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PLEA BARGAINING AND THE DEATH PENALTY: AN

EXPLORATORY STUDY

USAN EHRHARD

One of the most troubling criticisms of plea bargaining is that it is coercive, insofar as pros-

ecutors 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 surround-

ing 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.

he 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 defen-

dants 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, adju-

dicative, 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 Four

teenth Amendment rights (see, e.g., Halberstam, 1982).

One of the most tr

oublesome criticisms of plea bar

gaining is that it is coer

cive,

with pr

osecutors using their discr

etion to induce defendants to for

feit their rights out

of fear of being punished with additional char

ges and a harsher sentence if they do

not plead guilty

. The Supr

eme Cour

t condoned this practice in

Bor

denkir

cher v

. Hayes

(1978) and has said that guilty pleas induced out of fear of the death penalty or

because of pr

osecutors’ thr

eats may be voluntar

y and fr

ee of coer

cion in a constitu

tional sense, and that the decision to enter a plea is not coer

ced so long as a defen

dant can make a voluntar

y and intelligent choice among alter

natives (see

THE JUSTICE SYSTEM JOURNAL, VOL. 29, NUMBER 3 (2008)

314 THE JUSTICE SYSTEM JOURNAL

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 that

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-wor-

thy, 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 that punishment. Defendants and defense attorneys may not ordi-

narily 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 con-

viction were a matter of years and not a matter of life and death. While there is little

empirical evidence that innocent defendants plead guilty to avoid more lengthy terms

of imprisonment, there is evidence that innocent defendants plead guilty to avoid

death (Radelet, Bedau, and Putnam, 1992). Accepting a plea provides the defendant

with the advantage of securing a sentence less than the maximum punishment

allowed under the law, as the Supreme Court pointed out in

Brady (1970). The gov-

ernment benefits as well, said the Court, in that plea bargaining allows for the con-

servation of scarce judicial and prosecutorial resources. Thus, in using the death

penalty as leverage, the prosecution both secures a plea to a higher sentence than

would otherwise be obtained and avoids the administrative and financial costs of a

murder trial, and especially those of a capital murder trial.

The drain of the death penalty on the resources of the judicial system is well-

known (see Bohm, 2003, and Dieter, 2005, for reviews of cost studies), with death

penalty cases more expensive than non-death penalty cases at every stage of the judi-

cial process (Brooks and Erickson, 1996; Garey, 1985). There is, however, some recog-

nition of the possibility that the death penalty may produce a savings in cost (Bohm,

2003; Dieter

, 2005), but this possibility is lar

gely dismissed without evidence either

way or without taking cost savings into account (Cook and Slawson, 1993; State of

Kansas, 2003). Costs especially bur

den local governments, which often bear the brunt

of the expenses in capital cases (Dieter

, 1994). Threatening the death penalty to

induce a plea may pr

ovide a prosecutor with the ideal solution to the Catch-22 of

wanting to appear tough on crime but not wanting to drain the county budget.

THE CURRENT STUDY

Although prosecutors’ use of the death penalty has long historical roots (see, e.g.,

McGowen, 2007) and prosecutors’ use of the death penalty in this way has been rec-

PLEA BARGAINING AND THE DEATH PENALTY: AN EXPLORATORY STUDY 315

ognized (e.g., Bedau, 1982; Gross, 1996; Tabak, 1986), little empirical research on the

topic has been conducted. The factors influencing both prosecutors and defense

attorneys to discuss a plea bargain in death-eligible cases have been discussed anec-

dotally, based on interviews with attorneys (e.g., White, 1991), but thus far, there has

been only one systematic study (Kuziemko, 2006). Thus, it is important to ask

whether prosecutors use the death penalty as leverage and to study both prosecutors’

and defense attorneys’ experiences with, and perceptions of, the plea-bargaining

process in death-eligible cases.

