Identify provisions of the measure that require the agency to adopt new administrative rules or repeal/revise existing rules.

Request # 056-1 Form FN (Rev 1/00) 3 Bill # 1504 HB

FNS063 Individual State Agency Fiscal Note Individual State Agency Fiscal Note

Bill Number: 1504 HB Title: Eliminating death penalty Agency: 100-Office of Attorney General

Part I: Estimates

No Fiscal Impact

Estimated Cash Receipts to:

Non-zero but indeterminate cost. Please see discussion.

Estimated Expenditures from:

Non-zero but indeterminate cost. Please see discussion.

Estimated Capital Budget Impact:

NONE

Check applicable boxes and follow corresponding instructions:

If fiscal impact is greater than $50,000 per fiscal year in the current biennium or in subsequent biennia, complete entire fiscal note X form Parts I-V.

If fiscal impact is less than $50,000 per fiscal year in the current biennium or in subsequent biennia, complete this page only (Part I).

Capital budget impact, complete Part IV.

Requires new rule making, complete Part V.

Legislative Contact: Edie Adams Phone: 360-786-7180 Date: 02/28/2013

Agency Preparation: Cam Comfort Phone: (360) 664-9429 Date: 03/01/2013

Agency Approval: Brendan VanderVelde Phone: 360 586-2104 Date: 03/01/2013

OFM Review: David Dula Phone: (360) 902-0547 Date: 03/04/2013

Request # 13-022 B-1 Form FN (Rev 1/00) 1 Bill # 1504 HB

FNS063 Individual State Agency Fiscal Note Part II: Narrative Explanation

Section 1 amends RCW 10.95.030 to require a sentence of life imprisonment without possibility of release or parole for any person convicted of the crime of aggravated first degree murder.

Section 2 repeals 19 statutes pertaining to the death penalty.

This bill is assumed effective July 1, 2013.

Indeterminate cash receipts.

There exist impacts for savings and costs associated with this bill.

Indeterminate expenditure impact.

The AGO has billed averaged approximately $200,000 per death penalty per case over the last 15 years. This amount includes habeas corpus proceedings and challenges to the execution of the sentence. The range of billings varies significantly by case, from approximately $100,000 to $400,000 per offender sentenced to death.

Assumptions:

1. We assume potential for cost savings associated with the enactment of this bill. The level of savings is indeterminate.

2. The AGO billed the DOC approximately $30,000 to $50,000 per year for non-case-related legal advice concerning death penalty matters over the last five (5) years. We assume these billings for legal advice concerning the death penalty would not occur if the death penalty were eliminated.

3. We assume that if this bill were enacted into law, the AGO would continue to receive and defend habeas corpus

Request # 13-022 B-1 Form FN (Rev 1/00) 2 Bill # 1504 HB

FNS063 Individual State Agency Fiscal Note challenges by offenders sentenced to life without parole (LWOP), but who otherwise were, or would have been, subject to the death penalty. For this reason, we assume the per-case billings reflected above would not be eliminated if the death penalty were abolished. Rather, we assume the AGO would continue to defend habeas corpus challenges to the lawfulness of the offender’s conviction, as we do now. We also would likely defend new challenges to the constitutionality of the automatic LWOP sentences for offenders previously subject to the death penalty.

4. We assume there would be litigation over the retroactive effect of this bill. This would result in new funding needed by the AGO.

5. We assume that introducing offenders previously subject to the death penalty into the population of existing LWOP offenders could lead to litigation challenging the constitutionality of LWOP sentences on proportionality grounds. The burden of defending such litigation would fall on the county prosecutors. Part III: Expenditure Detail

Part IV: Capital Budget Impact

NONE Part V: New Rule Making Required Identify provisions of the measure that require the agency to adopt new administrative rules or repeal/revise existing rules.

None.

Request # 13-022 B-1 Form FN (Rev 1/00) 3 Bill # 1504 HB

FNS063 Individual State Agency Fiscal Note Individual State Agency Fiscal Note

Bill Number: 1504 HB Title: Eliminating death penalty Agency: 101-Caseload Forecast Council

Part I: Estimates

X No Fiscal Impact

Check applicable boxes and follow corresponding instructions:

If fiscal impact is greater than $50,000 per fiscal year in the current biennium or in subsequent biennia, complete entire fiscal note

form Parts I-V.

If fiscal impact is less than $50,000 per fiscal year in the current biennium or in subsequent biennia, complete this page only (Part I).

Capital budget impact, complete Part IV.

