The Use of Life and Death as Tools in Plea Bargaining

Date01 March 2012
AuthorSusan Ehrhard-Dietzel
DOI10.1177/0734016811431979
Publication Date01 March 2012
SubjectArticles
CJR431979 89..109 Criminal Justice Review
37(1) 89-109
The Use of Life and Death as
ª 2012 Georgia State University
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Tools in Plea Bargaining
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DOI: 10.1177/0734016811431979
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Susan Ehrhard-Dietzel1
Abstract
Given its severity, the death penalty may play a unique role in plea bargaining, unlike that of a lesser
maximum sentence of life without parole, which involves the defendant’s loss of his freedom but not
the loss of his life. The possibility of a death sentence may be powerful incentive for the defense to
accept a plea bargain; accordingly, prosecutors may use the death penalty as leverage to induce a
guilty plea in death-eligible cases. Interviews with prosecutors and defense attorneys in a state where
the maximum punishment for murder is death and a state where the maximum punishment for mur-
der is life without parole are used to explore the role of the death penalty as leverage in plea bar-
gaining, as compared to the role of a maximum sentence of life without parole. Findings suggest that
prosecutors are not necessarily inclined to charge capital murder in order to induce a guilty plea,
given considerations including ethics and financial cost, considerations that are largely absent from
decision making in cases where the maximum possible sentence is life without parole.
Keywords
capital punishment, corrections, sentencing, courts/law, qualitative methods, other
Introduction
The role of the death penalty in plea bargaining is an important consideration and one that raises
significant implications concerning the human and economic costs of capital punishment. The death
penalty is different in kind from lesser punishments, which involve the defendant’s loss of his free-
dom but not the loss of his life. As such, when faced with the possibility of a death sentence, the
defense (defense attorneys and defendants) may be inclined to accept pleas to sentences that would
otherwise be rejected, where the difference between a plea bargain and a trial conviction is a matter
of years and not a matter of life and death. Prosecutors may use this inclination to their benefit,
charging cases as capital in order to induce a guilty plea and save the economic cost of a murder
trial, while accruing the benefit of a certain conviction and lengthy prison sentence.
Prosecutors have the authority to charge a case capitally if they consider it appropriate to do so,
whether for purposes of pursuing a death sentence or inducing a plea bargain. Prosecutors’ charging
1School of Social Welfare, University at Albany, State University of New York, Albany, NY, USA
Corresponding Author:
Susan Ehrhard-Dietzel, School of Social Welfare, University at Albany, State University of New York, Richardson Hall, 184,
Albany, NY 12222, USA
Email: sdietzel@albany.edu

