Fiscal Note Package 39877

Multiple Agency Fiscal Note Summary

Bill Number: 1739 HB Title: Death penalty, eliminating Estimated Cash Receipts

Agency Name 2015-17 2017-19 2019-21 GF- State Total GF- State Total GF- State Total Office of Attorney General Non-zero but indeterminate cost and/or savings. Please see discussion.

Total $ 0 0 0 0 0 0

Estimated Expenditures

Agency Name 2015-17 2017-19 2019-21 FTEs GF-State Total FTEs GF-State Total FTEs GF-State Total Administrative Office of Non-zero but indeterminate cost and/or savings. Please see discussion. the Courts Office of Public Defense Non-zero but indeterminate cost and/or savings. Please see discussion. 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 and/or savings. Please see discussion. Loc School dist-SPI 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: Trisha Newport, OFM Phone: Date Published: (360) 902-0417 Final 2/19/2015

* See Office of the Administrator for the Courts judicial fiscal note ** See local government fiscal note FNPID: 39877 FNS029 Multi Agency rollup Judicial Impact Fiscal Note

Bill Number: 1739 HB Title: Death penalty, eliminating Agency: 055-Admin Office of the Courts

Part I: Estimates No Fiscal Impact

Estimated Cash Receipts to: Account FY 2016 FY 2017 2015-17 2017-19 2019-21 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 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.

Legislative Contact Edie Adams Phone: 360-786-7180 Date: 02/13/2015 Agency Preparation: Kitty Hjelm Phone: 360-704-5528 Date: 02/17/2015 Agency Approval: Ramsey Radwan Phone: 360-357-2406 Date: 02/17/2015 OFM Review: Cheri Keller Phone: 360-902-0563 Date: 02/17/2015

Request # 1739 HB-1 Form FN (Rev 1/00) 1 Bill # 1739 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 eliminate the death penalty in favor of life incarceration.

Section 1 would amend RCW 10.95.030 to: - require that a life sentence without possibility of parole must include a restitution order; - require that an offender sentenced to life without possibility of parole be required to work throughout the duration of his /her sentence to satisfy the restitution order; - require the death peanlty be removed as a possible sentence for aggravated first degree murder .

Section 2 would repeal a number of sections of RCW 10.95 relating to court proceedings concerning a death sentence. II. B - Cash Receipts Impact None

II. C - Expenditures This bill would require the death penalty be removed as a possible sentence for aggravated first degree murder . Eliminating the death penalty would result in cost savings for the superior courts for no longer trying death penalty cases and the supreme court for no longer hearing death penalty case reviews and appeals.

According to a January 2015 Seattle University report on the "Analysis of the Economic Costs of Seeking the Death Penalty in Washington State", the average court, police/sheriff and miscellaneous costs associated with an aggravated first-degree murder case where the death penalty was sought was $528,779 compared to $65,075 when the death penalty was not sought.

However, because these death penalty cases are before the supreme and superior courts over a period of years, each features different details and aggravating factors, and the cases are before different justices and judges there is not sufficient data to estimate the cost savings.

The following are examples of the types of costs that would be saved:

- Compared to other felony cases in superior court, more time is spent in death penalty cases on complex pre-trial motions, legal challenges and jury selection. A death penalty case lasts between 20 to 30 days longer than a typical felony case .

- There would be savings in jury selection. Jury selection for death penalty trials is more complex with many more jurors summoned than in a typical jury trial. 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. Jury selection can take as long as 30 days for a death sentence trial compared to other cases where jury selection takes a day or two. 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 supreme court would achieve savings by not hearing appeals of death penalty sentences . Statute provides for automatic review and appeal to the supreme court of all death penalty sentences. It requires 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 had 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 death penalty 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 Request # 1739 HB-1 Form FN (Rev 1/00) 2 Bill # 1739 HB FNS061 Judicial Impact Fiscal Note transcribed.

- The amount of additional time that a justice and staff assigned a death penalty case spends 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 their time.