Requires new rule making, complete Part V.

Legislative Contact: Edie Adams Phone: 360-786-7180 Date: 02/28/2013

Agency Preparation: Ed Vukich Phone: 360-664-9374 Date: 03/05/2013

Agency Approval: John Steiger Phone: 360-664-9370 Date: 03/05/2013

OFM Review: Cherie Berthon Phone: 360-902-0659 Date: 03/05/2013

Request # 13-060-1 Form FN (Rev 1/00) 1 Bill # 1504 HB

FNS063 Individual State Agency Fiscal Note Part II: Narrative Explanation

See the attachment.

None.

See the attachment. Part III: Expenditure Detail

Part IV: Capital Budget Impact

NONE None.

Part V: New Rule Making Required Identify provisions of the measure that require the agency to adopt new administrative rules or repeal/revise existing rules.

None.

Request # 13-060-1 Form FN (Rev 1/00) 2 Bill # 1504 HB

FNS063 Individual State Agency Fiscal Note HB 5372 REDUCING CRIMINAL JUSTICE EXPENSES BY ELIMINATING THE DEATH PENALTY IN FAVOR OF LIFE INCARCERATION 101 – Caseload Forecast Council March 5, 2013

SUMMARY A brief description of what the measure does that has fiscal impact. Section 1 amends RCW 10.95.030 by removing death as a possible sentence for aggravated first degree murder. Section 2 repeals the rest of Chapter 10.95 RCW except RCW 10.95.010, RCW 10.95.020 and RCW 10.95.901.

Note: In addition to the provisions of the bill, the following contain references to the death penalty and should be amended by the bill:  RCW 9.94A.500(1);  RCW 9.94A.510 (Seriousness Level XVI);  RCW 9.94A.570; and  RCW 9.94A.728.

Given the above provisions:  The death penalty will be repealed.

Ed Vukich, Senior Caseload Forecaster (360) 664-9374 Washington State Caseload Forecast Council [email protected]

EXPENDITURES Assumptions. The prison bed impacts for this bill are calculated under the following assumptions.  The analysis is based on the five executions that have taken place since May 14, 1981, and is focused on the length of time between admission to the Department of Corrections and execution for the current policy, and the length of time between admission to the Department of Corrections and estimated natural death for the proposed policy.  The analysis assumes that future executions will follow the same patterns as the five executions that have taken place: ▪ There will be the same number of executions in any given period as the five that have taken place (i.e., there will be no changes in crime rates, filings, plea agreement practices, prosecutorial behaviors, the number of death sentences or the number of death sentences that result in execution, etc.); ▪ The lengths of time for future executions, between admission to the Department of Corrections and execution, will be the same as for the five that have taken place; ▪ The lengths of time for future executions, between admission to the Department of Corrections and estimated natural death, will be the same as the estimations for the five that have taken place.  Admissions to the Department of Corrections are distributed evenly.  The time frame for the analysis in which the five executions took place is between July 27, 1989, and the end of the day of December 31, 2012.  In regard to the immediate previous assumption, since the death penalty statute (Chapter 138, Laws of 1981 and Chapter 10.95 RCW) became effective for offenses committed on or after May 14, 1981, the start of the time frame in which the five executions took place was adjusted from the effective date to July 27, 1989. This adjustment is based on the average length of time between the date of the offense and the date of execution for the five that have taken place (i.e., if a capital offense was committed on the effective date of the death penalty, the earliest the offender would be executed is the adjusted start date).  In calculating the adjusted start date, if an offender was sentenced to death for more than one offense, and those offenses occurred on different dates, the earliest offense date was employed.  Given the above, the five executions took place in a span of 281.193 months (23.433 years), resulting in one execution every 56.239 months (4.687 years). This means that there are 0.018 executions per month (0.213 per year).  Estimated lifespan is 70 years and is based on a report by The Sentencing Project (see the third note following the table at the top of the next page).  Under the proposed policy, offenders will serve their entire estimated lifespan confined in the Department of Corrections.  Prison bed impacts are calculated without a phase-in factor.

