The mission of Oregon Justice Resource Center is to dismantle systemic discrimination in the administration of justice by promoting civil rights and enhancing the quality of legal representation for traditionally underserved communities.
OREGON JUSTICE RESOURCE CENTER was founded to bring about a criminal justice system in Oregon that is protective of individual rights and liberties and where everyone enjoys equal treatment under the law.
We are a 501(c)(3) nonprofit organization based in Portland, Oregon, and founded in 2011.
We work in collaboration with other like-minded organizations to maximize our reach to serve underrepresented populations, to train future public interest lawyers, and to educate our community on civil rights and current civil liberties concerns. We provide legal services to currently and formerly incarcerated clients with a particular focus on populations typically underserved by the legal system, such as people of color and people living in poverty.
We complement our direct service to clients with integrative advocacy: combining litigation, legislative reform, and other policy and communications activities to bring about systemic change.
We train the public interest lawyers of tomorrow by providing opportunities to law students to work at our office in downtown Portland. Through us, they learn about important issues affecting the criminal justice system and gain valuable skills in investigation, research, and writing while working on cases.
We provide amicus curiae (friend of the court) assistance to cases presenting significant social justice issues or of particular concern to communities typically underserved by the legal system.
OREGON INNOCENCE PROJECT
We launched Oregon Innocence Project in 2014 with a mission to exonerate the wrongfully convicted, train law students, and promote legal reforms aimed at preventing wrongful convictions. The extraordinary number – not to overlook the shocking stories – of exonerations throughout the United States have proven
that our criminal justice system is systemically flawed and that reform is needed to help prevent future wrongful convictions.
Oregon is not exempt from error. Oregon, like every other state, is susceptible to the same causes of wrongful convictions, such as mistaken eyewitness identification, false confessions, and invalidated or improper forensic science. According to the National Registry of Exonerations, there have been 10 exonerations in Oregon. Without a program in Oregon that focuses solely on wrongful convictions, there would be no certain way to know whether any of the people currently incarcerated here should in fact be freed.
Oregon Innocence Project is the only project of its kind in Oregon whose sole mission is to actively track inmates’ claims of innocence, investigate those claims, test DNA and other scientific evidence, and litigate where appropriate. We provide free legal assistance to inmates who assert factual innocence and where there is the possibility of proving innocence. As well as securing the release of the wrongfully convicted, we provide an outstanding educational experience for students.
We collaborate with all stakeholders (district attorneys, the defense bar, policymakers, police, victims’ rights groups, forensic scientists, laboratory managers, and others). Our goal is to build support for comprehensive criminal justice reform to improve eyewitness identification, interrogation practices, discovery practices, and other policies that do not serve to protect the innocent or punish the guilty.
Please note that Oregon Justice Resource Center is a 501(c)(3) nonprofit organization. Oregon Innocence Project is administered by the Oregon Justice Resource Center and is not a separate 501(c)(3).
REENTRY LAW PROJECT
Our Reentry Law Project provides individual legal assistance to clients of MercyCorps Northwest who have recently been released from prison. Our clients need a wide range of forms of legal assistance, in particular with family law matters, debt, and understanding court judgments and other documents. We may help someone secure a driver’s license so they can get to work, address a past eviction so they can find housing, or modify a child support order so their contribution to the costs of raising their child fairly reflects their income.
Our aim is to reduce recidivism, improve public safety by addressing the unmet legal needs of people returning to the community after a period of incarceration, deal with the root causes of reoffending, and systematically reform and reduce the collateral consequences of convictions.
MercyCorps Northwest’s Reentry Transition Center provides an array of services to around 1000 formerly incarcerated people each year. Our partnership allows their clients to access free direct legal assistance including intakes, advice, and referrals to specialist attorneys.
We track information on trends and issues affecting our clients that may point to a need for changes in practice, policy, or law. Where we see change is needed, we will promote reform through public education and by engaging lawyers, courts, academics, policymakers, and legislators as well as those most directly affected by incarceration and its consequences.
We facilitate presentations to inmates by expert guests and formerly incarcerated individuals about relevant laws, government procedures, and practical tips about reentry concerns such as employment, housing, consumer law, family law, etc.
WOMEN’S JUSTICE PROJECT
We created the Women’s Justice Project as the first and only program in Oregon to exclusively address the needs of women who are incarcerated. Nearly 1300 women are incarcerated in Oregon as of August 2015. Between 2005 and 2015, the number of women incarcerated in our state increased by 35 percent. The number of men incarcerated grew by 13 percent over the same period.
Our goals are to ensure that the criminal justice system treats women fairly, protects their health and safety, and makes it possible for them to successfully rejoin their communities when they are released. We do this through integrative advocacy: combining litigation, legislative reform, and other policy and communications initiatives.
We provide individual legal assistance to clients of Red Lodge Transition Services housed in Coffee Creek Correctional Facility in Wilsonville, Ore. Red Lodge aims to prevent the incarceration of Native Americans and assist those who are incarcerated in working toward a better life for themselves, their children, and their communities. We work with our clients to identify legal issues that might become barriers to success when they are released. We help to resolve these issues or to assist clients on how to plan around legal roadblocks.
We also want to start a wider conversation about how many women we are locking up in Oregon and why. We host the Women In Prison Conference to provide training and discussion opportunities to lawyers, social workers, counselors, and others who work with incarcerated women. In 2016, we will launch the HerStory collection, to gather the personal stories of incarcerated women. We track information on trends and problems affecting our clients that may point to a need for changes in practice, policy or law. Where we see change is needed, we will promote reform through public education and by engaging lawyers, courts, academics, policymakers, and legislators as well as those most directly affected by incarceration and its consequences.
Oregonians have changed their minds about the ultimate punishment many times over the last century. In its most recent incarnation, the death penalty was reinstated by voters in 1984. That decision allows jurors in aggravated murder cases to sentence a convicted person to death, life imprisonment without the possibility of parole, or life imprisonment.
Today there are 34 men and one woman on Oregon’s death row. Lethal injection is the method of execution that would be used if death sentences were being carried out but there is no current prospect of any executions taking place. This is due to a moratorium put in place by former Governor John Kitzhaber in 2011 and continued by his successor, Governor Kate Brown. The death penalty remains a sentencing option in aggravated murder trials and death sentences are still being handed down by Oregon’s courts.
Understanding of the problems with the death penalty continues to grow across the country. One of the most important issues is the number of people who have been sentenced to death and later exonerated because they were in fact innocent of the crimes of which they were convicted. As of October 2015, 156 people have been exonerated across 26 states. At the time these people were convicted, the juries who found them guilty firmly believed they were making the right decision. The prospect of innocent people being executed is one that rightly horrifies all of us.
Oregonians have spent tens of millions funding the death penalty since 1984, a cost that significantly outweighs that of sentencing a defendant to life without parole. Huge resources must be committed to death penalty cases by both prosecutors and defense attorneys. The years of appeals that follow a death sentence also have a significant price tag attached. Streamlining the appeals process is not the answer because it would increase the risk of innocent people ending up on death row. All this money could instead be invested in initiatives that would actually reduce crime in Oregon and make our communities safer.
While it might seem as though a punishment as serious as the death penalty would be fairly applied by prosecutors this is far from the case. There are disparities in the likelihood of a defendant receiving the death penalty based on the county in which he or she is on trial, the race and socio-economic status of the defendant and the victim(s), the quality of the legal representation the defendant can afford, and the whims of prosecutors in deciding whether or not to seek death.
The death penalty is a broken system that is not serving Oregonians well. Rather than pretend to continue to use capital punishment by sentencing people to death despite the moratorium, we would be better served by ending the use of the death penalty in our state and opting for life without the possibility of parole instead.
We are leading a working group of seven organizations coming together to end the death penalty in Oregon. The other members of the group are:
- ACLU of Oregon
- Amnesty International USA, Oregon Chapter
- Ecumenical Ministries of Oregon
- Oregon Capital Resource Center
- Oregon Criminal Defense Lawyers Association
- Oregonians for Alternatives to the Death Penalty
We are studying public opinion on the death penalty, conducting legal research on the problems with Oregon’s death penalty, reaching out to opinion leaders and decision makers, and building our capacity and infrastructure.
Through our amicus curiae (“friend of the court”) project, we provide amicus assistance to cases in Oregon that present significant social justice issues related to criminal defense, civil rights, or juvenile justice, or are of particular importance to communities typically underserved by the legal system.
As part of our mission to advance civil rights and liberties through advocacy, we draft as well as sign on to amicus briefs on cutting-edge social justice issues facing Oregon courts. Amicus curiae briefs are an important way in which we contribute our analysis of significant but undeveloped aspects of critical cases.
LAW STUDENT TRAINING
We offer an exciting opportunity for students to engage in a critical examination of and participation in important and complex issues in the criminal justice system.