If this bill passed, judges and staff would redirect their time not spent on death penalty cases to other cases before the courts and to reducing caseload backlogs. Part III: Expenditure Detail

Part IV: Capital Budget Impact

Request # 1739 HB-1 Form FN (Rev 1/00) 3 Bill # 1739 HB FNS061 Judicial Impact Fiscal Note Individual State Agency Fiscal Note

Bill Number: 1739 HB Title: Death penalty, eliminating 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: 02/13/2015 Agency Preparation: Sophia Byrd McSherry Phone: 360-586-3164 Date: 02/17/2015 Agency Approval: Joanne Moore Phone: 360 956-2107 Date: 02/17/2015 OFM Review: Cheri Keller Phone: 360-902-0563 Date: 02/17/2015

FNS063 Individual State Agency Fiscal Note Request # 1739-1 Form FN (Rev 1/00) 1 Bill # 1739 HB 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.

HB 1739 would remove capital punishment from Washington statutes.

Section 1 would amend RCW 10.95.030 to remove references to a special death penalty proceeding and would establish life imprisonment without parole as the penalty for aggravated first-degree murder. Section 2 would repeal numerous sections of Chapter 10.95 RCW relating to court proceedings associated with 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.

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. HB 1739 would have an indeterminate fiscal impact on the Washington State Office of Public Defense (OPD), though likely would result in savings greater than $50,000 per year.

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 has the right to counsel for collateral review via personal restraint petition (PRP) to the Washington Supreme Court. RAP 16.3(c). The Court will appoint two qualified attorneys for each case at each level of review. RCW 10.73.150; SPRC 2; RAP 16.25.

OPD contracts with the Court-appointed appellate counsel for legal fees in each death penalty appeal. OPD also pays for related defense costs, including transcription of trial proceedings, court files, and clerks' costs under Title 15 RAP. Each death penalty appeal contains a voluminous record and takes multiple years to complete. Since 2005, attorney contract fees and related defense costs borne by OPD for an individual appellant's death penalty appeals have ranged from approximately $300,000 to more than $400,000 over a multi-year period. Currently four appellants have appeals or PRPs as of right in the Washington Supreme Court.

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 $2,300 to $25,000. The Washington Supreme Court is currently considering two requests for interlocutory review in death penalty cases; trial has commenced in one of those cases.

In addition, OPD also pays for successive PRPs filed by death penalty appellants where the Supreme Court exercises its discretion to appoint counsel, which the Court frequently does. Costs for such discretionary PRPs range from $2,300 to $22,000, depending on the issues raised in the petition.

Although indigent defense costs at the trial level are paid by the county, if any of these cases results in a death

FNS063 Individual State Agency Fiscal Note Request # 1739-1 Form FN (Rev 1/00) 2 Bill # 1739 HB 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 was affirmed on appeal. Three cases at the trial level are currently being tried as death penalty cases.

Five inmates on Washington's death row are in various stages of post-conviction review in the federal courts. Depending on the outcome in federal court, their cases could be returned for additional state proceedings, though it is difficult to estimate when that might occur.

The state death penalty appellate process for each appellant takes seven years or more. Historically the average 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 • 2013-2014: $230,000 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 nine 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 2013.

OPD anticipates that at least three 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 three new death penalty appeals, followed by up to three PRPs as of right.

Potential Savings associated with HB 1739:

HB 1739 would have an indeterminate fiscal impact on the Washington State Office of Public Defense (OPD), though likely would result in savings greater than $50,000 per year.

If HB 1739 is adopted, OPD would expect to save about 90 percent of its present death penalty expenditures. Defense representation for typical aggravated murder appeals not involving the death penalty costs between $4,000 and $20,000 per appeal, 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 to $1.6 million over a multi-year period. 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.

FNS063 Individual State Agency Fiscal Note Request # 1739-1 Form FN (Rev 1/00) 3 Bill # 1739 HB Individual State Agency Fiscal Note

Bill Number: 1739 HB Title: Death penalty, eliminating 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

Capital budget impact, complete Part IV.