Please see the table at the top of the following page for the details of the five executions used in calculating the figures that serve as the basis of the analysis

Eliminating the Death Penalty in Favor of Life Incarceration March 5, 2013 HB 1504 Caseload Forecast Council 2 #101-13-060 – 1

Offenders Executed in the State of Washington Since May 14, 1981

Dates Life Offense to Lengths of Stay Name Difference Birth Offense DOC Execution Expectancy Execution Execution Death Westley Allan Dodd 07/03/61 09/04/89 07/26/90 01/05/93 840.000 40.049 29.372 491.253 461.881 Charles Rodman Campbell 10/21/54 04/14/82 12/17/82 05/27/94 840.000 145.413 137.298 502.127 364.830 Jeremy Vargas Sagastegui 11/01/70 11/19/95 02/13/96 10/13/98 840.000 34.793 31.967 536.591 504.624 James Homer Elledge 12/09/42 04/18/98 10/22/98 08/28/01 840.000 40.345 34.201 169.577 135.376 Cal Coburn Brown 04/16/58 05/24/91 02/01/94 09/10/10 840.000 231.589 199.261 410.431 211.170 Average 840.000 98.438 86.420 421.996 335.576

Note: All lengths are presented in months. Note: May 14, 1981, is the effective date of Washington State's death penalty (Chapter 138, Laws of 1981 and Chapter 10.95 RCW). Note: Average life expectancy of 840 months (70 years) is the figure employed by The Sentencing Project in calculating the total lifetime incarceration cost for a life sentence. (Mauer, Marc, Ryan S. King and Malcom C. Young. The Meaning of “Life”: Long Prison Sentences in Context. Washington D.C.: The Sentencing Project, 2004 (p. 25).

Impact on the Caseload Forecast Council. This bill would require modification of the Council’s adult and juvenile databases and data entry programs. These recurring costs are included in the agency’s budget.

Impact on prison beds. This bill:  Repeals the death penalty in favor of life without parole.

The bill will result in a maximum prison bed impact of 2 beds, first reached at 164 months after implementation. However, from that point it continues to increase monthly in miniscule amounts and will continue to do so beyond the end of the 20-year analysis period.

 Under current policy, there are 0.213 prison admissions per year that will result in execution, with an average length of stay at the Department of Corrections of 86.420 months. Under the proposed policy, there are 0.213 prison admissions per year that will no longer result in execution, with an average length of stay at the Department of Corrections of 421.996 months.

Eliminating the Death Penalty in Favor of Life Incarceration March 5, 2013 HB 1504 Caseload Forecast Council 3 #101-13-060 – 1

Average Monthly Population Prison Impacts HB 1504 - Eliminating the Death Penalty Caseload Forecast Council March 5, 2013

Fiscal Year FY14 FY15 FY16 FY17 FY18 FY19 FY20 FY21 FY22 FY23 Prison AMP (Total) 0 0 0 0 0 0 0 1 1 1

Fiscal Year FY24 FY25 FY26 FY27 FY28 FY29 FY30 FY31 FY32 FY33 Prison AMP (Total) 1 1 1 1 2 2 2 2 2 2

End of Year Prison Bed Impacts HB 1504 - Eliminating the Death Penalty Caseload Forecast Council March 5, 2013

Fiscal Year FY14 FY15 FY16 FY17 FY18 FY19 FY20 FY21 FY22 FY23 Prison Beds (Total) 0 0 0 0 0 0 1 1 1 1

Fiscal Year FY24 FY25 FY26 FY27 FY28 FY29 FY30 FY31 FY32 FY33 Prison Beds (Total) 1 1 1 2 2 2 2 2 2 2

Eliminating the Death Penalty in Favor of Life Incarceration March 5, 2013 HB 1504 Caseload Forecast Council 4 #101-13-060 – 1 Individual State Agency Fiscal Note

Bill Number: 1504 HB Title: Eliminating death penalty Agency: 310-Department of Corrections

Part I: Estimates

No Fiscal Impact

Estimated Cash Receipts to:

NONE

Estimated Expenditures from:

Non-zero but indeterminate cost. Please see discussion.

Estimated Capital Budget Impact:

NONE

Check applicable boxes and follow corresponding instructions:

If fiscal impact is greater than $50,000 per fiscal year in the current biennium or in subsequent biennia, complete entire fiscal note X form Parts I-V.

If fiscal impact is less than $50,000 per fiscal year in the current biennium or in subsequent biennia, complete this page only (Part I).

Capital budget impact, complete Part IV.

Requires new rule making, complete Part V.