This article presents an exploratory study of such matters for both death and

non-death-eligible murder cases in a death penalty state. The state has a diverse

population and is composed of a number of large, densely populated urban areas,

although a substantial portion of the population resides in smaller cities and more

rural counties. This state has three top sentences for the offense of murder—death,

life without parole, and life—and its death penalty statute is typical of most, requir-

ing the prosecution to establish one or more aggravating factors to make a murder

death-eligible and then requiring the jury to consider aggravating and mitigating fac-

tors when deciding on a sentence. Prosecutors are elected locally and, under law, are

given autonomous discretion over capital-charging decisions, although they are

required to provide notice, within a fixed time period after the defendant has been

arraigned, of their intent to seek the death penalty. Although the state may provide

the county with additional personnel and resources for the prosecution of capital

cases, the brunt of expense typically is borne by local government.

Data consist of twenty-seven in-depth interviews, fifteen with defense attorneys

and twelve with prosecutors. Participants were chosen from a complete list of the

death-noticed cases in this state and are representative of cases in both urban and

rural jurisdictions. Only lawyers who either defended or prosecuted at least one

capital-eligible case and at least one non-capital-murder case were included. All the

defense attorneys were appointed private attorneys with the training and experience

required to defend capital cases in this state. Nearly 70 percent of the defense attor-

neys who were contacted agreed to participate; the participation rate for prosecutors

was 50 percent. Not one of the respondents expressed a belief in the innocence of

the defendants represented or prosecuted. Nor did defense attorneys, who did not

epor

t any clients denying they committed mur

der

, express doubt that the murders

their clients committed qualified for the death penalty

The inter

views, which lasted an average of ninety minutes and were guided by

an open-ended questionnair

e, were conducted over a six-month period in 2005.

Par

ticipants were asked two sets of nearly identical questions about their experiences

with the pr

ocess of plea bargaining in murder cases where the maximum sentence for

the of

fense charged was either death, or life, or life without parole (LWOP). Special

All interviews were tape-recorded and subsequently transcribed, with the exception of those with one defense

attor

ney and two prosecutors who requested not to be recorded. Interview instruments are available upon

request.

316 THE JUSTICE SYSTEM JOURNAL

attention was paid to the role of the maximum possible sentence in the prosecution’s

decision to offer a plea and the defense’s decision to accept it. Respondents were

asked about the initiation, duration, and extent of any plea negotiations and about

factors that influenced their pursuit of a plea or a trial, specifically including the

weight of a potential life or death sentence.

FINDINGS

Defense attorneys and prosecutors felt that the option to file a death notice puts the

prosecution in a unique position of strength and affects the defense’s decision regard-

ing a plea in ways that a potential sentence of life or life without parole does not. A

majority of defense attorneys said the death penalty gives prosecutors great leverage

and is a powerful tool at the prosecution’s disposal. While few prosecutors said the

death penalty was used as leverage in their own county, some speculated that it was

used in this way in other counties.

The Defense Attorneys’ Perspectives. The consensus among defense attorneys was

that the threat to file and pursue a death notice in a murder-one case is the prosecu-

tor’s most powerful tool; twelve defense attorneys acknowledged prosecutors’ ability

and willingness to take advantage of it. One said the death penalty is a tool in the

prosecution’s arsenal and that prosecutors have an obligation to use all the tools in

their arsenal. It was noted that some prosecutors could, and indeed do, use the lever-

age of seeking death to force pleas and to force them quickly: “In the majority of the

death-eligible cases there [in a particular county], the DA would say, ‘This is death-

eligible, I think I’m going there, tell me why I shouldn’t,’ and the defense attorney

has to run around and put it all together, and then the DA says, ‘ok, fine, LWOP’”

(defense attorney #47). When, as one defense attorney put it, prosecutors “say they

don’t” but “do, absolutely” use the threat of death as leverage to induce a plea, this is

“one of the most duplicitous parts of the process in my book, when you go in for a plea

on a case that is capital eligible or on which a notice has been filed and they require

the client to say that I’m pleading knowingly, freely, and voluntarily and ‘no, I haven’t

been coerced.’ Bull-shit you haven’t been coerced” (defense attorney #98).

