Let’s suppose that Suzy and Bobby had a business together, which they’re liquidating. They have to negotiate how they’ll split the business assets, and if they can’t reach an agreement, then they’ll have to go to trial.
Just one thing: If they go to trial, there’s a good chance that the judge is going to have Suzy put to death. There’s no chance Bobby will be put to death; only Suzy faces that possibility.
In that situation, I’d be willing to bet that Bobby walks away with most of the company assets. You can’t have a fair negotiation when one of the negotiating parties faces death if the negotiations fall through.
Daniel De Groot argues that the death penalty actually makes false confessions more likely, by giving police and prosecutors an unfair negotiating tactic: threaten suspects with death. Quoting Derek Tice, who confessed to a murder he almost certainly didn’t commit:
DEREK TICE: At least every, I’d say, 30 seconds [Police Detective] Ford was saying, “You keep saying you weren’t there, you keep lying to us, you’re going to die. You’re going to get the needle. How does it feel to die?” And after the nine hours, my thinking was my only options are tell him a lie, tell him what he wants to hear and live, or keep telling the truth and die.
Furthermore, the death penalty is such a strong negotiating technique, it can be used not just to induce false confessions but also false accusations:
MIKE FASANARO, ATTORNEY: [My client] Joe was facing the death penalty. The commonwealth approached me and asked me whether or not he might be interested in testifying on behalf of the commonwealth. In return, they would take the death penalty off the case, off the table. I approached Mr. Dick about it. I approached his parents about it. Based upon the evidence, based upon the personality of the client that I had, I considered that if we went to trial, the death penalty was a legitimate possibility.
You can’t blame the death penalty alone — venal and corrupt police, district attorneys who care more about being tough than serving justice, incompetent and overworked defense attorneys, and a justice system whose incentives all point in the wrong direction all contribute to false convictions. But it’s clear that the presence of the death penalty makes all other problems worse, by crippling the ability of defendants to fully fight for their own cases — just as Suzy, in my example, will not be able to strongly negotiate for her fair share of her business.
The particular case De Groot is discussing is pretty damn outrageous; I’d recommend going over and reading his post.
Ironically, though the death penalty almost certainly makes wrongful convictions more likely, it also makes their reversal more likely. The post-conviction procedural safeguards we have for folks on death row far exceed those for someone sentenced to life. There was an interesting story a little while back about a Louisiana murder convict whose story fit the typical profile of a bad conviction, but because he was sentenced to life instead of death, his appeals options were sharply limited (not to mention his ability to access top pro bono legal talent, which focuses heavily on death row inmates).
I can dig that. I would say not only the death penalty but also in situations in which there is a huge punishment (like a long sentence) hanging over your head. You may not have done the crime but I can’t blame people for weighing the idea of pleaing guilty to a lesser charge (and a smaller sentence) against going to trial to prove one’s innocence but knowing that a conviction would lead to a very long sentence.
You see it on cop shows all the time. “Cop a plea to this misdemonor or take your chances at trial.”
I share the concern about injustice, but I’m not sure the logic holds up.
Would Suzie be more likely to fight vigorously in the negotiation if, rather than death, the possible penalty was life in prison? Thought experiment: the death penalty is abolished. Now rewrite your post with “life in prison” replacing “death”. Does anything change in your logic or in the consequences? I don’t think anything does. Suzie still caves to avoid the penalty.
The difficulty with the situation is that there is a huge power imbalance between the people negotiating, not that there is a death penalty on the table. I’m just as likely to rat out my co-conspirators (real or fictitious) to avoid life in prison as death. Yes, the penalty is worse, but once I’m motivated to follow a behavior, additional intensity of the penalty will not change the binary of my behavior; there’s some minimum level of “persuasiveness” the state’s side of the negotiation needs to have to get me to do [x], and that level of persuasiveness will be met with much lower penalties than death.
This really isn’t a very persuasive argument.
Um, Robert?