Requires new rule making, complete Part V.

Legislative Contact: Edie Adams Phone: 360-786-7180 Date: 02/13/2015 Agency Preparation: Pamela Anderson Phone: 360 664-4963 Date: 02/18/2015 Agency Approval: Brendan VanderVelde Phone: 360 586-2104 Date: 02/18/2015 OFM Review: Chris Stanley Phone: (360) 902-9810 Date: 02/18/2015

FNS063 Individual State Agency Fiscal Note Request # 15-173-1 Form FN (Rev 1/00) 1 Bill # 1739 HB 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.

This bill eliminates the death penalty for aggravated first degree murder and imposes a requirement that the convicted offender work throughout the sentence, unless prohibited by Department of Corrections (DOC) policy, to make restitution to the victim’s family.

We assume the fiscal impact based on the enactment of this bill is indeterminate.

This bill is assumed effective 90 days after the end of the 2015 legislative session. 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. 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.

AGO Agency Assumptions: Legal services associated with the enactment of this bill are assumed to begin on July 1, 2015.

Assumptions for the Attorney General’s Office (AGO) Corrections Division’s legal services to DOC:

There will likely be cost savings if this bill is enacted into law, but due to the infrequency of executions it is not possible to calculate the amount of savings to any reasonable degree of certainty. The following background and assumptions are provided:

1. The 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 (COR) in civil rights and other litigation involving challenges to the manner of carrying out death sentences.

2. On average over the last 15 years, the AGO has billed DOC approximately $240,000 per offender sentenced to death for litigation related expenses. This amount includes defense of all habeas corpus proceedings and execution related challenges for each offender subject to a death sentence. The range of billings varies significantly by case, from approximately $100,000 to $400,000 per offender sentenced to death.

3. The costs we can identify as being associated solely with the death penalty (and thus those the state would not incur if the death penalty were eliminated) are costs incurred in defending legal challenges to DOC’s authority/ability to carry out executions. Those costs have ranged historically from $60,000 to $295,000 per

FNS063 Individual State Agency Fiscal Note Request # 15-173-1 Form FN (Rev 1/00) 2 Bill # 1739 HB offender subject to a death sentence, with an average of approximately $140,000.

4. We assume that if this bill is enacted into law, the AGO will 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. 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 will continue to defend habeas corpus challenges to the lawfulness of the offender’s conviction, as we do now. We also will likely defend new challenges to the constitutionality of the automatic LWOP sentences for offenders previously subject to the death penalty.

5. For the 5 years preceding Governor Inslee’s death penalty moratorium, the AGO billed DOC approximately $30,000 to $50,000 per year for non-case-specific legal advice concerning death penalty matters. Calendar year 2014 billings for such services were nominal following the Governor’s announced moratorium, and we do not anticipate billing any significant amounts for death penalty legal advice as long as the moratorium remains in effect. We therefore assume there will be no billings for legal advice concerning the death penalty if the death penalty were eliminated.

6. We assume there will be litigation over the retroactive effect of this bill.

7. We assume that introducing offenders previously subject to the death penalty into the population of existing LWOP offenders can lead to litigation challenging the constitutionality of LWOP sentences on proportionality grounds. The burden of defending any such litigation would fall on the county prosecutors.

8. Eliminating death penalty litigation and related advice will not reduce the need for AGO FTEs. Executions have occurred infrequently in our state, and the related litigation is time limited. We have provided legal services with existing resources for the peak workload demands associated with death penalty litigation through overtime and workload redistribution rather than adding death penalty FTEs.

Assumptions for the Solicitor General (SGO) Legal Services:

1. We assume there will be some savings, but it is difficult to estimate.

2. If we treat the Governor’s moratorium as current law, we assume some impact on SGO workload but highly variable, as capital cases in Washington State are rare. Most of the issues litigated will arise even if the death penalty weren’t a possibility.

