No. CRO7-0241859 STATE OF CONNECTICUT ) SUPERIOR COURT v. 7 NEW HAVEN JUDICIAL DISTRICT STEVEN HAYES ) OCTOBER 14, 2010 MEMORANDUM OF DECISION RE STATE’S MOTION IN LIMINE On October 5, 2010, the jury in the above-entitled case delivered a verdict convicting the defendant, Steven Hayes, of six counts of capital felony. Conn, Gen, Stat. § 53a-54b. The penalty phase of the case will commence on October 18, 2010 On October 15, 2010, the defendant filed a Notice of Intent to Produce Expert Testimony in Penalty Phase (“Notice”). The Notice advises the court that the defendant “intends to introduce expert testimony and evidence in regard to the following issues: (1) The cost of imposing and carrying out a death sentence far exceeds the cost of a sentence of life without the possibility of release ... [and] (2) A violence risk assessment of Steven Hayes.” On the same date, the State filed the above-entitled Motion in Limine moving “to exclude evidence pertaining to the costs of execution in the penalty phase.” The Motion in Limine thus addresses part (I) of the defendant's Notice but not part (2). Consequently, only part (1) of the Notice is addressed in this opinion. ‘The Motion was argued on October 13, 2010. Following argument, on October 14, 2010, the defendant filed, as an elaboration of his offer of proof, a written “Cost Comparison” prepared by his expert, James Austin, ‘The expert testimony proffered in part (1) of the Notice is that, “The cost of imposing andcarrying out a death sentence far exceeds the cost of a sentence of life without the possibility of release.” The proffered Cost Comparison of Dr. Austin offers both general and specific opinions. Dr. Austin’s general opinion is that there are “higher expenses associated with seeking the death penalty as opposed to securing a natural life imprisonment sentence.” (Cost Comparison, at 4.) Given Hayes’ current age of 47, Dr. Austin offers a further opinion that Hayes has a life expectancy of 23 years and that, consequently, “a natural life imprisonment sentence for Mr. Hayes will be considerably less expensive than seeking the death penalty.” (Id, at 8,) ‘These are plausible legislative arguments (albeit ones on which there may be differing opinions). But is a cost comparison such as this relevant evidence for the jury in the penalty phase of a capital case? A substantial body of judicial opinion has answered this question in the negative. As mentioned, there can be differing opinions as to which alternative is the more costly. The courts have unanimously ruled that economic arguments along these lines are inadmissible regardless of whether they are made by prosecutors or defense counsel. Thhus, in a much-cited case, it has been held “clearly improper” for a prosecutor “to argue that death should be imposed because it is cheaper than life imprisonment.” Brooks v. Kemp, 762 F.24 1383, 1412 (11" Cir. 1985) (en bane), vacated on other grounds, 478 U.S. 1016 (1986). The reason is that, “cost is not accepted as a legitimate justification for the death penalty.” Id, See State v. Clark, 772 P.2d 322, 334 (NM), cert. denied, 493 U.S. 923 (1989), and authorities cited therein. Similarly, numerous courts have held that defendants in capital cases may not submit expert evidence opining that incarceration would be less expensive than execution. State v. Kayer, 984 P.2d 31, 48 (Ariz. 1999), cert. denied, 528 U.S. 1196 (2000); People v. Thompson,753 P.2d 37, 65 (Cal.), cert. denied, 488 U.S. 960 (1988); People v. Harlan, 8 P.3d 448, 507 (Colo. 2000), cert. denied, 532 U.S. 979 (2001); Johnson v, State, 660 So.2d 637 (Fla. 1995). cert. denied, 517 U.S. 1159 (1996); State v. Clark, 851 So.2d 1055, 1083 (La. 2003), cert. denied, 540 U.S. 1190 (2004); State v. Brown, 902 $.W.2d 278, 295 (Mo.), cert, denied, 516 USS. 1031 (1995); Smallwood v. State, 907 P.2d 217, 233 (Okla. 1995), cert, denied, 519 U.S. 980 (1996); State v. Williams, 828 P.2d 1006, 1022 (Or.), cert. denied, 506 U.S. 858 (1992); State v. Norton, 675 P.2d 577, 588 (Utah 1983), cert. denied, 466 U.S. 942 (1984). The fact (assuming, for purposes of argument, that itis a fact) that the death penalty is more expensive than life imprisonment is not a mitigating factor for two separate reasons. First, the cases universally hold that this asserted fact does not fit the statutory definition of a “mitigating factor.” In Connecticut, a “mitigating factor” must be “a particular factor concerning the defendant's character, background or history, or the nature and circumstances of the crime.” Conn. Gen. Stat. § 53a-46a(d). Second, as the Florida Supreme Court has explained, this asserted fact is not a “legal argument[] but rather political debate that in essence attack{s] the propriety of the death penalty itself. Once the legislature has resolved to create a death penalty that has survived constitutional challenge, it is not the place of this or any court to permit counsel to question the ... economic wisdom of the enactment.” Johnson v. State, supra, 660 So.2d, at 646. The case law is clear that economic evidence may not be submitted to the jury either for or against the general imposition of the death penalty. Economic arguments tailored to specific individuals are not only irrelevant but perverse. The cost of life imprisonment will obviously be ‘greater for a younger defendant than an older defendant because the younger defendant will havethe longer life expectancy of the two. From an economic point of view, it will thus be more expensive to incarcerate the younger defendant for the remainder of his life and - in strict economic terms - more cost-effective to execute him. This will be the case even if the younger defendant has just turned eighteen and has no criminal record, and the older defendant has spent his years acquiring a lengthy criminal record, This argument plainly makes no moral sense. Such arguments, if allowed, would also give the State perverse economic incentives, such as paying public defenders lower salaries so as to make the alternative of execution more economically attractive, Economic arguments can be valuable in some cases, but they are not relevant here. A jury in the penalty phase of a capital case is charged with the task of using reasoned moral judgment, not counting dollars and cents. Although a defendant fighting for his life should be given great latitude in presenting mitigating evidence, the evidence offered here is not legally admissible. ‘The Motion in Limine is granted. Jon @Blue Judge of the Superior Court