Plea Deals and the Death Penalty

And Also: Meanwhile in California and Nebraska.

Of course, the agents of the State may not produce a plea by actual or threatened physical harm or by mental coercion overbearing the will of the defendant. But nothing of the sort is claimed in this case; nor is there evidence that Brady was so gripped by fear of the death penalty or hope of leniency that he did not or could not, with the help of counsel, rationally weigh the advantages of going to trial against the advantages of pleading guilty.

Such is the current law of the land though in more narrow cases the system in place might be deemed to be coercive (e.g., a previous case where a jury was needed, thus a plea would avoid the death penalty, was distinguished), including under state law (such a case struck down, never for it to return or ever be used, the recent NY death penalty statute). Compare this to a statement made in Justice Marshall's concurring opinion in Furman v. Georgia (which cites the distinguished case with clarification):

If the death penalty is used to encourage guilty pleas and thus to deter suspects from exercising their rights under the Sixth Amendment to jury trials, it is unconstitutional. United States v. Jackson [citation]. Its elimination would do little to impair the State's bargaining position in criminal cases, since life imprisonment remains a severe sanction which can be used as leverage for bargaining for pleas or confessions in exchange either for charges of lesser offenses or recommendations of leniency.

How "little" this would be is debatable. There is evidence, if open to dispute, the death penalty is largely in place now to encourage guilty pleas, which might in the long run save money over the alternative.  Mixed evidence (e.g., note how non-death penalty states survive somehow) is problematic even without noting the death penalty is problematic for various reasons at any rate. There are certain things -- like torture -- that are not right even if they are on some level pragmatically useful. 

And, encouraging plea bargains in this fashion has its own problems.  Plea bargains will always in some fashion exist, but when they pressure people to waive other rights and the pressure here is death, it is particularly something that we should be wary about. Pleas are never really totally without some coercion; it is a matter of scope. Death is different.  Realizing criminal justice is not just some purity game, that sometimes bad actors will benefit from some degree of horse trading (flagged in an article), the coercion present here is still troubling.  Granting some value, plea bargains are not cost-free in this context.

The case for the death penalty needs to be a lot more in equipoise for this issue to decide it. And, even then, it really doesn't.