Fiscal Note Package 31143

Multiple Agency Fiscal Note Summary

Bill Number: 6283 SB Title: Death penalty elimination

Estimated Cash Receipts

Agency Name 2011-13 2013-15 2015-17 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 2011-13 2013-15 2015-17 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 Fiscal note not available 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 ** Non-zero but indeterminate cost. Please see discussion. Local Gov. Total

Estimated Capital Budget Impact

NONE

Prepared by: Adam Aaseby, OFM Phone: Date Published:

360-902-0539 Final 1/27/2012

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

** See local government fiscal note FNPID 31143 : FNS029 Multi Agency rollup Judicial Impact Fiscal Note

Bill Number: 6283 SB Title: Death penalty elimination Agency: 055-Admin Office of the Courts

Part I: Estimates

No Fiscal Impact

Estimated Cash Receipts to:

Account FY 2012 FY 2013 2011-13 2013-15 2015-17 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.

Contact Phone: Date: 01/23/2012

Agency Preparation: Gil Austin Phone: 360-705-5271 Date: 01/24/2012

Agency Approval: Dirk Marler Phone: 360-705-5211 Date: 01/24/2012

OFM Review: David Dula Phone: (360) 902-0543 Date: 01/25/2012

Request # -1 Form FN (Rev 1/00) 1 Bill # 6283 SB

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

Section 1 Amends RCW 10.95.030 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 Repeals provisions of RCW 10.95 relating to court proceedings concerning a death sentence.

II. B - Cash Receipts Impact

II. C - Expenditures

There is no data available to estimate the fiscal impact of this bill. Since these 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. The cost data provided below is to help inform readers on the typical costs involved. However, it is assumed the fiscal impact would represent a cost savings for the Supreme Court from not reviewing death penalty cases and Superior Courts savings from not trying death penalty cases. It is possible that the Courts of Appeal could see a slight increase in appeals.

Superior Courts would achieve savings from trying aggravated murder in the first degree cases where the death penalty was not the sentence upon a 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. 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.

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 that not all Superior Courts incur the increase in costs for capital cases to the same extent. Larger counties tend to have separate departments of assigned counsel that are not part of the court operation, who would incur the costs of the additional attorney costs and perhaps the costs of the mitigation investigation. This may not be the case in smaller counties where the Superior Court budget includes the cost of defense attorneys, mitigation investigations and other expert costs.

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 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

Request # -1 Form FN (Rev 1/00) 2 Bill # 6283 SB

FNS061 Judicial Impact Fiscal Note 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.

According to information provided by the Sentencing Guidelines Commission, in FY 10 there were 9 Aggravated Murder sentences, with 8 resulting in a Life Without Parole sentence and 1 resulting in a Death sentence, while in 2008 there were 8 convictions for aggravated murder in the first degree. This compares to 1,441 criminal appeals filed in all three divisions of the Courts of Appeal in 2009. Part III: Expenditure Detail

Part IV: Capital Budget Impact

Request # -1 Form FN (Rev 1/00) 3 Bill # 6283 SB

FNS061 Judicial Impact Fiscal Note Individual State Agency Fiscal Note

Bill Number: 6283 SB Title: Death penalty elimination 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

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: Phone: Date: 01/23/2012

Agency Preparation: Cam Comfort Phone: (360) 664-9429 Date: 01/25/2012

Agency Approval: Sarian Scott Phone: (360) 586-2104 Date: 01/25/2012

OFM Review: Cheri Keller Phone: 360-902-0563 Date: 01/25/2012

Request # 12-074-1 Form FN (Rev 1/00) 1 Bill # 6283 SB

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 remove subsection (2), which authorizes a sentence of death.

Section 2 is a new section that repeals various statutes in RCW 10.95 related to the death penalty.

This bill is assumed effective July 1, 2012.

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.

Indeterminate cash receipts.

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

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.

Indeterminate expenditure impact.