Students have the opportunity to learn about and work on:
- cases/issues related to innocence through Oregon Innocence Project
- advancing criminal justice reform (including appellate advocacy)
- post incarceration prisoner reentry through the Reentry Law
Students involved in the Clinic have the chance to:
- conduct legal investigations
- conduct legal-fact research and analysis
- write motions, briefs, and reports for filing in state trial and appellate courts
- interview and advise clients
- attend legal and legislative meetings and hearings
- meet and participate in strategy sessions with members of the bar, the judiciary, and community
Executive Director Bobbin Singh
Bobbin Singh is the founding Executive Director of Oregon Justice Resource Center. He was born and raised in Atlanta, GA., and deeply inspired by the great figures of the civil rights movement in the South. He believes that mass incarceration, including over incarceration, mass conviction, and wrongful convictions, is in fact the greatest civil rights crisis of our time and we must all take ownership of it. Bobbin manages OJRC, oversees staff, volunteers, and all programs, and serves as our principal spokesperson. Working with our Board of Directors, he sets policy and direction for OJRC.
Director of Policy & Advocacy Kate Gonsalves
Kate Gonsalves has led political campaigns with community groups, progressive nonprofits, and unions in multiple states. She received her master’s degree in politics as a Rotary Scholar at the University of British Columbia. Her commitment to criminal justice reform stems from her work with Dr David Baldus and the American Civil Liberties Union linking race and death penalty sentencing along with coursework examining race and mass incarceration under Dr. Angela Davis.
Director of Communication Alice Lundell
Alice Lundell is an experienced news reporter and marketing and communications professional. Alice received her BA (Hons) Classics from the University of Leeds, England. After graduation, she spent a decade working for the BBC and ITV as a journalist and broadcaster in her native United Kingdom before immigrating to the United States.
Alice has been channeling her commitment to social justice and poverty alleviation into helping nonprofits better communicate their message since her arrival in Oregon.
Law Fellow/Staff Attorney Brittney Plesser
Brittney Plesser works almost exclusively on Oregon Innocence Project cases and issues. Although new to our staff, Brittney has been working at Oregon Innocence Project since September 2014 as a legal extern. Before joining OIP, she was a legal intern at the California Innocence Project in San Diego, and a legal intern at the ACLU of Oregon.
Brittney is dedicated to social justice and criminal justice reform and is thrilled to have the opportunity to cultivate her passion as our first Law Fellow/Staff Attorney.
Legal Director Steve Wax
Steve Wax served as Oregon’s Federal Public Defender for more than 30 years, and was one of the longest-serving public defenders in the country. Steve and his federal defender team successfully represented six men formerly held as “enemy combatants” in Guantanamo. He has taught at Lewis & Clark Law School, serves as an ethics prosecutor for the Oregon State Bar, and lectures throughout the country. He has been honored for his work by numerous groups and is a fellow in the American College of Trial Lawyers.
Kafka Comes to America, his book about representing Portland attorney Brandon Mayfield and the men in Guantanamo, won four national awards.
Associate Director Amie Wexler
Amie Wexler graduated from Lewis & Clark Law School in 1999. She has been an ardent advocate for access to justice and worked across the nonprofit sector while in law school and in her years since graduating. Most recently, Amie worked at Portland State University’s Student Legal Services, providing legal access for students who would not otherwise have had representation. Amie brings her fundraising, lobbying, and legal experience to OJRC to grow our capacity.
Project Director, Reentry Law Project/
Women in Prison Project Julia Yoshimoto
Julia Yoshimoto worked in the social services field for six years before attending law school. She worked primarily with low-income clients in the areas of behavioral health and drug addiction. Through this work, she became acutely aware of the need for accessible, high-quality, and compassionate legal services for marginalized individuals. She is dedicated to using her law degree to increase access to justice by strengthening the bridge between legal services and social services.
Oregon’s Death Penalty:
A Cost Analysis
The primary goal of this study was to estimate the economic costs associated with aggravated murder cases that result in death sentences and compare those costs to other aggravated murder cases, the majority of which resulted in some form of a life sentence, in the state of Oregon. Importantly, Oregon law does not require the prosecution to file a formal notice indicating whether or not the state will seek the death penalty in aggravated murder cases. Therefore, all aggravated murder cases are treated as death penalty cases, likely inflating the average cost of aggravated murder cases that do not result in a death sentence. In order to provide a bit more context, we include costs for non‑aggravated cases where defendants were charged with a lesser charge of murder, in categories where data were both available and reliable. The following are the main findings from the study, presented by total (includes all cost categories), then by individual cost category.
The information contained within this research report reflects a thorough analysis of data collected from hundreds of aggravated murder and murder cases over 13 years in Oregon, from 2000 through 2013. We also examined the appeals process of aggravated murder cases that resulted in death sentences between 1984 until 2000. The economic findings below are limited because no cost data were available or provided by district attorneys or the courts. We were able to get cost‐‑related information from local jails (costs associated with incarceration during trial), Department of Corrections (DOC) (incarceration costs), Office of Public Defense Services (OPDS) (trial, appeals, and all stages of post‐‑conviction costs), and the Department of Justice (DOJ) (Oregon’s Attorney General’s Office) (costs related to appeals and all stages of post-‐‑conviction). Although these categories make up a great deal of the overall costs related to aggravated murder cases, they only represent a portion of the total costs for pursuing the death penalty in Oregon. We approached all data and cost estimations from a conservative standpoint, meaning the costs are intentionally underestimated.
- Main Findings
We provide economic cost findings by case category and cost subcategory. Because of the complex nature of aggravated murder cases — for example, that some death penalty cases had original death sentences reversed and resentenced as true life/life without the possibility of parole (LWOP) — we provide two separate sets of analyses based on each main case category. First, we provide findings based on whether the case was designated as a death penalty case, meaning there was a conviction and original sentence of death, but in some cases, that initial sentence was reversed. Those findings are marked “A” below. Second, we provide an analysis based on final (to-‐‑date) case categories. Those findings are marked “B” below. Cost subcategories include jail costs, OPDS costs, DOC costs, and DOJ costs. For both, we compare the death penalty cases to death-‐‑eligible but not sentenced to death cases, most of which resulted in true life/LWOP sentences. Similar to the non-‐‑enumerated analyses above, where appropriate (only jail and OPDS costs could be reliably calculated) we bring in non-‐‑aggravated murder as an additional point of comparison.i With that context in mind, here are our main findings:
- The average cost difference between aggravated murder cases that
(A) begin or
(B) result in the death penalty,compared to those aggravated murder cases that result in either true life/LWOP, ordinary life, or shorter sentences is (not including DOC costs):
A= $802,106 (3.55);
B= $1,056,093 (4.16).
- The average cost difference including DOC costs:
A= $918,896 (1.69);
B= $887,385 (1.53).
- The average cost of pursuing the Death Penalty has increased significantly over the last few decades. This continuing trend can be seen in Chart 2, below.
- A total of 62 individuals have been convicted and sentenced to death in Oregon since 1984.Twenty-eight of those individuals are no longer on death row.Of those 28 cases, just two cases have resulted in death (both individuals dropped their appeals and “volunteered” to be executed), four people died of natural causes while in prison, and 22 people, or roughly 79%, have had their sentences reduced.One person had his case dismissed on direct appeal and another person pled to manslaughter—both were released. The remaining 20 people had their sentences changed from death to either true life/LWOP or ordinary life.
(Note: above, ratios are presented in parentheses; in Table 1.e below, A= Original Death Sentence, B= Current Sentence Status)
(i The prosecution and courts could not produce any reliable per‑case cost estimates. For all adjustments, the Organization for Economic Co-operation and Development (OECD) Main Economic Indicators (complete database, base year 2010, Consumer Price Index – Total All Items for the United States) were used to adjust nominal values into 2010 dollars. The findings are then presented in real 2016 dollars.
Table 1.e. Total Average Differences by Cost Category and Case Category, in 2016 Dollars.
w/o DOC Costs
Agg Mur 313 $315,159 DP 61 $1,117,265 $802,106* 3.55 Set A.
with DOC Costs
Agg Mur 313 $1,354,883 DP 61 $2,273,779 $918,896* 1.68 Set B.
w/o DOC Costs
Life 219 $334,522 DP 41 $1,390,616 $1,056,093* 4.16 Set B.
with DOC Costs
Life DP 219
Note: Case Category: Set 1 = all death penalty designated cases; Set 2 = current sentence death penalty compared to life sentences. *p< .001 (t-‐‑tests for set 1 and F, ANOVA for set 2).
B. Death Penalty Post-Conviction Findings
Since 1984, when Oregon reinstated the death penalty, juries have sentenced 62 people to death. Of the 62 sentenced, 34 (54.84%) people remain on death row today and their cases are still active and at some stage in the appeals process. Of the remaining 28, two people were put to death after voluntarily dropping their appeals and four people have died in prison of natural causes. One person had his case dismissed on direct appeal and was released from prison, and another person, after multiple appeals pled to manslaughter and was released after serving his sentence. The remaining 20 people had their sentences changed from death to either true life/LWOP or ordinary life. For all of the effort to pursue death, so far just two out of 62 death cases have concluded with an execution.
