Empirical research addressing the use of the death penalty as leverage in plea negotiations is virtually nonexistent. This is particularly surprising given the fact that both plea bargaining and capital punishment have been the focus of much scholarly attention. The U.S. Supreme Court has explicitly approved guilty pleas induced out of fear of the death penalty, yet the impact of the threat of the death penalty on the likelihood of parties reaching a plea agreement is far from obvious. On the one hand, prosecutors, defense attorneys, and defendants may have especially strong incentives to plea bargain in death-eligible cases. On the other hand, many of these advantages may be offset by forces pushing against compromise on both sides of the aisle precisely because the death penalty is an option, so the role the death penalty is playing in plea negotiations in the aggregate remains ambiguous. To date, the only empirical study to explore this issue concluded that the threat of capital punishment does not impact the likelihood of reaching a plea agreement. Unfortunately the study suffers from several limitations that may have ultimately masked any true effect that the death penalty has on plea-bargaining rates. This Article reexamines this question using an originally constructed data set of recent capital charging-and-sentencing decisions in Georgia (1993-2000) that is able to avoid many of the shortcomings of the sparse prior research. The results provide strong evidence that the threat of the death penalty has a robust causal effect on the likelihood of a plea agreement--the threat of the death penalty increases the probability of a plea agreement by approximately 20 to 25 percentage points across various model specifications. Not only is this finding important in its own right by illuminating capital defendants' behavioral response to the death penalty, it also has meaningful implications for other purported benefits of plea bargaining in the capital context. The paper briefly considers one of the most commonly identified benefits of plea bargaining--cost reduction--and concludes that the death penalty fails to deter sufficient numbers of murder defendants from opting for trial to offset the significant expense of a capital case and subsequent appeals.
TABLE OF CONTENTS INTRODUCTION I. PLEA BARGAINING IN THE SHADOW OF DEATH A. Bargaining Incentives B. Bargaining Disincentives II. PRIOR RESEARCH III. GEORGIA'S DEATH PENALTY A. History and Description of the Modern Statute B. Life Without the Possibility of Parole C. Capital Case Progression IV. DATA V. EMPIRICAL STRATEGY A. Designation of Treatment and Control Groups B. Statistical Model C. Missing Data VI. RESULTS A. Fixed-Effects Logit Specifications B. Sensitivity Analyses VII. FINANCIAL IMPLICATIONS AND DISCUSSION VIII. CONCLUSION INTRODUCTION
Plea bargaining (1) is a crucial feature of our criminal justice system, as approximately 95% of convictions that occur within a year of arrest are obtained by a guilty plea. (2) Despite its current centrality, however, "plea bargaining did not occur with any frequency until well into the nineteenth century," (3) and the Supreme Court did not specifically address its constitutionality until long after it was common practice in the criminal justice system. (4) In Brady v. United States, (5) the Court reasoned that plea bargaining benefited both sides of the adversarial system and was "inherent in the criminal law and its administration." (6) The following year, in Santobello v. New York, (7) the Court defended the practice of plea bargaining, calling it "an essential component of the administration of justice" (8) that was to be encouraged as long as it was properly administered (i.e., as long as pleas were intelligent and voluntary). Several years later in Bordenkircher v. Hayes, (9) the Court endorsed prosecutorial threats of stiffer penalties when defendants refuse to accept a plea offer, (10) In fact, since its formal endorsement of plea bargaining, the Court has been reluctant to regulate plea bargains, recently noting that "[h]indsight and second guesses are  inappropriate ... where a plea has been entered without a full trial...." (11) Most judges support the system of plea bargaining because it allows them to alleviate the need to schedule and hold a trial on what are typically already overcrowded dockets. (12) Prosecutors desire both the reduced caseload and assurance of a conviction from plea bargaining. Plea negotiations also allow prosecutors to strengthen their cases against codefendants by offering certain defendants a plea arrangement in exchange for testimony against one or more codefendants. This practice assures prosecutors at least one conviction while also enhancing the chances of a subsequent conviction. Defendants are allowed to avoid a more serious charge or sentence and, if represented by private counsel, avoid the cost of a trial. (13) So, on balance, the practice of plea bargaining is generally believed to be superior to trials due to reduced costs, improvements in the speed and efficiency of case processing, and increases in the certainty of convictions. The practice is not without its detractors, however, as legal academics and practitioners continue to debate its fairness and desirability.