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 State and 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. 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 # 12-074-1 Form FN (Rev 1/00) 2 Bill # 6283 SB

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 # 12-074-1 Form FN (Rev 1/00) 3 Bill # 6283 SB

FNS063 Individual State Agency Fiscal Note Individual State Agency Fiscal Note

Bill Number: 6283 SB Title: Death penalty elimination 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: Phone: Date: 01/23/2012

Agency Preparation: Ed Vukich Phone: 360-586-0304 Date: 01/25/2012

Agency Approval: John Steiger Phone: 360-586-0303 Date: 01/25/2012

OFM Review: Cherie Berthon Phone: 360-902-0659 Date: 01/25/2012

Request # 12-27-1 Form FN (Rev 1/00) 1 Bill # 6283 SB

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 # 12-27-1 Form FN (Rev 1/00) 2 Bill # 6283 SB

FNS063 Individual State Agency Fiscal Note SB 6283 REDUCING CRIMINAL JUSTICE EXPENSES BY ELIMINATING THE DEATH PENALTY IN FAVOR OF LIFE INCARCERATION 101 – Caseload Forecast Council January 25, 2012

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.

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

Ed Vukich, Senior Caseload Forecaster (360) 586-0304 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, 2011. 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 269.168 months (22.431 years), resulting in one execution every 53.834 months (4.486 years). This means that there are 0.019 executions per month (0.223 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 January 25, 2012 SB 6283 Caseload Forecast Council 2 #101-12-27 – 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 3 beds, first reached at 234 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 0.223 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 0.223 prison admissions per year that will 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 January 25, 2012 SB 6283 Caseload Forecast Council 3 #101-12-27 – 1

Average Monthly Population Prison Impacts SB 6283 - Eliminating the Death Penalty Caseload Forecast Council January 25, 2012

Fiscal Year FY13 FY14 FY15 FY16 FY17 FY18 FY19 FY20 FY21 FY22 Prison AMP (Total) 0 0 0 0 0 0 1 1 1 1

Fiscal Year FY23 FY24 FY25 FY26 FY27 FY28 FY29 FY30 FY31 FY32 Prison AMP (Total) 1 1 1 2 2 2 2 2 2 3

End of Year Prison Bed Impacts SB 6283 - Eliminating the Death Penalty Caseload Forecast Council January 25, 2012

Fiscal Year FY13 FY14 FY15 FY16 FY17 FY18 FY19 FY20 FY21 FY22 Prison Beds (Total) 0 0 0 0 0 0 1 1 1 1

Fiscal Year FY23 FY24 FY25 FY26 FY27 FY28 FY29 FY30 FY31 FY32 Prison Beds (Total) 1 1 1 2 2 2 2 2 2 3

Eliminating the Death Penalty in Favor of Life Incarceration January 25, 2012 SB 6283 Caseload Forecast Council 4 #101-12-27 – 1

Current Policy - Prison Bed Estimate SB 6283 - Eliminating the Death Penalty Caseload Forecast Council January 25, 2012