Table 2.e. Death Penalty Post-‐‑
Conviction Details (n=62).
n % total w/in group%
DP since 1984 62 100
Still in Process 34 54.84
Total Completed 28 45.16
Death (vol) 2 3.23 7.14
Death (nat) 4 6.45 23.04
Off Death Row 22 35.48 78.57
Notes: “Completed” means that the case has come to a conclusion: “vol” = voluntary “nat” = natural causes.
C. Additional Findings
The vast majority of aggravated murder cases, whether death penalty or non-‐‑death penalty, are complicated and time-‐‑consuming cases. Death penalty cases, however, outpaced all others in the average number of hearings and defense and prosecution court filings. We include the following analysis to shed light on these complexities. Additionally, because we had reliable data for a sample of non-‐‑aggravated murder cases, we include averages here to provide an additional point of comparison.
- Average number of hearings: Aggravated Murder Death Penalty= 20.93, Aggravated Murder non‑Death= 9.79, Average Difference= 11.14 (ratio= 2.138).
- Non-aggravated Murder= 8.13; Average Difference when compared to Aggravated Murder Death Penalty = 12.8 (ratio= 2.574), and when compared to Aggravated Murder non-‐‑Death= 1.66 (ratio= 1.204).
- Average number of defense court filings: Aggravated Murder Death Penalty= 39.21, Aggravated Murder non-‐‑Death= 19.58, Average Difference= 19.63 (ratio= 2.003).
- Non-aggravated Murder= 5.63; Average Difference when compared to Aggravated Murder Death Penalty= 33.58 (ratio= 6.964), when compared to Aggravated Murder non-‐‑Death= 13.95 (ratio= 3.478).
- Average number of prosecution court filings: Aggravated Murder Death Penalty= 25, Aggravated Murder non-‐‑Death= 10.31, Average Difference= 14.69 (ratio= 2.425).
- Non-aggravated Murder= 3.2; Average Difference when compared to Aggravated Murder Death Penalty= 21.8 (ratio= 7.813), when compared to Aggravated Murder non-‐‑Death= 7.11 (ratio= 3.222).
D. Geographic Analysis for Sample Cases
Table 3.e., below, provides a breakdown of the geographic location of the original sentence and current sentence or outcome, in total, of the cases included in this study (N = 374). The majority of the cases are concentrated in six counties, beginning with Multnomah, followed by Clackamas, and then Washington, Lane, Marion, and Umatilla counties.
Table 3.e. Database Case Frequency (f),
by County and Sentence Outcome (B) (N = 374).
Other Total f (%) **Multnomah
Total 36 (54) 182 88 307 (82.1)
Notes: *Under Death Column, numbers in (parenthesis) are counts of original death sentences. The following counties had fewer than 9 cases (both AggM and DP, respectively) and were not included above: Klamath (7,1); Benton (6); Clatsop (6); Jackson (6); Josephine (5); Curry (3,1); Polk (3,1); Yamhill (3,1); Columbia (2,1); Grant (3); Lincoln (2,1); Malheur (3); Tillamook (3); Harney (2); Union (2); Wasco (1,1); Baker (1); Crook (1); Hood River (1); Total in notes: Death: 5, Life: 37, Other: 25, Total = 67 (17.9%), 307 (82.1%), 374 total (313 agg murder; 61original DP). **Multnomah also contains one acquittal case, not counted in the columns, but counted in the row total.
Another excerpt from the Oregon Death Penalty Costs Study — narratives about the researchers’ discussions with various players in the death system. The district attorneys gave the researchers only limited cooperation, as outlined in the study report:
In the course of our research we were invited to spend two days at the Deschutes County District Attorney’s office. 151
There, we interviewed District Attorney (DA) John Hummel, his Chief Deputy DA, Mary Anderson and two other Deputy DAs, Steve Gunnel and Kandy Geis, both of whom have prosecuted aggravated murder cases including cases involved in this study. Additionally, we spent several hours interviewing Clackamas County DA John Foote.152
We hoped and intended to visit several counties to interview their prosecutorial teams because DAs’ offices do not track direct costs on a case-by-case hourly basis as defense attorneys do. We wanted therefore to gain an understanding of their processes, and to distinguish county-to-county differences. Over a period of three months we sent letters to 29 of the 36 DAs before receiving a letter from the Oregon District Attorneys Association (ODAA) severing our opportunity to conduct further individual interviews.153
The ODAA letter represents general observations of district attorneys across the state. In this section, we summarize the interviews we were able to undertake, and the observations about the costs and processes of aggravated murder in Oregon, provided by the ODAA. As discussed above, in Oregon, unlike in many other states, the aggravated murder statute does not require a county district attorney to announce at any point during the pre-trial process whether the state is seeking the death penalty.154
If the facts and circumstances of a murder are determined to be severe enough to meet the statutory requirements, the prosecutor has the discretion to charge the defendant with aggravated murder. If convicted, the defendant will face one of three sentences: death, true life/LWOP, or ordinary life. If the sentence is not determined in a plea deal, it is the jury that decides which of the three sentences is appropriate.
Only a jury can decide upon a death sentence in Oregon. Consequently, if a sentence is determined through a bench trial or a plea deal, the sentencing choices are automatically limited to true life/LWOP or ordinary life.
According to the ODAA, 94 percent of all Oregon criminal cases result in some sort of plea deal before trial.155
Plea deals, the ODAA’s board of directors wrote in their letter, are “the engine that makes our system work fairly, efficiently and promptly.”156
All the prosecutors we interviewed were consistent in stating that the plea decisions they make are driven by the facts of the case, the offender, and the statutory requirements. This means that the plea negotiations are often time-consuming. Most decisions are not made until some investigation has been completed. Anderson explained that it is dangerous to start meaningful plea negotiations too early in the process, without the benefit of proper investigation and mitigation evidence. The ODAA letter explained that the process evolves thorough consultation with victims’ families, law enforcement, and the prosecution team. In addition, prosecutors seek and consider mitigating evidence presented by the defense. Communication between the two sides is often extensive as discussions involving information-sharing and negotiations proceed.
In its letter, the ODAA was clear that from the perspective of its members, plea bargaining must not be misconstrued as district attorneys leveraging the possibility of death in the interest of exacting a plea. In virtually every criminal case, defendants are facing a more serious sentence than one offered in negotiations. Aggravated murder charges are reserved for the most serious crimes, and consequently these charges carry the possibility of the most serious punishment. This underlying fact forms the conditions in which district attorneys commence negotiations. It is the fundamental nature of criminal negotiation, explained Foote, that a defendant wishes to have a possible sentence or conviction mitigated or reduced. Circumstances dictate how negotiations occur.
For instance, Gunnel explained that in one case, it was a priority for the district attorney to ensure the defendant was put away for life because he felt that the defendant was a very dangerous person. Because the evidence was complex and circumstantial, both the prosecution team and the judge believed it would be preferable to have a bench trial. The defendant agreed to waive a jury trial and leave the case consolidated for a bench trial in exchange for the prosecution’s agreement not to seek a death sentence. Prosecutors can be motivated by many factors in plea negotiations: the cooperation of the defendant; whether the victim’s family wants a quick closure to the case; the strength of the evidence; the complexity of the investigation; and/or the facts of the crime.
Geis offered an example of one case in which the prosecution was motivated to make a plea deal with a defendant because he cooperated in finding the body, which was very important to the victim’s family. The only time death really comes up, Geis explained, is at the very beginning of the aggravated murder case when the judge asks whether the death penalty is being considered. Initially, the prosecutor says yes, so the judge appoints a death-qualified defense team. This is the only time that death is discussed until the investigation is complete.157
When a case begins in Deschutes County, Anderson assigns a prosecutor who has at least five to ten years of experience prosecuting aggravated murder cases. At the beginning of each case, it is a heavy load for the selected prosecutor. He or she spends time investigating the crime scene, coordinating with detectives, and conducting briefings, grand juries, and bail hearings. Ideally, the same prosecutor works on a case from beginning to end, to retain familiarity with the victims and details of the case. To ensure continuity and efficiency, Anderson makes efforts to reassign prosecutors to repeat offenders whose cases they have worked on previously. In addition, Anderson monitors the complexity of each case before deciding whether she should assign a second prosecutor.
After the grand jury and bail hearing, prosecutors spend a significant amount of time in the investigative stage. They search for detailed information about the defendant, such as mitigation evidence, aggravating evidence, and prior criminal history. They also gather information about the victim.