If you’re in prison for life, you can still work on exculpating yourself.
If you’re dead, well, not so much.
I think we could probably agree to draw one of those bright lines across this particular slippery slope.
I’m not saying that there’s no difference in the two sentences, Kip, I’m saying there’s not much difference in the leverage it provides cop and prosecutors. In the context of the 11-hour interrogation and psychological torture, do you think there’s really a huge variation in effectiveness if the beefy cop yelling in your ear is yelling “the needle!” versus “life in prison! your family will starve!”?
There’s a difference between having a teacup of water poured on your head, and having a thousand gallons of water poured on your head…but if you’re treading water in the middle of the ocean in a hurricane either way, the difference isn’t going to make a difference in outcome.
In other words, Amp is saying that the problem is you can’t have a fair negotiation when one party has death hanging over them. And that’s true.
But the thing is, you can’t have a fair negotiation when one party has life imprisonment hanging over them, either. The negotiation is innately unfair; the exact nature of the horrible consequence one party can impose on the other is secondary at best to the underlying inequality in the negotiation. Accused people are never going to be able to negotiate “fairly” with the state.
So while there are a lot of good arguments against the death penalty (I’m leaning more and more against it at this stage of my life), “it’s making the negotiations unfair” isn’t one of them. The negotiations can’t be fair; their unfairness is structural.
It’s not an all-or-nothing proposition, Robert. I agree that the negotiation is structurally unfair, but the death penalty makes it more unfair.
Or so it seems to me. I’ve never been in the situation (and neither have you, as far as I know), but I think I’d be much more willing to take a chance on getting a life sentence than I would be on getting a death sentence. As Kip points out, if you think you’re innocent, “life in prison” just means “as long as I need to prove my innocence.” Death means never, ever getting to prove your innocence. The threat level is simply higher.
The issue is less the beefy cop yelling in my ear — at that stage of things, they’ll keep me awake and locked up for 10, 20 hours, and by the end of it I’ll confess to anything and what the threat is may not matter much. But weeks or months after that, when I’ve slept and I’m being advised by my lawyer what to do, I do think that the death penalty is not just more threatening but MUCH more threatening than a life sentence.
But there’s no way to prove it one way or the other.
Well, actually, there is one way — we could run an experiment on undergraduates. That would be sick, cruel and wrong, but it would settle the matter.
Alternatively, maybe someone could check to see if false convictions happen more in death penalty states. But even if they did, that wouldn’t prove causation, only correlation.
That sounds boring and like work, but the torturing undergraduate thing would be fun. Let’s do that.
Have you read Prof. Langbein’s law review article “Torture and Plea Bargaining”?
http://www.judicialstudies.unr.edu/JS_Summer09/JSP_Week_4/JS710Wk4.LangbeinTorandPleaBargtxt.pdf
While one of the cases cited is a death penalty case, I’ve also seen it argued in other law review articles, which I unfortunately couldn’t find using google (and I currently do not have access to lexis or westlaw) that the inherent power imbalance and the threat of a really long sentence produce the same result and might as well be torture given the likelihood of false confessions. (e.g. I could do the two years they were offering but not the maximum 15 year sentence)
To be fair, plea bargaining can also result in the opposite result when career criminals caught in the act will ask police for an attorney and an ADA to be present and commence clearing open cases in return for sentencing reductions and recommendations and concurrent sentencing.
O/T, but I want the “Lego Guillotine” play set more than anything in the world, ever. It’s like the Lego version of these playmobil sets.
Thank you! I’ve been waiting and waiting for someone to comment on the awesomeness of the image I found.
I worked as an attorney in Cook County, Illinois. I witnessed State’s Attorneys that were willing to make false accusations just to secure convictions. They did not care if an innocent man was convicted and his life went to drain, the convictions were the only things that matter. The justice was a secondary concern and in some cases it did not matter at all. I spoke with a federal judge and he stated that he never had a cop testifying in his court that would not lie!!!