Month Adm. Rel. Pop. Month Adm. Rel. Pop. Month Adm. Rel. Pop. Month Adm. Rel. Pop. 1 0 0 0 61 0 0 1 121 0 0 1 181 0 0 2 2 0 0 0 62 0 0 1 122 0 0 1 182 0 0 2 3 0 0 0 63 0 0 1 123 0 0 1 183 0 0 2 4 0 0 0 64 0 0 1 124 0 0 1 184 0 0 2 5 0 0 0 65 0 0 1 125 0 0 1 185 0 0 2 6 0 0 0 66 0 0 1 126 0 0 1 186 0 0 2 7 0 0 0 67 0 0 1 127 0 0 1 187 0 0 2 8 0 0 0 68 0 0 1 128 0 0 1 188 0 0 2 9 0 0 0 69 0 0 1 129 0 0 1 189 0 0 2 10 0 0 0 70 0 0 1 130 0 0 1 190 0 0 2 11 0 0 0 71 0 0 1 131 0 0 1 191 0 0 2 12 0 0 0 72 0 0 1 132 0 0 1 192 0 0 2 13 0 0 0 73 0 0 1 133 0 0 1 193 0 0 2 14 0 0 0 74 0 0 1 134 0 0 1 194 0 0 2 15 0 0 0 75 0 0 1 135 0 0 1 195 0 0 2 16 0 0 0 76 0 0 1 136 0 0 1 196 0 0 2 17 0 0 0 77 0 0 1 137 0 0 1 197 0 0 2 18 0 0 0 78 0 0 1 138 0 0 1 198 0 0 2 19 0 0 0 79 0 0 1 139 0 0 1 199 0 0 2 20 0 0 0 80 0 0 1 140 0 0 1 200 0 0 2 21 0 0 0 81 0 0 1 141 0 0 1 201 0 0 2 22 0 0 0 82 0 0 1 142 0 0 1 202 0 0 2 23 0 0 0 83 0 0 1 143 0 0 1 203 0 0 2 24 0 0 0 84 0 0 1 144 0 0 1 204 0 0 2 25 0 0 0 85 0 0 1 145 0 0 1 205 0 0 2 26 0 0 0 86 0 0 1 146 0 0 1 206 0 0 2 27 0 0 1 87 0 0 1 147 0 0 1 207 0 0 2 28 0 0 1 88 0 0 1 148 0 0 1 208 0 0 2 29 0 0 1 89 0 0 1 149 0 0 1 209 0 0 2 30 0 0 1 90 0 0 1 150 0 0 1 210 0 0 2 31 0 0 1 91 0 0 1 151 0 0 1 211 0 0 2 32 0 0 1 92 0 0 1 152 0 0 1 212 0 0 2 33 0 0 1 93 0 0 1 153 0 0 1 213 0 0 2 34 0 0 1 94 0 0 1 154 0 0 1 214 0 0 2 35 0 0 1 95 0 0 1 155 0 0 1 215 0 0 2 36 0 0 1 96 0 0 1 156 0 0 1 216 0 0 2 37 0 0 1 97 0 0 1 157 0 0 1 217 0 0 2 38 0 0 1 98 0 0 1 158 0 0 1 218 0 0 2 39 0 0 1 99 0 0 1 159 0 0 1 219 0 0 2 40 0 0 1 100 0 0 1 160 0 0 1 220 0 0 2 41 0 0 1 101 0 0 1 161 0 0 1 221 0 0 2 42 0 0 1 102 0 0 1 162 0 0 1 222 0 0 2 43 0 0 1 103 0 0 1 163 0 0 1 223 0 0 2 44 0 0 1 104 0 0 1 164 0 0 1 224 0 0 2 45 0 0 1 105 0 0 1 165 0 0 1 225 0 0 2 46 0 0 1 106 0 0 1 166 0 0 1 226 0 0 2 47 0 0 1 107 0 0 1 167 0 0 1 227 0 0 2 48 0 0 1 108 0 0 1 168 0 0 1 228 0 0 2 49 0 0 1 109 0 0 1 169 0 0 1 229 0 0 2 50 0 0 1 110 0 0 1 170 0 0 1 230 0 0 2 51 0 0 1 111 0 0 1 171 0 0 2 231 0 0 2 52 0 0 1 112 0 0 1 172 0 0 2 232 0 0 2 53 0 0 1 113 0 0 1 173 0 0 2 233 0 0 2 54 0 0 1 114 0 0 1 174 0 0 2 234 0 0 2 55 0 0 1 115 0 0 1 175 0 0 2 235 0 0 2 56 0 0 1 116 0 0 1 176 0 0 2 236 0 0 2 57 0 0 1 117 0 0 1 177 0 0 2 237 0 0 2 58 0 0 1 118 0 0 1 178 0 0 2 238 0 0 2 59 0 0 1 119 0 0 1 179 0 0 2 239 0 0 2 60 0 0 1 120 0 0 1 180 0 0 2 240 0 0 2

Eliminating the Death Penalty in Favor of Life Incarceration January 25, 2012 SB 6283 Caseload Forecast Council 5 #101-12-27 – 1

Proposed Policy - Prison Bed Estimate SB 6283 - Eliminating the Death Penalty Caseload Forecast Council January 25, 2012

