Release Date:  February 25, 2009
Contact:  Michael Rushford
(916) 446-0345

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Prior Studies Fail to Account for Savings from Guilty Pleas with Life Sentences

Legislatures expecting a large savings in trial costs from repealing the death penalty may be in for a disappointment, according to a study released today by the Sacramento-based Criminal Justice Legal Foundation.  The most widely cited estimates ignore or minimize an important cost-saving effect of having the death penalty available.

In states where the death penalty is the maximum punishment, a larger number of murder defendants are willing to plead guilty and receive a life sentence.  The greater cost of trials where the prosecution does seek the death penalty is offset, at least in part, by the savings from avoiding trial altogether in cases where the defendant pleads guilty.  Although this effect is well known to people working in the field, there appears to be no prior study to determine the actual size of this effect.

An example of the plea bargaining effect occurred two weeks ago in Navarro County, Texas.  Shaun Earl Arender confessed to the sexual assault and murder of six-year-old Hanna Mack and was sentenced to life in prison without the possibility of parole in return for avoiding the death penalty.  If Texas did not have the death penalty, this case would almost certainly have gone to trial.  Sentencing expert Douglas Berman of Ohio State University notes on his blog, “I think an important and underexamined aspect of the death penalty is its impact on plea bargaining and other pre-trial aspects of the investigation and prosecution of horrible murders.”

The study released today, The Death Penalty and Plea Bargaining of Life Sentences, analyzed data gathered by the U.S. Bureau of Justice Statistics from 33 large urban counties.  The study examined how many of the murder cases were resolved by guilty plea, how many went to trial, and how many resulted in a sentence of at least 20 years.

In states with the death penalty, the average county obtained sentences of 20 years or more in 50.7% of cases where the defendant was charged with murder and convicted of murder or voluntary manslaughter. These sentences were obtained through a guilty plea in 18.9% of the cases.  In states without the death penalty, sentences of 20 years or more were obtained in 40.5% of such cases, but only 5.0% of those were guilty pleas, a little over a quarter of the number in the death penalty states.

The difference in the two groups of counties is “statistically significant,” meaning it is highly unlikely to have happened at random.  A correlational study such as this cannot definitively prove that the death penalty is the cause of the difference observed, but no other explanation is apparent.

This result is consistent with a 2006 study by economist Ilyana Kuziemko, then at Harvard and now at Princeton.  She found that the availability of the death penalty did not have a large effect on the total number of cases plea bargained, but without the death penalty more defendants obtained reductions to lower degrees of homicide.

Opponents of the death penalty contend that life imprisonment will serve just as well to incapacitate convicted murderers.  (The separate question of deterrence remains hotly disputed.)  However, incapacitation will certainly be reduced and more innocent people will be murdered if fewer defendants are actually sentenced to life in prison.  Without the threat of the death penalty, either many more cases must go to trial or many more murderers will be released in the future.

In a recent, widely cited study of death penalty costs in Maryland by the Urban Institute, one-third of the cases eligible for the death penalty were resolved by a guilty plea.  Yet the study’s estimate of costs makes no allowance for the possibility that percentage would drop sharply if the death penalty were repealed.  Study commission reports in New Jersey and California have similarly ignored the issue or made inadequate allowance for it.

“The fact that these studies have omitted an important and obvious factor raises serious questions about their credibility,” said CJLF’s Legal Director Kent Scheidegger, the author of the study.  “What else did they leave out?”  To take just one example, both the Maryland and California studies calculate death row imprisonment costs on the assumption that inmates sentenced to death will live out their natural lives in prison.  With an effective death penalty system executing its judgments in an average of five years, the imprisonment costs would be dramatically lower than these estimates.

“Repeal advocates are promising legislatures a pot of gold,” said Scheidegger.  “That pot may be as elusive as the mythical one at the end of the rainbow, or it may be purchased with the lives of innocent people.”

The working paper for this study may be found on CJLF’s web site at