According to the ODAA letter, prosecutors find this phase is usually fruitful and leads to a plea without trial. Anderson said that, generally speaking, she finds that defense teams are much more cooperative when they feel they have strong mitigating evidence. Foote explained that DAs’ offices operate in an environment of fiscal responsibility. Their annual budgets are set by the state and are based upon budget requirements from prior years. Unlike the defense costs under OPDS, DAs’ offices do not keep track of attorney and paralegal hours worked, nor do they compute costs on a case-by-case basis. When a big case reaches their office, prosecutors and other employees work more hours, but, according to Anderson, their costs remain unaffected. She explained that if a prosecutor assigned to a big case must divert attention away from other cases, the workload is simply delegated to other prosecutors in the office. Anderson noted that aggravated murder cases are not inherently more complex or time-‐‑ consuming than other types of cases. For example, a complex DUI case could be more time-‐‑ consuming for her team than a clear cut, simple aggravated murder case. Geis said that child sex cases generally take the most time.
Nevertheless, some aggravated murder cases are exceptionally time‑consuming. Gunnel described one case in which he and another prosecutor worked for at least forty hours a week doing legal research for several months in the year leading up to trial, in addition to their regular caseload. In the six months prior to the 47-day trial, Gunnel estimated that he, the other prosecutor, their trial assistants, sheriffs, and detectives worked “overtime, crazy hours,” often upwards of eighty hours per week.158
While virtually all of these costs fit within the DAs’ set annual budgets and impose no additional costs upon the state, such a system does impose a human cost on the individual prosecutors who will often work for months at a time on big cases. The hours are long and, when necessary, may require working seven days a week. This is the nature of the job, according to Foote. Some cases require additional expenses that exceed the DA’s regular office budget. For instance, the prosecution of some cases requires that the office hire experts or specialists in various fields, which can be expensive. They may also need to pay for the travel expenses for witnesses to appear. When costly expenses are incurred, there are additional discretionary funds from which they draw. However, according to Foote, these types of expenses are usually accounted for in the DA’s office’s annual budget.159
During the pretrial process, both prosecution and defense teams file motions depending on the legal issues that the case implicates. The time it takes to file a motion ranges from 10 minutes, to a year, depending on the unique nature or complexity of the issues involved. A standard motion, often in boilerplate form, such as an alternate jury motion, can quickly be completed by an assistant. Alternatively, an issue that has never before been argued, can be exceptionally challenging and time-consuming.
Foote, the ODAA, and the Deschutes team were clear that there was no way to meaningfully compute the time that prosecutors worked on any specific case based solely on the number of motions filed. The DA’s office will often stay involved with a case if there is an appeal, which can be very time-consuming and often frustrating for the office, according to Anderson. If there is a good trial record the appellate team can avoid taking too much of the trial team’s time. In Anderson’s opinion, post-conviction review can often be more time consuming for the prosecutors than general appeals, because they often need to work with the appellate team on the issues.
Future post-conviction review can also impose more work on the prosecutors during trial. Anderson explained that defense attorneys must be diligent to ensure that every possible motion is filed, and objection made so they are not subject to ineffective counsel claims. 160
Because of this, Anderson believes that many defense attorneys create more work for the DAs’ offices during the trial by requiring prosecutors to respond to all defense filings.
Foote and the ODAA are openly critical of the defense system in Oregon. Foote said that the OPDS does not operate under the same fiscal controls or transparency as the DAs’ offices do. His sense is that over the years there has been a substantial increase in the resources available to defense teams. This has impacted prosecution costs too as they must respond to every challenge presented. The letter from the ODAA calls for more oversight to ensure that state resources are expended wisely.
Finally, when we discussed the problems and complexities of the Oregon death penalty system as it currently operates, the district attorneys that we interviewed had different perspectives. Hummel is personally opposed to the death penalty and considers it a discretionary punishment that he is not required to use. In Deschutes County, when he is faced with an aggravated murder case, he will unofficially tell the defense in advance of trial where the prosecution stands. He thinks a defendant should be on notice, as is the norm in many other areas of Oregon law.
Foote, however, believes that there are some crimes that a person cannot come back from, crimes for which there is no just punishment. In those cases, he believes death is appropriate. He is frustrated by the death penalty moratorium imposed by the Governor. In Foote’s opinion, it merely prevents justice from being served. He believes that death row houses the worst offenders who deserve to be there. Geis has a pragmatic approach to the death penalty in Oregon. She agrees with the death penalty in theory, but, because it is so expensive and provides no closure to victims’ families in the current system, she is not so sure it is appropriate now. Finally, Anderson said that, as a prosecutor, her job is to follow the law and apply the statutes. Therefore, she believes her personal opinion is of no consequence.
A. Previous Oregon Studies
There are no previous cost studies, and there is only a minimal amount of scholarship on Oregon’s death penalty. In his 2006 essay about Oregon’s death penalty costs, Dr. William Long compared the cost of administering the death penalty in Oregon in a case where a defendant pursued all appeals as provided by law, to the costs of a case that resulted in a sentence of true life/life without the possibility of parole (LWOP) where a defendant waived all of his rights to further appeals at the trial court level.15 The purpose of Dr. Long’s research was to provide testimony about the cost of Oregon’s death penalty in defendant Sebastian Shaw’s death penalty sentencing phase trial.16 Long concluded that it was at minimum 50 percent more expensive to execute someone in Oregon and could be as much as five times the cost of a true life/LWOP sentence, conceding that there were many “numerical uncertainties” in cases going forward.17
Lewis & Clark Law School professor Aliza Kaplan (one of the authors of this study) examined Oregon’s death penalty in a 2013 law review article. While Kaplan’s article discussed many issues about Oregon’s death penalty, her research relating to its cost was limited by the lack of any prior cost studies or official cost record keeping. Data related to state costs for individual death penalty cases, or for the system as a whole, was simply unavailable.18 Some state agencies, however, did report some generalized financial totals when asked. In 2012, Oregon’s DOC, OPDS, and DOJ provided Professor Kaplan with the following information about death penalty costs: the average cost to house an inmate (death row or otherwise) was $30,105.20 per year or $82.48 per day;19 the average cost of defending a death penalty case at the trial level between 2002 and 2012 was $438,651, while the average cost of defending a non-‐‑death aggravated murder case at the trial level was less than half that at $216,693.20 DOJ spent on average $66,728.65 and 818.5 attorney hours on direct automatic appeals in the cases of 61 death penalty defendants.21 But the figures the DOC, OPDS, and DOJ provided do not tell the entire story as they only include certain direct legal costs and expenses that were accounted for by case. The figures exclude other staffing and administrative costs and do not include any costs associated with administering the death penalty, such as pre-‐‑conviction jail costs, jury costs, cost of prosecution, and court costs, to name a few.22
B. Empirical Studies in Other States
Recently conducted studies in Washington, Idaho, Kansas, Colorado, California, and North Carolina demonstrate that the costs associated with seeking and administering the death penalty are significantly greater than cases where capital punishment is not an option.
In 2015, Seattle University professors (including Peter Collins, an author of this study) released an analysis of the costs of pursuing the death penalty in aggravated first-‐‑degree murder cases in Washington state.23
The study found that the total average cost for cases where the death penalty was sought amounted to $3.07 million as compared to the $2.01 million spent on cases where the death penalty was not sought.24
- Jail costs for cases where the death penalty was sought were 1.4 to 1.6 times more expensive than for cases where the death penalty was not sought;
- trial level defense costs were 2.8 to 3.5 times higher;
- trial level prosecution costs were 2.3 to 4.2 times higher;
- court, police/sheriff, and miscellaneous costs were 3.9 to 8.1 times higher; and personal restraint petitions and appeals are 5.7 to 6.3 times higher.25
- The average costs related to pursuit of the death penalty exceeded those for cases where death was not sought in all but one cost category. The study concluded that, combining all cost categories, “[t]he total average difference in costs when the death penalty is sought is $1,058,885 in 2010 dollars, or $1,152,808 in 2014 dollars.”26
The Idaho Legislature released a report on the financial costs of the death penalty in 2014. The committee that conducted the study was unable to obtain comprehensive cost data and so proceeded using other metrics, such as time.27
For example, between 2001 and 2013, the state Appellate Public Defender’s Office accumulated almost 80,000 billable hours on capital litigation for 10 defendants with death sentences compared to about 17,000 hours for 95 defendants with life sentences.28
That translates to an average 44 times more billable hours worked on capital cases per defendant. Additionally, capital cases that went to trial took an average of 20.5 months to reach a judgment, while non-capital cases took an average of 13.5 months.29
Capital cases took an average of seven months to reach judgment.30
In 2011, Idaho conducted its first execution in 17 years. To prepare for this and a second 2012 execution, the Idaho Department of Correction spent nearly $170,000 in one-‐‑time construction and improvement costs.31
In 2014, the Kansas Judicial Council’s Death Penalty Advisory Committee published a death penalty cost analysis—an update to its earlier 2009 study.32
Looking at a small sampling of cases, the Committee found that the average defense costs totaled $395,762 for trial cases where death was sought and $98,963 for non-death cases.33
For cases that resulted in pleas, the average defense costs were $130,595 (death) and $64,711 (non-‐‑death).34
The Kansas Supreme Court estimated that, during the three years leading up to the study’s release, its seven justices spent a total of 2,000 hours working on death penalty cases and its research attorneys spent 1,600 hours on death penalty appeals.35
The Court also estimated that justices spend five times the number of hours on death penalty cases than non-‐‑death cases—and 20 times the number if the justice that was assigned to write the opinion.36
In 2013, the University of Denver Criminal Law Review published a study about the cost of Colorado’s death penalty, measuring that cost in terms of court days.37
The study found that death penalty cases that go to trial require
- six times more days in court than cases where LWOP is sought.38
- Pretrial hearings took an average of 85 days in death penalty prosecutions compared to 14 days in LWOP prosecutions;
- voir dire took 26 days and 1.5 days, respectively;
- the guilt phase took 19 days versus 8.2 days; and
- the sentencing phase took 21 days versus 0.78 days.39
- From start to finish, LWOP prosecutions that went to trial took an average 526 days to resolve, whereas death prosecutions that went to trial took an average 1,902 days, almost four years longer.40
- Death prosecutions that resulted in LWOP pleas before trial actually took one day longer in court than LWOP prosecutions that went to trial.41
In 2011, a comprehensive analysis of the costs of California’s death penalty was published by a Ninth Circuit Court of Appeals judge and Loyola Law School Los Angeles professor.