3. We assume that we will handle a case involving issues specifically related to the death penalty every other FY, that those cases will typically involve briefing to the Ninth Circuit or the U.S. Supreme Court, and that the SGO will be significantly involved. Eliminating these needs will likely result in savings of 85 AAG hours per FY, or 0.05 AAG at a cost of $10,145 per FY. Part III: Expenditure Detail

Part IV: Capital Budget Impact NONE

FNS063 Individual State Agency Fiscal Note Request # 15-173-1 Form FN (Rev 1/00) 3 Bill # 1739 HB 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.

FNS063 Individual State Agency Fiscal Note Request # 15-173-1 Form FN (Rev 1/00) 4 Bill # 1739 HB Individual State Agency Fiscal Note

Bill Number: 1739 HB Title: Death penalty, eliminating 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: 02/13/2015 Agency Preparation: Ed Vukich Phone: 360-664-9374 Date: 02/16/2015 Agency Approval: John Steiger Phone: 360-664-9370 Date: 02/16/2015 OFM Review: Trisha Newport Phone: (360) 902-0417 Date: 02/18/2015

FNS063 Individual State Agency Fiscal Note Request # 15-043-2 Form FN (Rev 1/00) 1 Bill # 1739 HB 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.

See the attachment. 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. 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.

FNS063 Individual State Agency Fiscal Note Request # 15-043-2 Form FN (Rev 1/00) 2 Bill # 1739 HB HB 1739 REDUCING CRIMINAL JUSTICE EXPENSES BY ELIMINATING THE DEATH PENALTY IN FAVOR OF LIFE INCARCERATION 101 – Caseload Forecast Council February 16, 2015

SUMMARY A brief description of what the measure does that has fiscal impact. Section 1 requires that a life sentence without possibility of parole shall include a restitution order. Section 1 additionally mandates that an offender sentenced to life without possibility of parole accompanied by a restitution order shall, if eligible, be required to work throughout the duration of his/her sentence to satisfy the restitution order. Section 1 additionally 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, 2014.  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 305.176 months (25.431 years), resulting in one execution every 61.035 months (5.086 years). This means that there are 0.016 executions per month (0.197 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 February 16, 2015 HB 1739 Caseload Forecast Council 2 #101-15-043 – 1

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

DatesLife 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 1 bed, first reached at 83 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 10-year analysis period.

 Under current policy, there are 0.197 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 0.197 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 February 16, 2015 HB 1739 Caseload Forecast Council 3 #101-15-043 – 1 Individual State Agency Fiscal Note

Bill Number: 1739 HB Title: Death penalty, eliminating 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

Capital budget impact, complete Part IV.

Requires new rule making, complete Part V.

Legislative Contact: Edie Adams Phone: 360-786-7180 Date: 02/13/2015 Agency Preparation: Karen Barrett Phone: (360)725-8510 Date: 02/18/2015 Agency Approval: Sarian Scott Phone: (360) 725-8270 Date: 02/18/2015 OFM Review: Trisha Newport Phone: (360) 902-0417 Date: 02/18/2015

FNS063 Individual State Agency Fiscal Note Request # 078-1 Form FN (Rev 1/00) 1 Bill # 1739 HB 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.

The bill concerns persons convicted of the crime of aggravated, first degree murder and proposes to eliminate the death penalty in favor of life incarceration. Such offenders are remanded to custody of the Washington Department of Corrections (DOC) under existing law.

Section 1(1) amends RCW 10.95.030 to require that a life sentence without possibility of parole (LWOP) shall include a restitution order and, unless precluded by DOC policy, said offenders are required to work throughout their sentence to satisfy restitution to the victim's family.

Section 1(2) strikes mitigating circumstances that courts of law consider during trial and sentencing as it concerns the intellect or disability status of the defendant who has been charged with this crime.

Section 2 (1) through (14) repeal statutes to effect an elimination of the death penalty in Washington. Generally speaking, these sections concern sentencing procedures; information jurors may receive during trial; limits on appeal and death penalty case review by the State's supreme court.

Effective date is assumed 90 days after adjournment of session in which this bill is passed. 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 known. 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. This bill repeals the death penalty in favor of Life Without Parole (LWOP).

