Plea Bargains and the Death Penalty: Separating Fact from Fiction
Death penalty proponents often argue that capital punishment is a bargaining chip prosecutors need in order to secure life without parole pleas. While this might make sense on its face, a look at the facts shows there is no real evidence for this position. What we do know is that this tactic reveals profound ethical dilemmas as the threat of a death sentence can be used coercively, only increasing the risk of wrongful convictions.
The Death Penalty Is Not Necessary to Secure Life without Parole Pleas
• Many of the states that are best at securing life sentences do not have the death penalty—in fact, three of the five states with the highest percentage of Life Without Parole prisoners do not have a death penalty.
• There is no correlation between state’s possessing the death penalty and their ability to get life sentences. The best available studies show that, while the presence of the death penalty might make District Attorneys drive harder bargains, there was no impact on the overall probability of a plea deal.
• There is good reason to believe that the death penalty makes plea bargains less likely—as Northwestern University Economics Professor Jeff Ely puts it, “The threat of the death penalty makes defendants more willing to accept a given plea bargain offer. But a tough-on-crime DA takes up the slack by making tougher offers. What is the net effect…the threat of the death penalty results in fewer plea bargains and more cases going to trial.”
Using the Death Penalty as Leverage Can Have Alarming Consequences
• Using the threat of the death penalty to secure pleas forces many defendants into giving up their right to a trial. Defendants facing a death sentence who don't have access to competent legal representation often give up their constitutionally guaranteed due process rights to a quick and fair trial out of fear of ending up with a worse punishment.
• The threat of execution can be enough to scare people into taking responsibility for crimes they did not commit, especially since many of these confessions come at the end of grueling interrogations in which police are permitted to lie to suspects about the evidence, or lack thereof, gathered against them. DNA evidence has exonerated a number of prisoners who are serving life sentences on the basis of these coerced pleas. As recently as 2009, the Governor of Nebraska had to release 6 prisoners, five of whom had falsely confessed, for a rape and murder that occurred more than twenty years earlier. Peoples’ lives are ruined in this process, even if they are released. Richard Danziger, a Texas man put in jail because of an associates’ death penalty-inspired plea, suffered severe brain damage as a result of beatings he received in prison for a rape he had nothing to do with.
Data about Plea Deals and Their Relationship to the Death Penalty is Lacking
• Data collection is cost prohibitive—a RAND corporation study showed that even collecting the information necessary to compare plea bargaining rates in death penalty and non-death penalty states requires a resource commitment that few seem willing to match.
• Therefore, the data used to analyze plea bargaining rates is often old and unrepresentative. Proponents have relied on data sets from the late 1980s and sample sizes too small to justify drawing extensive conclusions. The most comprehensive studies have found no connection between the death penalty and the frequency of pleas.