Thus, from the defense attorneys’ perspective, prosecutors are well aware of

their power and in many cases are willing to make use of it as to what, if anything,

they ar

e going to offer. In many cases, although not all, that offer is life without

par

ole: “I don’t know anybody who pleads to life with parole. It’s always LWOP ver-

sus the death penalty” (defense attor

ney #53). The defense thus finds itself faced with

a choice between accepting a plea to life without par

ole or taking the risk that a death

notice will be filed and a capital trial pursued. Some defense attor

neys pointed to a

situation wher

e the pr

osecutor may of

fer a plea befor

e a death notice is filed, telling

the defense that if notice is filed, the of

fer will no longer be available. For many attor

neys, the possibility of a capital trial is a risk simply too gr

eat to take: “If they of

fer

you anything less than death and you don’

t take it, imagine if you guessed wr

ong”

(defense attor

ney #58). Another attor

ney said that in one case, he was not convinced

PLEA BARGAINING AND THE DEATH PENALTY: AN EXPLORATORY STUDY 317

a death notice would be filed, but he felt he could not take the chance, and thus he

accepted the district attorney’s offer of a plea to life without parole. Similarly, anoth-

er noted that although he would go to trial if the client wanted to do so, in a death

case he would never advise the client to go to trial, as the risk is just too high.

While the majority of defense attorneys leaned toward a plea in the face of

death, not all felt this way. Two indicated that while others might be inclined to have

their clients plead in a death-eligible case, their own inclination toward pursuing a

plea or pursuing a trial is not affected by the possibility of a death sentence: “It [the

possibility of death] doesn’t make me nervous. . . . It doesn’t intimidate me” (defense

attorney #53). “I’ve often thought that if you’re ‘negotiating for life,’ you’re not

defending. That’s been my view of it” (defense attorney #22). However, these indi-

viduals were the minority, as for most, the leverage of death was a sufficient induce-

ment to urge the defendant not to pursue a trial but to plead.

The threat of a sentence of life or life without parole might also be used as lever-

age to encourage a defendant to plead, but these sentences do not carry the same

weight as death: “There are certainly cases where if LWOP is the max, you’d risk a

trial, but where if death were the max, you wouldn’t” (defense attorney #58). In a cli-

mate in which the state’s parole board is averse to releasing offenders before the expi-

ration of their sentences, some defense attorneys viewed the difference between

twenty-five years to life and life without parole as largely insignificant. Indeed, only

three defense attorneys said that, in a non-death-eligible case, the possibility of a sen-

tence of life without parole was the most important factor in the desire for a plea.

Thus, when faced with the choice between accepting a plea to an open life sentence

or going to trial on LWOP, some defense attorneys would be inclined to take the risk

of trial. However, in sharp contrast, in death-eligible cases, eleven defense attorneys

said the possibility of a death sentence was the most important factor; the certainty

of a sentence less than death is a significant benefit to entering a plea.

Not only do many defense attorneys view the death penalty as an important

prosecutorial bargaining tool that leaves them little choice but to accept whatever

plea the prosecution offers, but in most cases, it is they, the defense attorneys, who

initiate the possibility of a plea. Nine of the eleven attorneys who said they are more

likely than the prosecutor to initiate a plea cited the death penalty as a reason.

(Inter

estingly

, in stark contrast, not one defense attor

ney cited the possibility of a sen

tence of life or life without par

ole as influencing whether they initiate a plea.) A

majority of defense attor

neys (twelve) said such plea offers were discussed early, even

at day one. Seven of the twelve cited the death penalty as a r

eason why a plea was

raised so early

, while five cited the strength of the case or the strength of the evi-

dence: “When you’r

e looking at a death case, from day one, if there is evidence point-

ing to him, you’r

e really working toward that day when you’re going to ask that they

agr

ee to LWOP” (defense attorney #34). In contrast, in cases where the maximum

punishment is life or life without par

ole, pleas were not necessarily raised immediate-

ly, and there was no clear pattern as to who is more likely to initiate a plea bargain.

318 THE JUSTICE SYSTEM JOURNAL

Who initiated depended on a number of factors, including the prosecutor and the cir-

cumstances and strengths and weaknesses of the case.