The study found that the state of California had spent more than $4 billion on the death penalty since it was reinstated in 1978, despite only 13 people being executed in the history of the state.42
The report estimates that since 1978,
- death penalty costs including both pre‑trial periods and trials totaled $1.94 billion;43
- automatic appeals and state habeas corpus petitions cost $925 million;44
- federal habeas corpus petitions cost $775 million;45
- and incarcerating inmates on death row cost $1 billion.46
- Those totals did not include an estimated $400 million required to build a new facility to house death row inmates, the estimated $1.2 billion that the new facility will cost to maintain for the first 20 years, or the estimated $775,250,000 cost of litigating the existing inmate’s federal habeas corpus petitions until resolution.47
6. North Carolina
In 2009, a Duke University professor published a report on the costs of the death penalty in North Carolina and the potential effects of abolishing it. The report focused on costs accrued during fiscal years 2005 and 2006 and concluded that the state could have saved almost $11 million each year by abolishing the death penalty.48
Accounting for inflation, this figure in 2016 represented a potential savings of approximately $13.5 million per year. Researchers estimated extra expenditures during the two-‐‑year period as follows:
- $13,180,385 in defense costs for capital cases during the trial phase,
- $224,640 in payments to jurors,
- $7,473,556 in post-conviction costs for capital cases,
- $594,216 for resentencing hearings, and
- $169,617 in prison system costs.49
- The report also noted the in-kind costs related to the death penalty, which the author asserted would be eliminated by abolition.50 He estimated a yearly savings of 345 days in court for trial, 10 percent of the resources of the Supreme Court and Appellate Defender’s Office, as well as “freeing up the equivalent of nine assistant prosecutors.”51
15 Memorandum from Dr. William Long on “Costs of the Oregon Death Penalty” to Richard Wolf, defense attorney, (May 5, 2006) (on file with author).
17 Id. Dr. Long examined the costs of incarceration, appeals provided by law (appellate, post-‐‑conviction review, and habeas corpus review), potential interlocutory appeals, remands, and the cost of executing someone after all appeals provided by law are exhausted. According to Long, “[t]he empirical data is readily available to permit one to conclude that, for the defendant who has not waived his appeals, the cost to execute a person in Oregon in the ‘best case’ scenario—i.e., when everything goes ‘smoothly,’—is almost twice that for a person who receives an LWOP sentence and waives his appeals. For one whose case is remanded, however, the costs can be four to five times as much as one who faces life imprisonment without the possibility of parole and has waived his appeals.” For a detailed explanation of Dr. Long’s data and calculations, see id.
18 Aliza B. Kaplan, Oregon’s Death Penalty, 17 LEWIS & CLARK L. REV. 1, 35 (2013) (discussing the lack of costs known to citizens and that Oregon lacks a procedure for collecting data on costs of the death penalty). 19 Id. at 36 (quoting telephone interview with Anita Nelson, DOC Government Efficiencies and Communications Office of May 14, 2012 and referencing the 2011–2013 DOC Budget). 20 Id. (citing email correspondence and a telephone interview with Billy J. Strehlow, Or. Office of Pub. Def. Servs., May 11 & 14, 2012). These amounts are based on the average cost of the 232 adult trial level cases with an aggravated murder charge and final disposition between January 1, 2002, and December 31, 2011. Sixteen of these cases resulted in a death sentence. Id. This accounts for defense costs only, which include all costs related to attorney time, investigators, mitigation specialists, various experts, administrative work and assistance. This amount does not include any costs associated with the defendants’ automatic appeals to Oregon’s Supreme Court or appeals to the U.S. Supreme Court, as OPDS does not keep a record of those costs. Id. 21 Id. (citing Or. Dep’t of Justice, Time and Expenses by Matter Client 137680, Inception to May 16, 2012) (unpublished chart) (on file with the author). The average cost to fully prosecute a capital case or even a capital trial has never been recorded by DOJ. Email correspondence & telephone interview with Tony Green, Spokesperson, Or. Dep’t of Justice, to author (May 15, 2012) (on file with author). 22 Id. at 35 (noting that these are the only numbers that were made available to Kaplan during her study of Oregon’s death penalty).
23 COLLINS ET AL., supra note 14, at 3. 24 Id. at 4. 25 Id. 26 Id. at 5. 27 IDAHO LEGISLATURE OFFICE OF PERFORMANCE EVALUATIONS, FINANCIAL COSTS OF THE DEATH PENALTY, at iii (2014).
28 Id. at 31. 29 Id. at 20. 30 Id. 31 Id. at 32. 32 KAN. JUDICIAL COUNCIL DEATH PENALTY ADVISORY COMM., REPORT OF THE JUDICIAL COUNCIL DEATH PENALTY ADVISORY COMMITTEE 2 (2014). 33 Id. at 7. 34 Id. 35 Id. at 11. 36 Id. 37 Justin F. Marceau & Hollis A. Whitson, The Cost of Colorado’s Death Penalty, 3 U. DENV. CRIM. L. REV. 145, 145 (2013).
38 Id. at 153. 39 Id. 40 Id. at 154. 41 Id. at 157. 42 Arthur L. Alarcón & Paula M. Mitchell, Executing the Will of the Voters: A Roadmap to Mend or End the California Legislature’s Multi-‐‑Billion-‐‑Dollar Death Penalty Debacle, 44 LOY. L.A. L. REV. S41, S41 (2011). 43 Id. at S69. 44 Id. at S79. 45 Id. at S88. 46 Id. at S99. 47 Id. at S110.
by Chuck Marohn, Strong Towns
“We have become over-obsessed with the idea of growth. We are not exactly sure what we are growing toward, but we compensate for this shortcoming by accelerating.”
-Tomas Sedlacek in Economics of Good and Evil
My hometown of Brainerd, MN, is millions of dollars in debt. We’re one of the poorest cities in the state and are perpetually among the highest in unemployment. More of our budget comes from aid from the state than we raise locally through property taxes. We have untold obligations we cannot meet, from building repairs to road maintenance, and we’ve laid off our fire fighters and many of our police officers. Yet, despite our fragile and nearly desperate financial state, we are about to borrow another $10.7 million for a sewer and water expansion project we don’t really need. Why would we do such a thing?
The one word answer: growth.
This week I’m going to be offering a Strong Towns interpretation of the insights of Czech economic Tomas Sedlacek whose book, Economics of Good and Evil, I’ve spent a lot of time with over the past two weeks. Let’s just say that I’ve finally found an economist I can respect.
Speaking during the darkest days of the recent European economic crisis, Sedlacek argued that our economy is not depressed but is more correctly described as manic-depressive. The mania we collectively experience is both on the way up and the way down, although we only choose to treat the latter. The former we embrace.
During the good times, “we always wanted to grow just a little more than we otherwise could.” There was always a reason why, if a little bit of growth was good, more would be even better. It was very easy to justify various kinds of mischief — from annual deficits to artificially low interest rates — in order to wring just a little more growth out of the economy. This is true whether your goals were motivated by left wing thinking or right wing thinking.
Very consistent with the mindset of The Patron Saint of Strong Towns Thinking, Nassim Taleb, Sedlacek suggests that our economic policy of recent decades has been to sell stability in order to buy growth. This is what I alluded to in the Brainerd example I started this piece with. We’re already unstable, yet we’re prepared to commit half a generation of projected revenues for the slim chance that we are going to be able to experience some growth today. I’ve described this concept in some detail in the Growth Ponzi Scheme series.
