The Use of Life and Death as Tools in Plea Bargaining

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 murder is life without parole are used to explore the role of the death penalty as leverage in plea bargaining, 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.