Legislative Contact: Edie Adams Phone: 360-786-7180 Date: 02/28/2013

Agency Preparation: Margaret Andreas Phone: (360) 725-8262 Date: 03/05/2013

Agency Approval: Sarian Scott Phone: (360) 725-8270 Date: 03/05/2013

OFM Review: Kate Davis Phone: (360) 902-0570 Date: 03/05/2013

Request # 108-1 Form FN (Rev 1/00) 1 Bill # 1504 HB

FNS063 Individual State Agency Fiscal Note Part II: Narrative Explanation

Section 1 amends RCW 10.95.030, to require that any person convicted for the crime of aggravated first degree murder be sentenced to life imprisonment without possibility of release or parole.

Section 2 eliminates 19 statutes pertaining to the death penalty.

None.

Indeterminate expenditure impact.

The current capital punishment statute was enacted in 1981. During the period of Fiscal Year (FY) 1988 through FY2012, the death penalty was imposed twenty times. A high percentage of death sentences are overturned to life imprisonment. Since 1981, a total of five (5) executions have occurred. The most recent execution was in September 2010.

The Attorney General’s Office (AGO) defends federal habeas corpus petitions brought by offenders sentenced to death. The habeas corpus petitions and resulting litigation typically include challenges to the finding of guilt and the sentence of death. The AGO also defends the Department of Corrections (DOC) in civil rights and other litigation involving challenges to the manner of carrying out death sentences. The AGO has billed averaged approximately $200,000 per death penalty per case over the last 15 years with the dollars spread across multiple FYs. This amount includes habeas corpus proceedings and challenges to the execution of the sentence. The range of billings varies significantly by case, from approximately $100,000 to $400,000 per offender sentenced to death.

However, due to the small number of death penalty sentences imposed, the small number of executions that have occurred, and the variability of each case, it is not possible to precisely estimate the fiscal impact of this bill. We cannot predict the number of offenders that would be sentenced to death if capital punishment is not abolished, nor how many executions would occur each biennium. The cost of each death penalty case and each execution varies. If the death penalty is abolished, future savings to DOC will be partially offset by the cost to house these offenders for the remainder of their lives. DOC currently has eight (8) offenders with the sentence of death.

The Caseload Forecast Council (CFC) estimates the bill would result in a prison impact of two (2) beds, first reached in

Request # 108-1 Form FN (Rev 1/00) 2 Bill # 1504 HB

FNS063 Individual State Agency Fiscal Note in FY2021. From that point, prison impact would increase monthly in negligible amounts and would continue to do so beyond the end of the 20-year analysis period.

Assumptions: 1. Our ADP impact is based on the CFC forecast detail provided to DOC. 2. The CFC does not predict a bed impact until FY2021; therefore the increased cost to house offenders who otherwise may have been subject to the death penalty is not incorporated in this fiscal note. Savings from this bill will be slightly reduced by this cost in FY21 and beyond. 3. We assume this bill will eliminate billing from the AGO for non-case related legal advice concerning death penalties. This savings will average $30,000 to $50,000 per FY, and will be seen by decreased billings from the AGO. 4. We assume potential for cost savings associated with the enactment of this bill. The level of savings is indeterminate. 5. We assume that if this bill were enacted into law, the AGO would continue to receive and defend habeas corpus challenges by offenders sentenced to life without parole (LWOP), but who otherwise were, or would have been, subject to the death penalty. We also would likely need additional legal services to defend new challenges to the constitutionality of the automatic LWOP sentences for offenders previously subject to the death penalty. Part III: Expenditure Detail

Part IV: Capital Budget Impact

NONE None.

Part V: New Rule Making Required Identify provisions of the measure that require the agency to adopt new administrative rules or repeal/revise existing rules.

None Required.

Request # 108-1 Form FN (Rev 1/00) 3 Bill # 1504 HB

FNS063 Individual State Agency Fiscal Note LOCAL GOVERNMENT FISCAL NOTE Department of Community, Trade and Economic Development

Bill Number: 1504 HB Title: Eliminating death penalty

Part I: Jurisdiction-Location, type or status of political subdivision defines range of fiscal impacts.

Legislation Impacts: Cities:

X Counties: Decrease in expenditures for prosecutors, defense attorneys, and expert witnesses needed for death penalty cases

Special Districts:

Specific jurisdictions only:

Variance occurs due to: Part II: Estimates

No fiscal impacts.