Most defense attorneys indicated that negotiation over the parameters of the

plea in death-eligible cases is limited. Six defense attorneys said that a plea offer was

presented as “take it or leave it.” Another attorney said that, while there may be some

give and take, “prosecutors know they are in the driver’s seat” (defense attorney #47).

In two other cases, the prosecutor would not discuss a plea, so there was no negotia-

tion or bargaining over the parameters of a plea. In contrast, about half the defense

attorneys said there was negotiation and bargaining in non-death-eligible cases: four

said there was little negotiation while four said it varies.

Factors Considered. Other than the maximum sentence, defense attorneys cited

eleven different factors as influencing their tendencies to pursue a plea or trial in

death-eligible cases, but they cited twenty-two different factors in non-death-eligible

cases. In addition to the factors about to be discussed, those cited by more than one

defense attorney are quality of the defense argument, mental and emotional state of

the client, and client’s desires. What the client wants was also cited by more than one

defense attorney as a factor in non-death-eligible cases, along with the chances of

being convicted on a lesser charge and how evidence was acquired in terms of poten-

tial suppression.

The strength of the case or the strength of the evidence was the most common-

ly cited factor regardless of whether the case was death-eligible. However, while a

majority (twelve) cited it as influencing their plea/trial tendencies in non-death-eli-

gible cases, only about half (seven) mentioned it in death-eligible cases. Six defense

attorneys cited the chances of winning the case as a factor in non-death-eligible cases;

four cited it in death-eligible cases. Seven mentioned the fairness of the plea offer as

an influential factor in non-death cases, but not one attorney mentioned it as a fac-

tor in death-eligible cases. This accords with our findings on defense attorneys’ will-

ingness to plead when death is on the table, even for sentences as great as life with-

out parole.

Similarly, although only two attorneys cited considerations regarding the jury in

non-death-eligible cases, nearly half mentioned this as a factor in death-eligible cases:

“If death is on the table, a legitimate death case . . . I think you have to do everything

you can conceivably do and can’

t take any chances on a trial . . . because you don’

know what a jur

y is going to do” (defense attor

ney #58). Attor

neys also pointed to

the Catch-22 of having to convince a jur

y of the defendant’s innocence in the guilt

phase of the trial but then, upon conviction, having to say to the jur

y that the client

is guilty but that his life should be spar

ed.

Costs. Another factor

, cited not only by only some defense attorneys but also by

osecutors, was the cost of a capital case. Five defense attorneys pointed to the finan-

cial impact of a death penalty trial on the state, par

ticularly the local government.

This is par

ticularly an issue for rural counties, where the district attorneys are under

PLEA BARGAINING AND THE DEATH PENALTY: AN EXPLORATORY STUDY 319

greater pressure from their conservative constituents to seek the death penalty. One

defense attorney, speaking of a case in a rural county where the community was cry-

ing out for the death penalty, said that the district attorney filed a death notice but

eventually offered a plea, telling the community that he could “save the taxpayers a

lot of money.” Similarly, a prosecutor who acknowledged using the death penalty as

leverage to induce a plea said, “You have to consider resources . . . even if the defen-

dant deserves the death penalty, there may just be a realization that . . . it’s not worth

the resources it’s going to take to get it, if it can be resolved by plea” (prosecutor #5).

The Prosecutors’ Perspectives. Prosecutors are well aware that they can use the

threat of death as leverage to garner a plea to a higher sentence than they would

obtain if the death penalty was not an option. While all prosecutors in this sample

acknowledged that the death penalty could be used this way, six said it is not, and five

said that, although it is not used this way in their counties, it may indeed be used this

way in other counties; two cited the potential for coercion as the reason. It may be

argued that these five individuals’ responses reflect the phenomenon of projection,

attributing to others what they themselves do so they can avoid a claim of ownership

of a behavior that might be perceived as socially undesirable (Arthur and Nazroo,

2003; Singleton and Straits, 2005).