90
Criminal Justice Review 37(1)
decisions are an integral part of the plea bargaining process (Alschuler, 1968; Utz, 1978; Vorenberg,
1981), and the death penalty is an important tool in giving prosecutors the upper hand (Mather, 1979;
Nakell & Hardy, 1987). Although the notion that prosecutors may use the death penalty as leverage
to induce a guilty plea has been widely discussed (i.e., Alschuler, 2009; Bedau, 1982; Gross, 1996;
King, 2004; Slogan, 2000; Tabak, 1986; van den Haag, 2003; Welsh-Huggins, 2009; White, 1991,
2009), little systematic research on the topic has been conducted. The vast empirical literature
addressing the dynamics of plea bargaining (i.e., Alschuler, 1968, 1975; Eisenstein & Jacob,
1977; Emmelman, 1996; Heumann, 1977; Mather, 1979; Maynard, 1984) has not specifically
explored such dynamics in capital and capital-eligible cases. This is a significant gap, as the possi-
bility that the death penalty may act as a plea bargaining tool raises important legal, ethical, and
moral concerns, and carries significant policy implications pertaining to the human and economic
costs of capital punishment.
The benefits of plea bargaining, including efficiency, cost effectiveness, and certainty of outcome
(Bibas, 2003), are magnified in capital cases, where trials are particularly expensive (Bohm, 2003;
Dieter, 2005). Accordingly, there is a potential cost savings in using the death penalty as a threat to elicit
a guilty plea and thereby avoid the exorbitant expense of a trial. Additionally, given the possibility of a
death sentence, as part of a plea bargain a prosecutor may obtain a certain conviction to a higher sen-
tence than the defense might otherwise agree to, were the defendant not facing the death penalty at trial.
While plea bargaining provides an advantage to defendants, enabling them to reap the benefit of a
lesser sentence (Alschuler, 1981), critics assert that the practice unfairly causes criminal defendants
to waive their Fifth, Sixth, and Fourteenth Amendment rights (Halberstam, 1982).1 Critics argue that
plea bargaining is coercive in that defendants are induced to waive their trial rights out of fear of
being punished with additional charges and a harsher sentence if they do not plead guilty (Brunk,
1979; Langbein, 1978; Littrell, 1979). The weight of a possible death sentence in particular may
impede a defendant’s choice to exercise his constitutional rights and adversely affect the voluntary
nature of his plea (Slogan, 2000). Notwithstanding these concerns, the Supreme Court has legiti-
mated prosecutors’ use of charging and sentencing leverage as aspects of plea bargaining generally
(Bordenkircher v. Hayes, 1978) and in capital cases more specifically (Brady v. United States, 1970;
North Carolina v. Alford, 1970; Parker v. North Carolina, 1970).
However, questions regarding the moral and ethical acceptability of prosecutors’ use of the death
penalty in plea bargaining remain. For example, the possibility of the death penalty may serve to
induce guilty pleas by defendants who, though guilty of capital murder, are not representative of
cases for which the death penalty is typically imposed, a concern expressed in Gregg v. Georgia
(1976). When prosecutors initially charge a case capitally in order to improve their position in plea
bargaining, the defendant may be bargaining down from a charge that is excessive or inappropriate
(Bowers, Pierce, & McDevitt, 1984; Mather, 1979; Radelet & Pierce, 1985). Concerns over the
influence of the death penalty in such situations are magnified if the defendant is not only innocent
of capital murder but innocent of any murder (Bedau, 1982). While there is little evidence that inno-
cent defendants plead guilty to avoid more severe prison sentences (Bagaric & Brebner, 2002; Gross,
1996),2 there is evidence that innocent defendants have pled guilty to avoid death (Gross, 1996;
Radelet, Bedau, & Putnam, 1992).
The few studies that have empirically addressed the role of the death penalty in plea bargaining
have not explored the issue of innocence specifically, but they do inform an understanding of the
influence of the death penalty as leverage. Kuziemko (2006) examined plea bargaining in murder
cases in New York before and after reinstatement of its capital punishment statute in 1995. Her
research showed that after reinstatement of the death penalty statute, murder defendants were more
likely to plead guilty to the original charge but less likely to plead guilty to a reduced charge, sug-
gesting that defendants may accept guilty pleas to sentences that would otherwise be rejected were it
not for the threat of capital punishment. Accordingly, she suggested that district attorneys gained

Ehrhard-Dietzel
91
bargaining power in murder cases after the statute was passed because defendants seemed more
willing to plead guilty to severe sentences and less likely to receive deals with relatively lenient
punishments.
Similarly, Ehrhard (2008) found that in death-eligible cases the threat of capital punishment was a
powerful incentive for the defense to forgo the risk of a trial. Through interviews with prosecutors
and defense attorneys in a state with the death penalty, she systematically explored plea bargaining
in death and non-death-eligible murder cases. In non-capital cases, she found that there was little
incentive for the defense to accept a plea bargain, as the offers from the prosecution were unlikely
to give the defendant a realistic hope of release; this finding mirrored that of an earlier study by
Mather (1979). These studies suggest that the leverage of a possible death sentence is an important
plea bargaining tool at the prosecution’s disposal.
Importantly, these findings should not be interpreted to suggest that a maximum sentence of life
without parole is not a significant punishment, but its power as a plea bargaining tool is questionable
when compared with that of the death penalty. Research addressing the influence of life without par-
ole on plea bargaining in murder cases however, is lacking. In discussing this punishment, Cheat-
wood (1988) and Wright (1990) suggest that compared with lesser punishments, life without
parole changes the negotiations between the prosecution and the defense, but they do not discuss
how it changes negotiations nor do they provide evidence of its impact on plea bargaining. The cur-
rent study seeks to address this gap by exploring the role of the death penalty as well as the role of
life without parole as leverage in plea bargaining.
Data and Method
This study involved two states, Michigan, a state without the death penalty, and Ohio, a state with the
death penalty. The examination of leverage was part of a...

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