These policies — nationwide reflecting down to the local level — have the effect of amplifying growth during the good years and then accelerating downturns in the difficult years. This is why an economy can grow really fast from 2001 through 2008 and then suddenly collapse. Graphically, here is how our current growth economy tends to perform.
I’ll pause here and note that we collectively call the period between 2001 and 2008 a housing bubble. From 2008 until 2010 we saw that bubble burst. Now housing is back to 2008 levels, but do we have another bubble? Of course not. We call 2010 to 2016 a housing recovery. An inflated sense of esteem is one of the criteria for the manic phase of a bi-polar disorder.
I want to contrast a growth economy with a resilient economy. The idea of a resilient economy is that we sacrifice some growth in order to gain stability. During the good years we would not grow quite as much and, in turn, during the bad years things would not decline so precipitously. Forgoing debt, buying insurance, fully funding your pensions and prioritizing maintenance are all ways to pursue a resilient strategy. Such an economy would perform more like this.
Let me contrast both of these approaches with a Strong Towns approach, embodied in Nassim Taleb’s concept of antifragility. An antifragile economy is one that gains from disorder. Such a system will experience growth during the good years, although not nearly as much as the growth economy or the resilient economy. However, the antifragile approach will continue to experience some success during the bad years. As it is stressed, it grows stronger. Here’s what that looks like.
Where does such a system exist? For cities, the antifragile approach is the traditional development pattern. It is the incremental way in which we built and matured cities for thousands of years all around the world. Flexible building forms, constantly maturing neighborhoods and incremental investments — cities that continually grow up, grow out and grow more intense — ensure that there are always positive ways to improve.
The antifragile approach does not outperform the growth economy or even the resilient economy during the good years. In times of extreme affluence such as America experienced after World War II, sticking to the antifragile approach — especially after two decades of depression and war — was not going to happen. Our natural human inclinations overrode our time tested wisdom. In many ways, I understand that.
What is harder to understand — and harder yet to forgive — is the way we accelerated our debt during those good years in order to grow just a little bit more. We traded stability for growth until now we find that we have neither.
“People say Greece is behind. It is actually the other way around. Greece is ahead. They just went bankrupt twenty years before everybody else.”
– Tomas Sedlacek
by Chuck Marohn, Strong Towns
There is a tragic paradox to the women’s movements of the past century, specifically when it comes to women in the workplace. What started out as liberation – the choice of whether or not to work and to have that labor valued and respected in the same way as a man – has evolved into something else. Today most women do not have a choice as to whether or not they work. Work is an economic necessity.
In a theoretical sense, women entering the workplace should have meant a number of positive things at the family level of finance. For a home that now had two breadwinners, it should have meant a higher standard of living. It should have provided the household with more capacity for leisure time. It should have given the other spouse the ability to work less or to choose a different job that perhaps was more fulfilling. In short, the sacrifice of extra labor should have provided the benefit of a better life for everyone.
It may have in the early years, but our insatiable lust for additional economic growth wore away those benefits. We’ve now reached a point where we have sucked all the productivity gains out of employing the other half of our workforce — as economists like to call women — and still we need more growth. To what end?
Czech economist Tomas Sedlacek, whose insights we are examining this week, observed the following in his book Economics of Good and Evil:
The United States could have devoted the technological development of the last twenty years to saving time. In other words, if the United States remained at the standard of living it had twenty years ago, and were to invest technological progress into free time, maintaining this standard would require 40 percent less work, or a three-day workweek.
Stated another way: Imagine how spartan and deprived your life was back in the 1990’s (not). If you were to have sacrificed and simply maintained that standard of living — house sizes, gadgets, automobiles, etc… — today it would only take three days of your labor each week to sustain that quality of life. So, if we measured success in terms of….say….leisure time instead of growth, the path we’ve been on the last two decades has resulted in a vastly reduced standard of living.
We don’t measure success in leisure time, however, which is actually an interesting observation when one stops to ponder it. Why do we work? Sedlacek puts forth some provocative challenges to the growth economy, such as an examination of the modern treatment of Sabbath. The Sabbath is a day of abstinence from work recognized by Jewish and Christian religions. It’s a time out. A day of rest. Not a day to work a few hours or get caught up on the yard.
Genesis describes God’s labor of creating the heavens and earth and all that is as taking six days. On the seventh day, God rests. God doesn’t rest because God needs to be back at the office Monday morning to create another universe. God rests because God is done.
As modern Americans, do we work for the weekend? Do we put in our toil and labor so that we can be done and then rest? Or do we, as modern economists who argue over the proper length of the work week put forth, need rest so that we can become more productive workers? Who serves whom?
The political right in this country often treats the growth economy as a religion, as if it in and of itself is a thing possessed with a higher morality. Growth is a good unto itself. This is why, in the wake of the financial crisis, some so-called conservatives had open discussions about the merits of the Beijing Consensus — a little state capitalism with some authoritarianism thrown in — if that is what was needed to get growth going again.
Again, do we have western democracy that can result in economic growth OR do we require economic growth in order to have western democracy? Which is the dependent and which is the independent variable for us?
The political left largely accepts the dogma of a growth economy but — like the One Ring in Tolkien’s trilogy — tries to wield the power for good. Instead of changing the system to function differently, there is a lot more power to be had in letting it churn and then reallocating the spoils. And, of course, let’s just take on huge amounts of debt if we have to — of course we do, people are in need, after all — in order to increase that (managed) growth.
The refreshing thing about Sedlacek is that, unlike his economist peers, who deny humanity and replace us with homo economicus, a totally rational being that cleanly fits their mathematical models, he starts with a deeper understanding of human motivation. We’re not the utility-maximizing entities that our economic models count on us to be. There’s a lot of good that comes from growth, but growth is not the only good. An economy based solely on growth is one that misses out on a lot, not to mention wreaks a lot of havoc.
This brings me to one last rhetorical question: What does the end look like? When the growth economy has provided everyone a house, two cars, clothes, food, two iphones, a driverless car and a robot maid, what then? Are we done? Does our model even contemplate a time when we have enough, or at least a time when our wants are insufficient to create a 3% annual rate of gdp growth?
Sadly, the answer is “no” and so tomorrow we will examine the problem caused by debt.
“If maximum growth is the imperative of our time, at any cost, then true rest and satisfaction are not possible.”
by Chuck Marohn, Strong Towns
“The debate on GDP growth frequently tends to be nonsensical. GDP growth can simply be influenced with the help of debt (and either through fiscal policy in the form of deficits or budget surpluses) or through the help of interest rates (monetary policy). So what sense do GDP growth statistics make in a situation with a several times larger deficit in its background? What sense does it make to measure riches if I have borrowed to acquire them?”
– Thomas Sedlacek in Economics of Good and Evil
Common consensus among our intellectual class is that debt doesn’t matter. Perhaps more precisely: concerns over debt are less important than concerns over growth. Paul Krugman, the living caricature of this mindset, writing in his book End This Depression Now, made the following argument in the introduction:
Every time I read some academic or opinion article discussing what we should be doing to prevent future financial crises—and I read many such articles—I get a bit impatient. Yes, it’s a worthy question, but since we have yet to recover from the last crisis, shouldn’t achieving recovery be our first priority?
He then goes on to lament that GDP growth, “is barely above its precrisis peak,” a clear sign that we are in a depression. Krugman has argued that more debt is a moral imperative — debt is good and nobody understands debt (except him) — that we’re not grasping the basic lessons of John Maynard Keynes when we contemplate policies of fiscal austerity.
When everyone suddenly decided that debt levels were too high, debtors were forced to spend less, but creditors weren’t willing to spend more, and the result has been a depression—not a Great Depression, but a depression all the same.
Czech economist Tomas Sedlacek, whose book Economics of Good and Evil we are discussing this week, calls our current growth economy “Bastard Keynesian”. He points to the story from Genesis of Joseph interpreting Pharaoh’s dream as the first macro-economic forecast, a forerunner of Keynesianism. In the story, Pharaoh has a dream of seven fat cows grazing who are then consumed by seven lean cows. In a subsequent dream, Pharaoh see seven heads of healthy grain devoured by seven thin and withered heads of grain. When none of Pharaoh’s magicians or wise men could adequately explain the meaning, Joseph was summoned. He told Pharaoh:
God has shown Pharaoh what he is about to do. Seven years of great abundance are coming throughout the land of Egypt, but seven years of famine will follow them. Then all the abundance in Egypt will be forgotten, and the famine will ravage the land. The abundance in the land will not be remembered, because the famine that follows it will be so severe.
Joseph then provided a way to deal with this crisis, one that would require prudence and sacrifice during the good years:
Let Pharaoh appoint commissioners over the land to take a fifth of the harvest of Egypt during the seven years of abundance. They should collect all the food of these good years that are coming and store up the grain under the authority of Pharaoh, to be kept in the cities for food. This food should be held in reserve for the country, to be used during the seven years of famine that will come upon Egypt, so that the country may not be ruined by the famine.”