Expenditures represent one-time costs:

Legislation provides local option:

Key variables cannot be estimated with certainty at this time:

Estimated revenue impacts to:

None

Estimated expenditure impacts to: Jurisdiction FY 2014 FY 2015 2013-15 2015-17 2017-19 County (1,950,000) (1,950,000) (3,900,000) (3,900,000) (3,900,000) TOTAL $ (1,950,000) (1,950,000) (3,900,000) (3,900,000) (3,900,000) GRAND TOTAL $ (11,700,000)

Part III: Preparation and Approval

Fiscal Note Analyst: Alice Zillah Phone: 360-725-5035 Date: 03/01/2013

Leg. Committee Contact: Edie Adams Phone: 360-786-7180 Date: 02/28/2013

Agency Approval: Jaime Kaszynski Phone: 360-725-2717 Date: 03/01/2013

OFM Review: Kate Davis Phone: (360) 902-0570 Date: 03/01/2013

Page 1 of 2 Bill Number: 1504 HB

FNS060 Local Government Fiscal Note Part IV: Analysis A. SUMMARY OF BILL Provide a clear, succinct description of the bill with an emphasis on how it impacts local government.

This bill would repeal the death penalty provisions of statute and establish life imprisonment without parole as the penalty for aggravated first-degree murder. B. SUMMARY OF EXPENDITURE IMPACTS Briefly describe and quantify the expenditure impacts of the legislation on local governments, identifying the expenditure provisions by section number, and when appropriate, the detail of expenditures. Delineate between city, county and special district impacts.

Elimination of the death penalty would result in savings of approximately $1,950,000 per year for counties due to reductions in prosecution, defense, and expert witness costs. This is a conservative estimate based on multiple studies that have been conducted in Washington and nationwide on the subject, and represents savings for a case with penalty of life without the possibility of parole as opposed to a death penalty case for three cases per year.

Washington's current death penalty statute was enacted in 1981, and only applies to aggravated first degree murder convictions. According to a 2006 report issued by the Washington State Bar Association, there have been 79 death penalty cases filed in the state over the last 25 years, or an average of three per year. That report and other statewide and national research supports the conclusion that it is significantly more expensive to try a death penalty case than one in which the penalty is life without the possibility of a parole. While many of the variables differ substantially from case to case, an average figure representing annual savings can be determined by adding up many of the costs.

John Roman, Ph.D., Senior Fellow at the Urban Institute and Executive Director of the District of Columbia Crime Policy Institute, wrote a 2009 report which examined 14 studies estimating the cost of capital punishment, 13 of which looked at state and county costs. Each study concludes that the presence of capital punishment results in additional costs. However, there is substantial variation in the cost estimates. Among the five studies that compare the cost of a death sentence with the cost of a capital-eligible case in which no death notice is filed, the additional cost per case is $650,000, with estimates ranging up to $1.7 million in additional costs.

According to the Washington State Bar Association, at the trial level, death penalty cases are estimated to generate roughly $470,000 in additional costs to the prosecution and defense over the cost of trying the same case as an aggravated murder without the death penalty and costs of $47,000 to $70,000 for court personnel. On direct appeal, the cost of appellate defense averages $100,000 more in death penalty cases, than in non-death penalty murder cases. Personal restraint petitions filed in death penalty cases on average cost an additional $137,000 in public defense costs. Virtually all defendants in capital cases qualify for indigent defense.

The costs of preparing for the death penalty trial of Michele Anderson and Joseph McEnroe provide a recent example. Though at least one of the defendants admitted guilt shortly after murdering six family members in 2007, it has cost King County close to $4.9 million to prepare the prosecution and defense arguments, the majority of which has been due to costs for indigent defense and expert witnesses. While this case represents higher than usual costs for death penalty cases, it provides an example of how these cases can be significantly more expensive than trials for life without possibility of parole.

Habeas corpus appeals to the US Supreme Court are not unusual, but these costs are borne by the Office of the Attorney General and therefore would not be county costs. C. SUMMARY OF REVENUE IMPACTS Briefly describe and quantify the revenue impacts of the legislation on local governments, identifying the revenue provisions by section number, and when appropriate, the detail of revenue sources. Delineate between city, county and special district impacts.

The legislation would have no revenue impact for local government.

SOURCES: Administrative Office of the Courts Local Government Fiscal Note for SB 6283, 2012 Reassessing the Cost of the Death Penalty Using Quasi-Experimental Methods: Evidence from Maryland, John Roman, Ph.D., 2009 Final Report of the Death Penalty Subcommittee of the Committee on Public Defense, Washington State Bar Association, 2006 "What costs more, the death penalty or life in prison?" KNDU, Sept. 21, 2011 "Trial-prep costs for Carnation killings hit $4.9 million," Seattle Times, June 1, 2012

Page 2 of 2 Bill Number: 1504 HB

FNS060 Local Government Fiscal Note