Month Adm. Rel. Pop. Month Adm. Rel. Pop. Month Adm. Rel. Pop. Month Adm. Rel. Pop. 1 0 0 0 61 0 0 1 121 0 0 2 181 0 0 3 2 0 0 0 62 0 0 1 122 0 0 2 182 0 0 3 3 0 0 0 63 0 0 1 123 0 0 2 183 0 0 3 4 0 0 0 64 0 0 1 124 0 0 2 184 0 0 3 5 0 0 0 65 0 0 1 125 0 0 2 185 0 0 3 6 0 0 0 66 0 0 1 126 0 0 2 186 0 0 3 7 0 0 0 67 0 0 1 127 0 0 2 187 0 0 3 8 0 0 0 68 0 0 1 128 0 0 2 188 0 0 3 9 0 0 0 69 0 0 1 129 0 0 2 189 0 0 3 10 0 0 0 70 0 0 1 130 0 0 2 190 0 0 3 11 0 0 0 71 0 0 1 131 0 0 2 191 0 0 3 12 0 0 0 72 0 0 1 132 0 0 2 192 0 0 3 13 0 0 0 73 0 0 1 133 0 0 2 193 0 0 3 14 0 0 0 74 0 0 1 134 0 0 2 194 0 0 4 15 0 0 0 75 0 0 1 135 0 0 3 195 0 0 4 16 0 0 0 76 0 0 1 136 0 0 3 196 0 0 4 17 0 0 0 77 0 0 1 137 0 0 3 197 0 0 4 18 0 0 0 78 0 0 1 138 0 0 3 198 0 0 4 19 0 0 0 79 0 0 1 139 0 0 3 199 0 0 4 20 0 0 0 80 0 0 1 140 0 0 3 200 0 0 4 21 0 0 0 81 0 0 2 141 0 0 3 201 0 0 4 22 0 0 0 82 0 0 2 142 0 0 3 202 0 0 4 23 0 0 0 83 0 0 2 143 0 0 3 203 0 0 4 24 0 0 0 84 0 0 2 144 0 0 3 204 0 0 4 25 0 0 0 85 0 0 2 145 0 0 3 205 0 0 4 26 0 0 0 86 0 0 2 146 0 0 3 206 0 0 4 27 0 0 1 87 0 0 2 147 0 0 3 207 0 0 4 28 0 0 1 88 0 0 2 148 0 0 3 208 0 0 4 29 0 0 1 89 0 0 2 149 0 0 3 209 0 0 4 30 0 0 1 90 0 0 2 150 0 0 3 210 0 0 4 31 0 0 1 91 0 0 2 151 0 0 3 211 0 0 4 32 0 0 1 92 0 0 2 152 0 0 3 212 0 0 4 33 0 0 1 93 0 0 2 153 0 0 3 213 0 0 4 34 0 0 1 94 0 0 2 154 0 0 3 214 0 0 4 35 0 0 1 95 0 0 2 155 0 0 3 215 0 0 4 36 0 0 1 96 0 0 2 156 0 0 3 216 0 0 4 37 0 0 1 97 0 0 2 157 0 0 3 217 0 0 4 38 0 0 1 98 0 0 2 158 0 0 3 218 0 0 4 39 0 0 1 99 0 0 2 159 0 0 3 219 0 0 4 40 0 0 1 100 0 0 2 160 0 0 3 220 0 0 4 41 0 0 1 101 0 0 2 161 0 0 3 221 0 0 4 42 0 0 1 102 0 0 2 162 0 0 3 222 0 0 4 43 0 0 1 103 0 0 2 163 0 0 3 223 0 0 4 44 0 0 1 104 0 0 2 164 0 0 3 224 0 0 4 45 0 0 1 105 0 0 2 165 0 0 3 225 0 0 4 46 0 0 1 106 0 0 2 166 0 0 3 226 0 0 4 47 0 0 1 107 0 0 2 167 0 0 3 227 0 0 4 48 0 0 1 108 0 0 2 168 0 0 3 228 0 0 4 49 0 0 1 109 0 0 2 169 0 0 3 229 0 0 4 50 0 0 1 110 0 0 2 170 0 0 3 230 0 0 4 51 0 0 1 111 0 0 2 171 0 0 3 231 0 0 4 52 0 0 1 112 0 0 2 172 0 0 3 232 0 0 4 53 0 0 1 113 0 0 2 173 0 0 3 233 0 0 4 54 0 0 1 114 0 0 2 174 0 0 3 234 0 0 4 55 0 0 1 115 0 0 2 175 0 0 3 235 0 0 4 56 0 0 1 116 0 0 2 176 0 0 3 236 0 0 4 57 0 0 1 117 0 0 2 177 0 0 3 237 0 0 4 58 0 0 1 118 0 0 2 178 0 0 3 238 0 0 4 59 0 0 1 119 0 0 2 179 0 0 3 239 0 0 4 60 0 0 1 120 0 0 2 180 0 0 3 240 0 0 4

