Thursday, September 13, 2012
Sherod Thaxton (University of Chicago Law School) has posted Leveraging Death (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:
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 dataset 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, but it also has important 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.