Plea Bargaining and the Death Penalty: An Exploratory Study

By Ehrhard, Susan | Justice System Journal, September 1, 2008 | Go to article overview

Plea Bargaining and the Death Penalty: An Exploratory Study


Ehrhard, Susan, Justice System Journal


One of the most troubling criticisms of plea bargaining is that it is coercive, insofar as prosecutors may use their discretion to induce defendants to forfeit their trial rights out of fear of receiving a harsher sentence if they do not plead guilty. Inducements and concerns surrounding guilty pleas are especially important in murder cases carrying a possible sentence of death, as prosecutors may threaten the death penalty to encourage defendants to plead guilty. This issue raises ethical and legal concerns and carries significant implications regarding the human and financial costs of capital punishment, yet empirical research addressing the use of the death penalty as leverage is largely lacking. Using data from interviews with defense attorneys and prosecutors, this article takes a first step in exploring prosecutors' and defense attorneys' experiences with, and perceptions of, the plea-bargaining process in death-eligible cases.

The role of plea bargaining in the criminal-justice system has been the subject of much scholarly research (e.g., Eisenstein and Jacob, 1977; Emmelman, 1996; Heumann, 1977), and the advantages and disadvantages of this practice have been widely debated (e.g., Alschuler, 1981; Easterbrook, 1992). Over 90 percent of defendants in felony cases forgo their right to trial, instead pleading guilty, many after accepting a plea bargain (Pastore and Maguire, 2003). In exchange for giving up their rights, defendants are sometimes rewarded with more lenient sentences than they would receive had they pursued a trial and been found guilty (Alschuler, 1981). Plea bargaining is thought to provide benefits of cost, efficiency, and certainty to both defense attorneys and prosecutors (Bibas, 2003), so that it fits the crime-control model of the criminal-justice process in which a premium is placed on speed and finality in the disposition of criminal cases (see Packer, 1968). On the other hand, reflecting the due-process model, which emphasizes the importance of "formal, adjudicative, adversary fact-finding processes" (Packer, 1968:163), plea bargaining has been criticized on grounds that it unfairly causes criminal defendants to waive their Fifth, Sixth, and Fourteenth Amendment rights (see, e.g., Halberstam, 1982).

One of the most troublesome criticisms of plea bargaining is that it is coercive, with prosecutors using their discretion to induce defendants to forfeit their rights out of fear of being punished with additional charges and a harsher sentence if they do not plead guilty. The Supreme Court condoned this practice in Bordenkircher v. Hayes (1978) and has said that guilty pleas induced out of fear of the death penalty or because of prosecutors' threats may be voluntary and free of coercion in a constitutional sense, and that the decision to enter a plea is not coerced so long as a defendant can make a voluntary and intelligent choice among alternatives (see Bordenkircher v. Hayes, 1978; Brady v. United States, 1970; North Carolina v. Alford, 1970; United States v. Jackson, 1968). However, this does not necessarily mean rhat coercion is absent from the process of plea bargaining. Questions about its propriety remain and are particularly significant when charges involve a potential sentence of death, which is different in degree and kind from lesser punishments (Gregg v. Georgia, 1976). Indeed, Littrell (1979) argues that structural coercion is embedded in the organization of the prosecution by the making of offers that cannot be refused. The concern is that the threat of death will drive defendants who are not death-worthy, and may even be innocent, to plead guilty out of fear of possibly being executed (Gross, 1996).

The incentives for prosecutors, defense attorneys, and defendants to plea bargain in death-eligible cases are magnified, given the punishment at stake and the cost of a trial to determine rhat punishment. Defendants and defense attorneys may not ordinarily consider pleading to a sentence of life or life without parole (LWOP), but, when faced with the possibility of a death penalty, they may be inclined to accept pleas that would otherwise be rejected if the difference between a plea bargain and a trial conviction were a matter of years and not a matter of life and death. …

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