Only one prosecutor said that he uses the death penalty as a tool in plea bar-

gaining. His comments reflect what defense attorneys said earlier about prosecutors

using all the tools in their arsenal:

I think that even though I believe death to be a just punishment in

a particular case, there may be practical considerations that would warrant

me saying, if I can get a plea and a waiver of a right to appeal and finality

to this case without expending all these resources, that’s justice as well, and

in those cases, frankly I don’t have any problem, and I don’t believe there’s

anything wrong with using death as a bargaining chip (prosecutor #5).

Notably, a prosecutor who said that he does not use the threat of death to elicit a plea

and will only seek death if he feels it is the right verdict for the case nevertheless

echoed these comments: “We always told the defense, the only two options are either

we’re going to seek the death penalty, or if there’s going to be a plea, it’s gonna be life

without par

ole” (pr

osecutor #48). Thr

ee of the pr

osecutors who said death is not used

as leverage said the decision to seek death is made with the belief that it should be up

to a jur

y to decide the appropriate punishment, but one of these individuals also

acknowledged that death is an impor

tant bargaining tool with which to resolve a case.

It is impor

tant to point out that even if prosecutors do not openly use the death

penalty as leverage, defense attor

neys may perceive that they do and may in turn seek

to have their client plead. Indeed, one pr

osecutor noted that when he is deciding

whether or not to file a death notice, the defense may per

ceive that he is inclined to

file and may want to plead without having any indication fr

om him one way or the

320 THE JUSTICE SYSTEM JOURNAL

other. Whether or not prosecutors make use of the death penalty in this way, they are

well aware that the possibility of a death penalty provides the benefit of pleas accom-

panied by higher sentences.

Prosecutors’ comments regarding pleas to life without parole mirror those of the

defense attorneys: “If not for the death penalty, they’re not going to plead to life with-

out parole” (prosecutor #5), and “I’m not a rabid proponent of the death penalty [but]

if it has an upside, it’s that we’ve resolved some cases with pleas of life without parole

where that was the appropriate sentence” (prosecutor #41). Thus, generally, prosecu-

tors and defense attorneys agree that without the threat of death, a case is unlikely to

be resolved by a plea to life without parole.

By the same token, in a non-death-eligible murder case, the threat of life with-

out parole may provide a powerful incentive for the defendant to accept a plea bar-

gain to something less. Although some defense attorneys did not express a vulnera-

bility to this threat, a few of the prosecutors perceived one, and one recalled instances

where defendants had pled to avoid LWOP: “They’re not going to plead and take life

without parole, but if they can get a sentence that gives them the possibility of get-

ting out . . . we’ve had numerous examples of cases that have [been] resolved that

way” (prosecutor #5). Although defendants have an incentive to plead to avoid the

maximum potential penalty, whatever that may be, defense attorneys and prosecutors

agreed that facing twenty-five years to life does not hold the same weight as facing

LWOP. They said that plea offers in such cases were unlikely to involve a determinate

sentence, and without that, the defense had little to lose in pursuing a trial.

It is important to note that about half the prosecutors said that, just as with the

death penalty, they did not use life without parole as a bargaining tool and did not

seek a sentence of life without parole unless they felt it was appropriate. However, this

did not necessarily mean that prosecutors, aware that the maximum penalty may

serve as leverage, would not accept pleas in death and non-death-eligible cases. For

example, one prosecutor said that while he does not seek LWOP for the purpose of

obtaining a plea, it is a built-in bargaining tool and one that enables him to get pleas

and avoid trials.

As to the initiation of plea possibilities, the experiences and perceptions of

prosecutors underscore what the defense attorneys said about raising the possibility of

a plea in such cases: a majority (nine) of pr

osecutors said the possibility of a plea is ini

tiated early

, and a slight majority (seven) said the defense attor

ney is the one to initi

ate the discussion. This is in contrast with non-death-eligible cases, wher

e there is no

clear patter

n among the prosecutors as to who is more likely to initiate a plea bargain.

Most pr

osecutors said there was no negotiation over a plea in death-eligible

cases; a plea bar

gain, if offered, was presented as “take it or leave it,” as exemplified

by comments r

egarding the nature of plea discussions: “I didn’t see the process as

being bar

gaining, negotiating, as much as persuading, the defense trying to persuade

that this mitigation should be consider

ed, these are the things you should be looking

at and making the decision between offering life without parole and going for the

PLEA BARGAINING AND THE DEATH PENALTY: AN EXPLORATORY STUDY 321

trial” (prosecutor #76). This perspective reflected the responses of defense attorneys.