Critics of the plea-bargaining system emphasize that it encourages prosecutors to "overcharge" at the start of the case in an effort to coerce defendants into accepting a plea, allows prosecutors to "cure" defects in their cases by avoiding trial, and encourages defendants to plead guilty to crimes that they did not commit. (15) A defendant who agrees to a plea bargain may also be required to relinquish certain constitutional and statutory rights in exchange for a negotiated plea. (16) Opponents of plea bargaining also suggest that the practice allows defendants to avoid the appropriate punishment for their crimes (as established by state legislative bodies) and that the practice heavily favors defendants with savvy lawyers, irrespective of the defendants' actual culpability. (17) Also, claims of plea bargaining as a "necessary" and "inevitable" component of our criminal justice system have been challenged, as critics of plea bargaining point to jurisdictions that have experimented with partial or complete bans on the practice. (18)
The debate over the promises and pitfalls of plea bargaining is perhaps most contentious in the context of the death penalty, (19) yet scholars have conducted very little research on the relationship between the death penalty and plea negotiations. (20) Instead, they have focused the bulk of their attention on the examination of the possible deterrent effect of the death penalty on potential murderers. (21) This Article offers an empirical examination of the causal impact of the threat of the death penalty on the likelihood of parties reaching a plea agreement. This type of inquiry is particularly relevant because the effect of the death penalty on plea bargaining is theoretically ambiguous. The threat of the death penalty may induce defendants who may not have otherwise accepted a plea agreement to plead to avoid the risk of possible execution, so the overall number of cases proceeding to trial is reduced. An opposite effect is plausible as well: armed with the threat of the "ultimate penalty," prosecutors may be less willing to offer capital defendants desirable plea bargains, if any bargain at all, so the number of cases going to trial may increase. (22) It is also possible that the death penalty will have no impact on the likelihood that a defendant accepts a plea bargain and will only impact the terms of the bargain. (23) As two scholars have recently noted, "opposing hypotheses about the effect of the death penalty on prosecutorial discretion have never been rigorously tested." (24)
Examining the impact of capital punishment on plea bargaining is important for several reasons. First, it helps inform our understanding of how sentencing law influences plea bargaining. Given the centrality of pleas for the disposition of criminal cases, studying how sentencing structure impacts the incentives of prosecutors and defendants in plea negotiations is important to our understanding of the criminal justice system.
Second, the use of the death penalty as leverage in plea negotiations raises important legal and ethical issues. Defendants are typically required to waive important constitutional rights as a condition of the plea agreement. (25) Many of these rights are considered crucial to the accurate determination of guilt and punishment at trial, so the absence of these protections may undermine our confidence in that determination. This may be of particular concern in the capital context because although defendants who plead guilty avoid the risk of execution, they still receive very lengthy sentences--typically life imprisonment. The threat of the death penalty has also induced innocent defendants to plead guilty (and even falsely implicate others) to avoid execution. (26)
Finally, the study of the plea-negotiation process in the capital context permits us to gain a better understanding of the financial and administrative costs of capital punishment to states and the federal government. Capital trials are extremely expensive and they rarely reduce prison costs because of the infrequency of executions and the added expense associated with housing inmates on death row. (27) The threat of capital punishment may result in substantial savings, however, if the threat of execution deters sufficient numbers of individuals from pursuing trial.
Part I of the Article discusses many of the unique aspects of plea bargaining in the capital context and how these factors cut both in favor and against successful plea negotiations. Part II describes the limited empirical research on the impact of the threat of the death penalty on plea bargaining and how certain weaknesses of...