The Caseload Forecast Council (CFC) calculated bed impacts and assumes this bill will result in a maximum bed impact of one (1) Average Daily Population (ADP), first reached in Fiscal Year (FY) 2023. The fiscal impact is estimated at $12,387 in FY2023 [$12,387 Average Unit Cost Per ADP x 1 ADP].

Currently, nine (9) offenders are sentenced to death in Washington: all males, incarcerated at the Washington State Penitentiary (WSP). The nine (9) offenders are located in our Intensive Management Unit (IMU) at the WSP, located in Walla Walla. Offenders currently sentenced to LWOP are housed in close custody for at least four (4) years and are housed in maximum custody (IMU) if warranted by behavior. Subsequent placement in medium security requires multidisciplinary review and recommendation, and approval from the Assistant Secretary for Prisons.

Assumptions: 1. We assume impact based on the Caseload Forecast Council (CFC) estimated ADP impacts to DOC prison

FNS063 Individual State Agency Fiscal Note Request # 078-1 Form FN (Rev 1/00) 2 Bill # 1739 HB facilities/institutions.

2. We assume an AUC of $12,387 per offender per FY to facilitate cost discussions during legislative session for bills. This cost estimate includes prison custody staffing on living/housing units, prison direct variable costs, health services direct variable costs, and prison non-custody essential staffing on living/housing units. It does not include staffing or dollars necessary for staffing needed at the facility outside of the living/units. AUC is calculated by DOC and reviewed and approved by Office of Financial Management, Senate, House and Washington State Institute for Public Policy staffing each legislative session. DOC will need to true up impact to DOC so that full impact can be determined, i.e. opening/closing units or prisons once we better understand impacts down to the custody level, and facility.

3. We assume an indeterminate impact to legal services being rendered by the Office of the Attorney General (AGO). The AGO fiscal note includes additional detail.

4. We assume no savings for AGO legal services associated with defending legal challenges to DOC’s authority/ability to carry out executions. Those costs have ranged historically from $60,000 to $295,000 per offender subject to a death sentence, with an average of approximately $140,000. This cost is requested as one-time significant litigation costs and is not in our base funding.

5. We assume restitution impacts are unknown. All able bodied offenders are expected to participate in work assignments, education programs, and/or programs ordered by the sentencing court or paroling authority or required by statute. 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.

FNS063 Individual State Agency Fiscal Note Request # 078-1 Form FN (Rev 1/00) 3 Bill # 1739 HB LOCAL GOVERNMENT FISCAL NOTE Department of Commerce

Bill Number: 1739 HB Title: Death penalty, eliminating

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 2016 FY 2017 2015-17 2017-19 2019-21 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: 02/17/2015 Leg. Committee Contact: Edie Adams Phone: 360-786-7180 Date: 02/13/2015 Agency Approval: Steve Salmi Phone: (360) 725 5034 Date: 02/17/2015 OFM Review: Trisha Newport Phone: (360) 902-0417 Date: 02/18/2015 Page 1 of 3 Bill Number: 1739 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. The sentence shall require the defendant to make restitution to the victim's family and to pay all other forms of restitution authorized by law. Unless precluded by Department of Corrections (DOC) policies, the offender shall be required to work throughout the sentence to satisfy the restitution. 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 . At least one of the defendants admitted guilt shortly after murdering six family members in 2007 in Carnation. According to the Seattle Times, in the more than seven years since the arrests, the cost of defending and prosecuting Anderson and McEnroe has reached nearly $10 million; more than $8 million of that has been in defense costs. 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

Page 2 of 3 Bill Number: 1739 HB FNS060 Local Government Fiscal Note "What costs more, the death penalty or life in prison?" KNDU, Sept. 21, 2011 "McEnroe defense: Girlfriend coerced 2007 Carnation killings," Seattle Times, January 20, 2015

Page 3 of 3 Bill Number: 1739 HB FNS060 Local Government Fiscal Note