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Will the death penalty's cost change the debate over its use?

With an official moratorium on hold, death penalty opponents are looking to capital punishment's cost as a way to get executions banned in North Carolina. And they've got a surprising -- if differently motivated -- ally.

It's not a new strategy: several states, including Tennessee, Kansas and other conservative strongholds, have attempted to gauge the cost of executions. But N.C. advocates are hoping an appeal to the pocketbook will sway legislators and voters here, particularly after several years of failed attempts to pass a moratorium on capital punishment.

"It potentially has a great deal of value to the people of North Carolina, so that they can reflect upon what ... this decision to have a death penalty really costs our state," says Mark Kleinschmidt, executive director of Fair Trial Initiative, a Durham non-profit that works on capital cases and opposes the executions.

Kleinschmidt and other advocates found an unlikely ally last winter in State Auditor Les Merritt, who asked his legal counsel to investigate the cost of a death sentence versus the cost of life imprisonment.

Merritt, a Republican and a Certified Public Accountant, wasn't looking to change policy -- he was hoping to assess how taxpayers' resources are used. Staff quickly found that was easier said than done. "It would definitely take a more in-depth look, even an audit, to determine the cost," says Chris Mears, spokesman for the auditor's office.

Since audits are generally performed at Merritt's discretion or at the request of lawmakers, Democrats introduced a bill to require his office to study costs. It languished in committee, and, even when rolled into a larger study bill, failed to pass. But don't count an audit out yet.

Even capital punishment supporters, while acknowledging a price tag will be more one weapon in opponents' arsenal, say a study wouldn't be a bad idea.

Peg Dorer, director of the N.C. Conference of District Attorneys, says such costs should be audited. "It would certainly be used, just like everything else is. The people who are opposed to the death penalty use every argument they can find," Dorer says. "[But] I don't know that having an audit of it would make a lot of difference."

Dorer says Constitutional concerns probably would bar lawmakers from reducing costs involved in capital prosecution and defense. "The district attorneys truly believe that if you're going to have a debate about the death penalty, the issue is whether you think it's a moral thing or not," she says. "The cost -- it's not irrelevant, but you can work the numbers any way you like them."

A 1993 Duke University study found the death penalty costs North Carolina $2.16 million more per execution than the a non-death penalty murder case with a sentence of life imprisonment. N.C. prosecutors found fault with some of methods used to calculate data, Dorer says.

Kansas in December 2003 reported that death penalty cases could cost that state about 70 percent more than others. The estimated average cost of a death penalty was $1.2 million, compared to about $740,000 for non-death penalty cases. The report's authors, however, cautioned that much of the data was based on estimates. Kansas is one of 38 states with the death penalty, but it hasn't executed anyone since 1965.

North Carolina's death row is more active, but even this state hasn't executed anyone since August 18, 2006, when Samuel Flippen of Winston-Salem was put to death for the murder of his two-year-old stepdaughter, Britnie Nichol Hutton. Since the state medical board decreed doctors could be sanctioned for participating in executions, North Carolina has had a de facto moratorium.

Now 166 people await execution -- one inmate has been on death row since 1985.

Kleinschmidt doesn't see auditing the costs involved in these people's death sentences as a surreptitious way to end capital punishment. He says the acquittal of former death row inmate Alan Gell, among other high-profile cases, as well as studies indicating racial bias in application of the death penalty, mean all facets of its use should be studied. (A study released this month from Ohio State University found that blacks convicted of killing whites are not only more likely than nonwhites to receive a death sentence, they are also more likely to be put to death.)

"It's interesting to me when I hear people say that's a back door way," Kleinschmidt says. "All this is, is pulling back the curtain and showing everyone what's back there ... It's not about wishy-washy liberalism. It's about facts."

Mears says Merritt isn't auditing capital punishment now. Asked if something that Merritt hopes to look into, Mears says he didn't know, but said that's not something the office normally discloses until an audit's release. "Sometimes it's hard to get certain information if they know that they're going to be under [scrutiny]," Mears says.

Of course, a victim's family likely won't care much about the cost of a death sentence, regardless of whether they want their loved one's killer executed. "It probably is relatively expensive, but is it too expensive? That's almost a moral judgment in itself," Dorer says.

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