The is the essence of Keynes. During the good years we save so that, during the difficult years, we can spend. One of his great insights is the paradox of thrift: when everyone cuts back on spending, as tends to happen during economic downturns, it only makes the crisis worse. In response, Keynes suggests that government can — and should, like Pharaoh — step in to build up reserves during good times so that, in those inevitable downturns, it can fill the gap and prevent unnecessary suffering.
What happens when Pharaoh wants more growth during the good years — because growth is a good unto itself and more is always better/necessary — and also wants to be able to counteract downturn during the lean years? That is where our growth economy operates now, which is why Sedlacek calls it Bastard Keynesian. It takes one half — spending during downturns — while doing little in the way of prudence to build up reserves during the good years.
This has turned our growth economy into a debt economy. We cheer when the economy grows by 3% in a year even when our collective debt levels have risen by more than 3% of gdp. Nobody who borrows $10,000 believes themselves to be $10,000 richer, yet we manage our growth economy as if this is an actual reality.
In a manner that mainstream American economic thought reflexively laughs at — think Ron Paul, the gold standard, and the original Tea Party emphasis on balanced budgets — Sedlacek describes the way in which interest rates allow money to travel through time. From Economics of Good and Evil (emphasis mine):
Money can also travel through time. This time-travel of money is possible precisely because of interest. Because money is an abstract construct, it is not bound by matter, space, or even time. All you need is a word, possibly written, or even a verbal promise, “Start it, I’ll pay it,” and you can start to build a skyscraper in Dubai.
Understandably, banknotes and coins cannot travel through time. But they are only symbols, a materialization, an embodiment or incarnation of that energy. Due to this characteristic, we can energy-strip the future to the benefit of the present. Debt can transfer energy from the future to the present.
On the other hand, saving can accumulate energy from the past and send it to the present. Fiscal and monetary policy is no different than managing this energy.
We will soon have experienced a decade of interest rates at or near zero. Understand what that is. It is a desperate attempt to energy strip as much of our future productivity as possible for the benefit of today. Negative interest rates, as are now being contemplated, would allow us to reach just a little bit further into the future. We are buying growth and the price we pay is our future stability.
Let me put some numbers to this abstract notion of lost stability. Back in 2013, we began to suffer through the horrors of the sequester. The sequester is an $85 billion reduction in spending on a $3.5 trillion federal budget, something Paul Krugman called a Doomsday Machine, but we can well imagine Pharaoh calling a prudent move. Nonetheless, consider that, with our unprecedentedly low interest rates, over the past decade we’ve been able to expand our national debt to nearly $19 trillion without increasing our annual debt service costs. At this point, for every 1% rise in interest rates, we are facing an additional $190 billion in interest expense — more than double the Doomsday Machine of the sequester — just to pay interest on our past spending.
How much stability do we have if our policymakers can’t raise interest rates without exploding the budget? Ah, but Chuck, inflation is low. Yes, but if you Krugmanites are successful in your theory — and how can you not be if the theory is to print and borrow endless sums of money until we get acceptable levels of spending back — then inflation will rise and you will be forced to pick your cyanide. Destroy people’s lives — especially the poor — through relentlessly rising prices or blow up the growth economy and suffer through the collapse. My guess is we’ll try to stick it to the poor, but really, all bets should be off at this point.
As Sedlacek contends: “It’s not a question of austerity: yes or no, but when.”
by Chuck Marohn, Strong Towns
If we believe that man is evil in his nature, therefore that a person himself is dog eat dog (animal), then the hard hand of a ruler is called for. If we believe that people in and of themselves, in their nature, gravitate toward good, then it is possible to loosen up the reins and live in a society that is more laissez-faire.
– Tomas Sedlacek in Economics of Good and Evil
This week the latest episode of Dan Carlin’s Hardcore History was released. At one point, Dan quotes Lt. Col. Dave Grossman, from the book On Killing: The Psychological Cost of Learning to Kill in War and Society, in saying that it is the “proximity to the victim that determines how resistant to killing people tend to be.”
It is a rather obvious, yet profound, point that is made in a more humorous way by the comedian Louis CK as he discusses the difference between how he reacts to nameless, faceless person in an adjacent car and how he would treat a person standing next to him in an elevator. In the separation of the car, he spews hate, but in the elevator he is far more tolerant. When it comes to human morality, proximity matters.
Adam Smith is most well known today for The Wealth of Nations and, in that book, his single (perhaps offhanded) mention of the Invisible Hand is the most famous passage. To say we have literally built our entire growth economy around this notion — that a market where everyone works in their own selfish, self interest will magically produce optimum outcomes for society — would not be an overstatement. Here is that quote, as it’s commonly presented:
It is not from the benevolence of the butcher, the brewer, or the baker, that we expect our dinner, but from their regard to their own interest.
…he intends only his own gain, and he is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention. Nor is it always the worse for the society that it was no part of it. By pursuing his own interest he frequently promotes that of the society more effectually than when he really intends to promote it.
Interestingly, as listeners to our podcast heard last year when I interviewed Econtalk host Russ Roberts on his book How Adam Smith Can Change Your Life, Smith’s primary obsession was not with economics. It was with morals. His first book — The Theory of Moral Sentiments — is a fascinating prism through which to view The Wealth of Nations.
If we listen to the leading voices of today’s economics profession, we are told that we are consumers, a rational, utility-maximizing creature of their models that has taken to being called Homo Economicus. Yet, Adam Smith — whose invisible hand has been used to justify all manner of private vice in the name of the common good — clearly recognized that people are motivated by far more than their own rational self interest. In The Theory of Moral Sentiments, he wrote:
Regard to our own private happiness and interest, too, appear upon many occasions very laudable principles of action.
Kindness is the parent of kindness; and if to be beloved by our brethren be the great object of our ambition, the surest way of obtaining it is, by our conduct to show that we really love them.
The Czech economist Tomas Sedlacek argues that there is an invisible hand, but that it is not constrained to simply the realm of the market. It crosses into the realm of the social, the psychological and the historical. It compels us to act and react as a society in certain ways which often are not, in a purely economic sense, wholly rational. From Economics of Good and Evil:
For small acts (hunting together, work in a factory), small love is enough: Camaraderie. For great acts, however, great love is necessary, real love: Friendship. Friendship that eludes the economic understanding of quid pro quo. Friendship gives. One friend gives (fully) for the other. That is friendship for life and death, never for profit and personal gain.
In times past, the butcher, the brewer and the baker — particularly in the age of Adam Smith — would all have been people we personally knew. They lived up the street. Our kids would have played with their kids. We would likely have gone to the same church, received the same moral teachings and been part of the same circle of peers. To say our transactions were purely market-based is missing a lot. I care about the butcher, the brewer and the baker, not in some abstract way that I generally care for humanity, but in a very real way because I know them.
Sedlacek shares this insight as well and compares love — yes, I assure you, he is an economist — to a force that behaves differently based on proximity.
It could almost be said that “small love” is a kind of gravitational force which, while weak (and almost imperceptible in comparison with other forces), is similar to charity in that it is a weak love, difficult to detect in comparison with other loves (which are intense and concentrated on one or a couple of people). But just as with short but strong (nuclear) forces and distant and weak (gravitational) forces, charitas holds together large units, in our case society—in a similar way to how gravity keeps together objects at large distances but is not as “strong” as nuclear or electric forces.
In the name of maximum growth, we have moved the morality of market transactions in our society — in pursuit of maximum efficiency — from the realm of near and strong to that of distant and weak. So that my meat is (theoretically) the highest quality at the lowest price, I now bypass the butcher — he has long been put out of business — and instead buy it from a national retailer. The clerk there does not know the shareholders who own the company, nor do they know the clerk. Or me. None of us know the actual people who cared for the animal, slaughtered the animal, processed the animal or transported the meat to the store. Nearly all moral dimension in this transaction have been removed leaving me, the clerk and the shareholder owners of the company free to treat each other with the least amount of social connection possible.
Yet, society still operates with an amazing degree of individual decency. It is still news when someone acts terribly because it is a rare occurrence. That should be a refreshing observation and should make us less fearful of a world where we sacrifice growth for stability, where we focus less on maximizing efficiency in our markets and more on building the resilience of our cities, towns and neighborhoods. Unfortunately, that is not the case, and so we’ve shown, in the face of all these distant and weak moral connections, an inclination to turn our power to do good over to others with the hopes that they will enforce a better world.
Again, from Sedlacek:
The question of whether man is good or evil is a key question for the social sciences. “Regulation” will develop from it. If man is evil by nature, then it is necessary to force him toward good (in the context and under the pretext of “social good”) and limit his freedom. If it is a dog-eat-dog world, as Hobbes believes, we need a strong state, a powerful Leviathan that forces men toward (men’s unnatural) good. But if on the other hand human nature (or something of the ontological core of man’s being, his very “I”) is good, then more laissez-faire is possible. Man can be left alone, because human nature will automatically have a tendency to steer him toward good.