Eliminating the Death Penalty in Favor of Life Incarceration January 25, 2012 SB 6283 Caseload Forecast Council 6 #101-12-27 – 1

Prison Bed Impact SB 6283 - Eliminating the Death Penalty Caseload Forecast Council January 25, 2012

Month Pop. Month Pop. Month Pop. Month Pop. Month Pop. 1 0 49 0 97 1 145 1 193 2 2 0 50 0 98 1 146 1 194 2 3 0 51 0 99 1 147 1 195 2 4 0 52 0 100 1 148 1 196 2 5 0 53 0 101 1 149 1 197 2 6 0 54 0 102 1 150 1 198 2 7 0 55 0 103 1 151 1 199 2 8 0 56 0 104 1 152 1 200 2 9 0 57 0 105 1 153 1 201 2 10 0 58 0 106 1 154 1 202 2 11 0 59 0 107 1 155 1 203 2 12 0 60 0 108 1 156 1 204 2 13 0 61 0 109 1 157 1 205 2 14 0 62 0 110 1 158 1 206 2 15 0 63 0 111 1 159 1 207 2 16 0 64 0 112 1 160 2 208 2 17 0 65 0 113 1 161 2 209 2 18 0 66 0 114 1 162 2 210 2 19 0 67 0 115 1 163 2 211 2 20 0 68 0 116 1 164 2 212 2 21 0 69 0 117 1 165 2 213 2 22 0 70 0 118 1 166 2 214 2 23 0 71 0 119 1 167 2 215 2 24 0 72 0 120 1 168 2 216 2 25 0 73 0 121 1 169 2 217 2 26 0 74 0 122 1 170 2 218 2 27 0 75 0 123 1 171 2 219 2 28 0 76 0 124 1 172 2 220 2 29 0 77 1 125 1 173 2 221 2 30 0 78 1 126 1 174 2 222 2 31 0 79 1 127 1 175 2 223 2 32 0 80 1 128 1 176 2 224 2 33 0 81 1 129 1 177 2 225 2 34 0 82 1 130 1 178 2 226 2 35 0 83 1 131 1 179 2 227 2 36 0 84 1 132 1 180 2 228 2 37 0 85 1 133 1 181 2 229 2 38 0 86 1 134 1 182 2 230 2 39 0 87 1 135 1 183 2 231 2 40 0 88 1 136 1 184 2 232 2 41 0 89 1 137 1 185 2 233 2 42 0 90 1 138 1 186 2 234 3 43 0 91 1 139 1 187 2 235 3 44 0 92 1 140 1 188 2 236 3 45 0 93 1 141 1 189 2 237 3 46 0 94 1 142 1 190 2 238 3 47 0 95 1 143 1 191 2 239 3 48 0 96 1 144 1 192 2 240 3

Eliminating the Death Penalty in Favor of Life Incarceration January 25, 2012 SB 6283 Caseload Forecast Council 7 #101-12-27 – 1 Individual State Agency Fiscal Note

Bill Number: 6283 SB Title: Death penalty elimination 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

form Parts I-V.

X 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: Phone: Date: 01/23/2012

Agency Preparation: Margaret Andreas Phone: (360) 725-8262 Date: 01/26/2012

Agency Approval: Alan Haskins Phone: 360-725-8264 Date: 01/26/2012

OFM Review: Adam Aaseby Phone: 360-902-0539 Date: 01/27/2012

Request # 045-1 Form FN (Rev 1/00) 1 Bill # 6283 SB

FNS063 Individual State Agency Fiscal Note Part II: Narrative Explanation

This bill reduces criminal justice expenses by eliminating the death penalty in favor of life incarceration.