Interestingly, half the prosecutors said negotiation is also limited in non-death-eligi-

ble cases; one said there is negotiation and bargaining, and five said it varies.

Factors Considered. Prosecutors cited numerous factors as influencing the degree

of negotiation in such cases, including the strength of the case or the strength of the

evidence and the extent of the judge’s involvement. While the death penalty may

indeed be an effective tool to encourage pleas, it is not the sole factor in the decision

of whether to offer a plea. Asked about the factors that influence their desire to pur-

sue a plea or to pursue a trial in death-eligible and non-death-eligible murder cases, a

majority of prosecutors cited the strength of the case or the strength of the evidence.

Notably, five prosecutors specifically said that even if they felt the evidence weighed

in favor of a conviction, the strength of the mitigation evidence might influence

them not to pursue a trial. Along similar lines, a majority of prosecutors said the

defendant’s characteristics, including the defendant’s criminal history, the nature of

the defendant and his or her attitude, and the defendant’s background in terms of

mental capabilities and mitigating circumstances, influence their desire to plea-bar-

gain or to pursue a trial in non-death-eligible cases.

Another factor commonly cited by prosecutors was consideration for the vic-

tim’s family. Some prosecutors said the wishes of the victim’s family take on greater

importance in death than in non-death cases because of the length of a death penal-

ty trial and possible years of appeals that the family will have to endure. Interestingly,

not one prosecutor mentioned the influence of political factors, although one casual-

ly noted that there is a different district attorney in office now than there was when

the death cases were prosecuted. However, when asked to speculate on factors they

believe influence prosecutors to pursue a plea or pursue a trial in death-eligible cases,

fourteen of the fifteen defense attorneys mentioned politics.

Other factors that were cited by more than one prosecutor as influencing the

plea/trial decision in death-eligible cases were the nature of the crime, concerns or

issues regarding witnesses, the likelihood of the jury voting for death, and concerns

regarding the appellate process. More than one prosecutor cited the nature of the crime

as a factor in non-death-eligible cases as well; other cited factors in non-death-eligible

cases are the circumstances and facts of the crime, the relationship between the defen-

dant and the victim, and the need for the defendant’

s testimony in another case.

Beliefs About the Defendants’ Perspectives. All r

espondents wer

e asked if they

believed defendants plead to a lesser sentence specifically to avoid the possibility of

death or

, in a non-death-eligible case, to avoid the possibility of life or LWOP. It is

impor

tant to emphasize that the following discussion is based on

attor

neys’

per

cep-

tions of the defendants and not on

defendants’ own expr

essions of their preferences.

Given their closer r

elationship with defendants and the fact that for defendants, one

of the most impor

tant factors influencing the decision to pursue a plea or a trial is

their attor

neys’ advice (Baldwin and McConville, 1977; Casper, 1972), defense attor-

neys are better able to discuss this than are prosecutors. Whether their beliefs about

322 THE JUSTICE SYSTEM JOURNAL

defendants’ preferences reflect the defendants’ own opinions or reflect defense-attor-

ney influence on those opinions cannot be determined from these data. Prosecutors

were also asked their perceptions of how defendants view the maximum potential

sentence; this may provide an additional, albeit rough, indicator of prosecutors’ belief

in the power of that sentence to induce a defendant to plead.

Ten defense attorneys and ten prosecutors said defendants plead to a lesser sen-

tence to avoid the possibility of death. Although defendants may not initially want

to plead, their attitude may change as they focus on the likelihood of a death sen-

tence: “Initially they have the mentality of the non-death case where they want to

fight it, but some of them, when they start realizing they’re looking at death, they get

more realistic about it. I think death does make them plea [sic] more” (defense attor-

ney #16). They may begin to see that a plea bargain does provide a benefit by

enabling them to avoid the maximum possible sentence. Indeed, eight defense attor-

neys and seven prosecutors felt the threat of death was an important factor in defen-

dants’ decision to plead, and ten defense attorneys, but only five prosecutors, felt it

was the most important factor. One attorney said that a client who might, in anoth-

er situation, say “fuck them” would not necessarily do so when faced with the possi-

bility of death if a plea was not accepted.