State interventions, regulation, and limits to freedom need be applied only where man as part of a whole is not sufficiently (collectively) rational, where spontaneous social coordination works poorly or where forced coordination is capable of ensuring better results (in the case of externalities, for example). This is one of the key questions for economics: Can the free will of thousands of individuals be relied on, or does society need coordination from above?
Are we a society of villains or of neighbors?
I believe we are a society of people inclined to be neighbors who have adopted an economic structure predicated on our villainy. By shifting our markets from interactions that are predominantly distant and socially weak to those that are near and socially strong, we can start to move beyond our fragile dependence on growth and debt to a stronger America based on strong cities, towns and neighborhoods. Tomorrow I’ll finalize this series by showing what that could look like.
by Chuck Marohn, Strong Towns
“In recent decades, our debt has risen not out of shortage but out of surplus, excessiveness. Our society is not suffering from famine, but it must solve another problem—how to host a meal for someone who is full.”
-Tomas Sedlacek in Economics of Good and Evil
A couple years ago I put together this Strong versus Fragile graphic as a way to help people think about the nature of productive cities. In the rain forest, you have a complex, adaptive system that has emerged in a way that is, as a byproduct of how it emerged, highly resilient and adaptable. The corn field, in contrast, is a system based on efficiency, constantly increasing the amount of output for a given unit of input. One hail storm, a few weeks of drought or a swarm of locusts and it’s gone.
We might think we prefer the human equivalent of the rain forest, but do we?
Let’s pretend we were made king/queen of a portion of a rain forest and, magically, we had the authority and resources we needed to right the wrongs, correct the deficiencies, that we saw in the world around us. What would we do?
As we delved into the situation, we would quickly realize that the process of emerging, of developing a resilient equilibrium, is a brutal one. In the rain forest, one creature’s cruel death is the essential nutrients for many others. A tree grows strong and creates an ecosystem of winners and losers. Another tree falls and an entirely different system of winners and losers takes over. Would any of us have the wisdom to decide which winners are best? Which is the optimum path for that moment in time?
Or would we, as ecologists suggest, let well enough alone so that the infinitely complex interactions that give the rain forest is adaptive resiliency can run their course?
Since World War II, Americans have seemingly had the power and the resources to right the wrongs, correct the deficiencies, in the world around us. Whether the wrongs you’ve identified emanate from concerns of the political left or the political right, there have been enough resources available to move ahead as far as political consensus would allow. There is something noble in this — who doesn’t want the world to be a better place — but also something dangerous and destructive. Just as with meddling in the rain forest ecosystem, how do we know what is actually the best course of action? How do we know what set of winners is optimum?
Enter modern economists. If there is one thing American society has been able to achieve broad consensus on it is that more growth provides us with more resources and, whatever problems we are actively trying to solve, more resources are really helpful. The paradox of our economy, as we’ve discussed this week, is that we create more collective resources — growth in GDP — by individually consuming more resources. This system worked for a long time — we leveraged individual appetites to accelerate collective growth — but now, as Czech economist Tomas Sedlacek suggests, we’ve reached the point where individuals are unable, or unwilling, to consume enough to keep it going. From the Economics of Good and Evil:
Economics mainly counts on situations when a person is unsaturated and would like to consume more (and also make more money). What would economics look like without this? Our resources have grown so much that we can allow much more than full satiation. Economics is the study of “allocation of scarce resources,” but what happens when they are in abundance?
Today, it feels like we’re stuck. We’ve so many problems to solve. With the way we go about solving problems — largely top/down, centrally directed efforts — we need more resources. Yet, we struggle to get our economy to grow because, individually, we can’t or won’t consume at the levels needed to generate those collective resources. Is this the ultimate irony? Can we only satisfy our needs by increasing our neediness?
For reasons that are not important to this conversation, I’ve spent a great deal of time thinking about the business model of a newspaper, and I’d like to use those insights to contrast our current approach to what was and could be again. When we look at a local, family-owned newspaper, we see an endeavor that is the ultimate invisible hand kind of undertaking. It is a business proposition that, if done well, is also a great service to the community. I’ve known a number of local news publishers who make a good living reporting on the local comings and goings, breaking the occasional big story, crying with families when they have tragedy and celebrating success when it is found. In time they often come to own a building, maybe some equipment and can someday pass on the entire enterprise — with some modest gain — to a new generation. Few find riches but many have experienced enough success to make them among the privileged and powerful within their communities.
Now take the modern corporate media company. I won’t suggest that these endeavors don’t also struggle to be a service to the community, but the risk and reward are much different. It isn’t adequate for a publicly traded company to simply do good work and make a modest profit year after year. The dictates of shareholders — rightfully, as is our system — are that profits must be maximized, to increase year after year. New efficiencies must be found. New opportunities must be exploited. Capital must be leveraged by a leadership team required to return value to shareholders. Pretty soon the paper lays off senior reporters — the ones with sources and community knowledge — in a cost cutting measure. Then the team that actually designs the paper — the ones who grasp local nuance and culture — are let go so assembly can be outsourced to corporate offices on the other side of the country. Pretty soon the software used to lay out the paper is standardized to the low bidder, even though it doesn’t really work. And on and on and on.
The product here — a local newspaper — is very similar between these two, but the motives and incentives in the underlying production are vastly different. So, would our lives be worse off if our local news was brought to us by a locally-owned newspaper rather than a publicly-traded corporation? It’s hard to argue that it would. Yet, if it were locally produced, that paper would be free of the continuous need to increase efficiency, the constant pressure to increase profits and expand margins above all else. Sure, a good business owner would still do some of that, but as part of the community they would also balance those urges with the other competing interests, many of them social and without direct economic payoff. And, if 3% year-to-year growth didn’t happen, that too would be okay.
We cannot have a centralized, corporate-driven, debt economy without continuous growth, but we cannot sustain continuous growth. We therefore need a different model, one that doesn’t require continuous growth. That is only going to be found at the local level, by localizing those endeavors that can be localized. As a matter of public policy, we should be doing everything we can to end the subsidies and incentives that promote the big/centralized — banks, corporations, government — and focus our efforts on seeding the small/localized wherever possible. More chaotic but smart and less orderly but dumb. We can have growth, but not be a slave to it.
If we do this, I believe we’ll have an economic system that is more moral, more just. From Economics of Good and Evil:
In our constant desire to have more and more, we have sacrificed the pleasantness of labor. We want too much and so we work too much. We are by far the richest civilization that has ever existed, but we are just as far from the word “enough” or from satisfaction, if not further, than at any time in the distinct “primitive” past. In one sentence: If we ourselves did not have to constantly increase GDP and productivity at all costs, we would not have to also constantly overwork ourselves in “the sweat of our faces.”
I’m going to return to the rain forest because I suggested earlier that locally complex systems are brutal, that their resiliency is the byproduct of frequent failure and adaptation. How can a system like that be more just? How can we call something like that moral? There are many of you eager to vote for your brand of tyrant for president, someone who will enforce your version of righteousness and morality on a country badly needing both, often because you don’t trust your neighbors to do the right thing.
The rain forest is brutal, yes, but nature is filled with countless examples of altruism. From plants that interlock roots to share water during drought to birds that warn others of danger. Humans are the most social of all species. We’re wired to work together. Let’s stop trying to bypass that wiring.
One of the most positive things about recent reflections on Urban Renewal policies is the acknowledgement that the African American communities that were bulldozed may have been poor, but they were also vibrant. They were full of strong social connections, the kind that makes a place resilient. The great injustice that was done in these places had economic ramifications, for sure, but the worst aspect was social. We tore apart the complex fabric of the community. That we would now out of fear resist the restoration of this fabric, in poor and affluent neighborhoods alike, defies all that we have learned. Are we still so lacking in humility?
I end this series with one last excerpt from The Economics of Good and Evil. This a quote from John Maynard Keynes on what life could be like in an economy where growth is good, but not the only good, where people are more than consumers, more than some theoretical Homo Economicus, where our fate is not directed by economists or central planners but by our relationships with each other:
When the accumulation of wealth is no longer of high social importance, there will be great changes in the code of morals. We shall be able to rid ourselves of many of the pseudo-moral principles which have hag-ridden us for two hundred years, by which we have exalted some of the most distasteful of human qualities into the position of the highest virtues.
I see us free, therefore, to return to some of the most sure and certain principles of religion and traditional virtue—that avarice is a vice, that the exaction of usury is a misdemeanor, and the love of money is detestable, that those walk most truly in the paths of virtue and sane wisdom who take least thought for the morrow.
We shall once more value ends above means and prefer the good to the useful. We shall honour those who can teach us how to pluck the hour and the day virtuously and well, the delightful people who are capable of taking direct enjoyment in things, the lilies of the field who toil not, neither do they spin.
Thank you for allowing me to share these thoughts with you over the past few days and for all the encouragement with this intellectual exploration.