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

Section 2 eliminates the death penalty provisions by repealing RCW 10.95.040, 10.95.050, 10.95.060, 10.95.070, 10.95.080, 10.95.090, 10.95.100, 10.95.110, 10.95.120, 10.95.130, 10.95.140, 10.95.150, 10.95.160, 10.95.170, 10.95.180, 10.95.185, 10.95.190, 10.95.200 and 10.95.900.

If passed, this bill will be effective ninety days after adjournment of session.

None.

Fiscal impact is indeterminate but assumed to be a savings of greater than $50,000 per year.

The current capital punishment statute was enacted in 1981. During the period of Fiscal Year 1988 through Fiscal Year 2010, the death penalty was imposed twenty times. A high percentage of death sentences are overturned to life imprisonment. Since 1981, a total of five executions have occurred, the most recent on September 10, 2010.

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 accurately project the savings impact of this bill. We cannot predict the number of offenders that would be sentenced to death if capital punishment is not abolished, or 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 the Department will be partially offset by the cost to house these offenders for the remainder of their lives. The Department currently has eight offenders with the sentence of death. The annual cost per offender at the Washington State Penitentiary – where offenders sentenced to death and a large percentage of offenders sentenced to life imprisonment are housed – is $43,054.

The Caseload Forecast Council projected bed impact over the next twenty years with a maximum increase of three beds, reached nineteen years after bill implementation.

Request # 045-1 Form FN (Rev 1/00) 2 Bill # 6283 SB

FNS063 Individual State Agency Fiscal Note The Department incurred approximately $100,000 in costs directly associated with the most recent execution. Those costs included overtime, additional salaries and benefits, travel, and goods and services. The offender was previously scheduled for execution March 13, 2009 and received a stay just prior to the execution date. Cost incurred at that time totaled approximately $75,000. Additionally the Department pays Attorney General's Office services associated with death penalty cases. The State Assistant Attorney General is responsible for second level challenges; costs can range from $100,000 to $400,000 per case. On average, the Attorney General's Office has billed approximately $200,000 per death penalty case over the last 15 years. These costs often span years, in some cases more than a decade. Costs would not be entirely eliminated. Even without the death penalty, there would be habeas corpus challenges to the life sentences the offenders would receive instead of the death penalty.

The Department requested supplemental budget funding to cover the cost of the Bryon Scherf murder trial. Costs include incarceration, public defender, prosecutor and court expenses billed by Snohomish County. If this were not a death-penalty case, it is anticpated costs would be lower. 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 # 045-1 Form FN (Rev 1/00) 3 Bill # 6283 SB

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

Bill Number: 6283 SB Title: Death penalty elimination

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

Legislation Impacts: Cities:

X Counties: Reduction in motions and hearings related to death penalty.

Special Districts:

Specific jurisdictions only:

Variance occurs due to: Part II: Estimates

No fiscal impacts.

Expenditures represent one-time costs:

Legislation provides local option:

X Key variables cannot be estimated with certainty at this time: Number of offenders charged with aggravated first-degree murder that might have been subject to the death penalty.

Estimated revenue impacts to:

None

Estimated expenditure impacts to:

Indeterminate Impact

Part III: Preparation and Approval

Fiscal Note Analyst: David Elliott Phone: (360) 725 5033 Date: 01/24/2012

Leg. Committee Contact: Phone: Date: 01/23/2012

Agency Approval: Steve Salmi Phone: (360) 725 5034 Date: 01/24/2012

OFM Review: Kate Davis Phone: (360) 902-0570 Date: 01/24/2012

Page 1 of 3 Bill Number: 6283 SB

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.

The fiscal impact of this bill is indeterminate because the number of offenders subject to it as well as the number of hearings and appeals that may not be held cannot be predicted. Each case has individual characteristics, including the nature of the crime and the defendant’s history. Every detail in a death penalty case is subject to review.

Costs for counties include both prosecution and defense. Court costs are addressed by the fiscal note from the Administrative Office of the Courts (AOC). There are limited data available to predict differential expenses for aggravated murder cases tried with the death penalty instead of life imprisonment. Counties pay for prosecuting and defense costs through the initial trial, the automatic appeal to the State Supreme Court, any appeal to the US Supreme Court, and any personal restraint appeals (including state Appellate Court, state Supreme Court, and US Supreme Court). Habeas Corpus motions in federal court are state expenses. There are also Washington State Court rules specific to death penalty cases that specify that at least one of the defense attorneys be "capital certified," that there be two attorneys assigned to the case, that the attorneys are working only the capital case, and have appellate experience.