Ten defense attorneys and seven prosecutors said that defendants facing a sen-

tence of life or LWOP are inclined to accept a plea to something less, although two

defense attorneys and one prosecutor specified that LWOP carries more weight than

life, and a slight majority of defense attorneys said the maximum sentence in such

cases was the most important factor in defendants’ decision to plead. As only four

prosecutors said as much, in both death and non-death-eligible cases, prosecutors may

be underestimating the maximum sentence’s weight in inducing defendants to plead.

It is important to note that not all defendants are said to express vulnerability

when faced with the possibility of a death sentence. Indeed, nine defense attorneys

said there are some defendants who prefer to pursue a trial even in the face of death.

This was most commonly said to stem from defendants’ overly optimistic view of their

chances at trial, but it may also result from their psychological problems. Also, some

defendants do not view life without parole as much of an alternative and would rather

die than spend the rest of their lives in prison: “There are clients who are deathly

afraid of the death penalty

, and ther

e ar

e clients who ar

e deathly afraid of being ware-

housed for the r

est of their lives” (defense attor

ney #22).

It should also be r

ecognized that the desire for a lesser sentence is not the only

factor in a defendant’

s decision to enter a plea. According to defense attorneys, defen-

dants in both death and non-death-eligible cases ar

e concerned about, and weigh,

their chances at trial. Psychological factors and personality traits ar

e also influential,

but individual-specific factors that influence one defendant to plead or go to trial may

not influence the next. Pr

osecutors speculated that the fairness of the plea offer and

the defendant’

s belief in his or her attorney were important factors in non-death-eli-

PLEA BARGAINING AND THE DEATH PENALTY: AN EXPLORATORY STUDY 323

gible cases. Generally, prosecutors noted considerable variation in the factors regard-

ing both death and non-death-eligible cases.

SUMMARY AND CONCLUSIONS

Given the punishment at stake and the expense of a trial, the incentives for defendants

to plead guilty are greater in death-eligible cases than in noncapital murder cases. The

death penalty is a major tool at the disposal of the prosecutor, and it has been suggest-

ed that prosecutors use the death penalty as leverage to induce a defendant to forgo

the constitutional right to trial by jury. In such situations, the state benefits by secur-

ing a plea to a higher sentence than might otherwise be obtained and by saving the

cost of a trial, particularly that of a death penalty murder trial, while the defense bene-

fits from the certainty of knowing the defendant will not be sentenced to die.

The findings here suggest, not surprisingly, that the death penalty is a plea-bar-

gaining tool. A majority of defense attorneys in this sample felt that the death penal-

ty is used as leverage. While most prosecutors said they do not use the death penalty

in this way, they suggested that others likely do so and illustrated their recognition of

the power of death in obtaining guilty pleas. Even if prosecutors do not benefit from

the use of explicit threats to use the death penalty, they benefit from the perception

of threat, as defense attorneys are averse to risking a trial in a case with the potential

that it will be pursued as a capital case. Defense attorneys are likely to initiate pleas

in death-eligible cases and to do so at the earliest stages of the case. Their clients

accepted pleas to sentences that would, in noncapital cases, not be considered; the

perceived severity of life without parole changes when that sanction is compared with

the alternative of death. For some defendants, the threat of death may be immateri-

al, but for others it is the most important factor in their decision to plead guilty.

There are important costs and benefits to weigh in plea bargaining, especially

in situations where the defendant’s life is at stake. Adherents to the due-process

model point out the costs to the benefit of efficiency, namely, defendants’ waiver of

their rights to defend themselves and to have the case against them presented before

an impartial judge and jury. These fundamental principles suggest that, while the

death penalty may act as a tool in processing cases efficiently and cost-effectively,

there are ethical and potentially human costs to consider in using the death penalty

as leverage.

jsj

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