An aggravated murder case becomes a death penalty case after the prosecuting attorney files a Notice of Special Sentencing Proceeding prior to trial. In order to make a decision about filing the notice, the prosecutor receives a "mitigation packet" prepared by defense attorneys using investigators and mitigation experts. Mental health evaluation and other expert examinations are included in the mitigation packet. The Bar Association published a report on the death penalty in December of 2006 that found the defense cost for preparing a mitigation packet averaging $30,000. This expense is not required for a non-death penalty case, but is required as a part of the death penalty decision-making process. The court rules for counsel apply throughout a death penalty case, but cease to apply once a decision is made not to seek the penalty (Final Report of the Death Penalty Subcommittee of the Committee on Public Defense, Washington State Bar Association, December 2006).

Possible increased expenditures for death penalty cases result from more difficulty seating a jury; additional hearings, including the two-phase nature of death penalty proceedings (trial and penalty phases); and the likelihood that defense efforts for death penalty cases will include extra hearings to determine each detail of the defense. Those additional hearings require paying experts to examine the defendant, paying for the expert to appear at additional hearings, and paying for any defense experts to appear, and then both prosecution and defense experts to appear at penalty phase sentencing proceedings. This bill will change all death penalty cases into life imprisonment cases.

There are differences in the number of appeals for death penalty cases, as opposed to aggravated murder life cases. Not every life sentence is appealed, while direct appeals to the State Supreme Court are automatic for death penalty cases. Conversely, life sentence appeals go first to the Court of Appeals and then the State Supreme Court (death penalty cases skip the Court of Appeals going directly to the upper court). The Office of the Attorney General handles all habeas corpus cases made to the US Supreme Court, and they find a nearly 100 percent rate of appeal for death sentences at that level. The federal habeas corpus petition is usually the last step in the appeal process.

PROSECUTION EXPECTATIONS: According to the Local Government Fiscal Note 2010 Prosecution Cost Survey, it costs $23,284 on average to try a homicide case (including existing local appeals). Aggravated murder cases that lead to life imprisonment and death penalty cases cost significantly more. All aggravated murder and death penalty cases are expensive. However, the costs to prepare and try death penalty and aggravated murder life imprisonment cases are similar because the same standards of proof and hearings are involved. The major differences between the two types of cases are lengthier trials (jury selection for death penalty cases can be time consuming) and appeals (Pierce County Prosecutor). The Washington Association of Prosecuting Attorneys (WAPA) points out that the cost of any case is specific to each. Cost factors include quality of evidence and availability of witnesses. Some aggravated murder cases cost significantly more to prosecute than death penalty cases.

DEFENSE EXPECTATIONS: Virtually all death penalty cases qualify for public defense. The Washington Defender's Association (WDA) estimates the cost of a

Page 2 of 3 Bill Number: 6283 SB

FNS060 Local Government Fiscal Note complete death penalty defense at $360,000 to $500,000. The Washington State Court Rules set requirements for capital cases including the use of “capital-qualified” attorneys. These attorneys have a minimum salary of $125 an hour. The rules also require two attorneys and a mitigation investigator per case to both try the case and prepare the mitigation packet for the decision on filing the special notice and the penalty phase. WDA estimates that the cost of a capital defense is at least twice that of a life imprisonment case. The Pierce County Office of Assigned Counsel has handled many cases of both types and provided a cost differential for defense. The estimate for life cases usually ranges from $35-$50,000 (with a high of $100,000), while the death penalty estimate usually ranges from $300-$500,000 (with a high of $600,000). 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.

None

SOURCES: Administrative Office of the Courts (AOC) fiscal note Caseload Forecast Council (CFC) fiscal note Washington Defenders Association Washington Association of Prosecuting Attorneys Washington State Office of Public Defense Washington State Bar Association Attorney General Criminal Division Office of the Pierce County Prosecuting Attorney Pierce County Office of Assigned Counsel

Page 3 of 3 Bill Number: 6283 SB

FNS060 Local Government Fiscal Note