The Threat of the Death Penalty: Efficiency vs. Accuracy

Grits asks, “Would you confess to a crime you didn’t commit to save your life?” and notes that in Austin, Texas in 1988 Christopher Ochoa did exactly that – then plead to a life sentence and testified against his ‘friend’ Richard Danzinger, who also happened to be innocent. (Danzinger’s jury took 8 minutes to sentence him to life as well. Unfortunately, after several suicide attempts but before eventual exoneration, he was beaten within an inch of his life in prison and suffered tremendous injuries.)

Noting an article profiling now practicing criminal defense lawyer Ochoa in today’s Dallas Morning News, Grits points out that Doug Berman of Sentencing Law and Policy has previously praised the death penalty as en effective plea bargaining tool for law enforcement and prosecutors:

Doc Berman over at the Sentencing Law and Policy blogs says the death penalty is an "effective plea bargaining tool," but to me here's an example of what he means in practice. If you threaten to kill somebody, they may admit to anything, but I'm not sure that's so "effective" as it just makes wrongful confessions more likely.

Holy cow. How could I have missed that one of my favorite bloggers was so off the mark? Here’s a clip from Berman’s original post on the subject, “Another example of the death penalty as an effective plea bargaining tool”:

It seems fair to assume that the federal government would not have been able to secure this plea deal were it not for the threat of the death penalty.  (Other high profile cases with similar "death-defying" plea bargains include the Unibomber and the Green River Killer.)  Though many might debate whether justice has been served by this plea deal, no one can question whether justice was efficient.

Berman is referencing a 2007 plea deal between a ‘drug kingpin’ and the Feds, where the defendant plead to life to avoid the death penalty. And I’m not sure what he meant by debate about “whether justice has been served by this plea deal”. Maybe he meant justice for this crime cried out for the death penalty, and therefore some could be unhappy with it.

But to the extent that the phrase questions the accuracy of the conviction, this logic makes no sense to me at all. Threatening to kill someone if they don’t [fill-in-the-blank] is very likely to produce, well, to produce [fill-in-the-blank]. And if achieving [fill-in-the-blank] is of the utmost importance, than threatening to kill someone to achieve it is likely to be an extremely efficient way of doing just that.

The problem with this logic however, is that while in this scenario you can fill in the blank with the concept of ‘convicting someone of this crime,’ you can not fill in the blank with the concept of ‘convicting the right person of this crime’. More specifically, you can only convict the person you threaten with the death penalty; you do nothing to make certain that you threaten the right person.

Efficiency is the wrong measure of any prosecution. Certainly accuracy should be the hallmark of any capital case. I’m pretty sure the Spanish Inquisition got high marks for efficiency when it came to extracting confessions.

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Austin Criminal Defense Lawyer - March 3, 2008 5:21 PM
From the end of a post by Houston Defense Lawyer Mark Bennett:Astute prosecutorial readers will note that in the last paragraph I referred to "the government" rather than "the State." This is another illustration of the point. "...
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Michael - February 26, 2008 9:55 PM

Jamie:

I'm on dangling modifier patrol tonight. Which one of your favorite bloggers was off the mark -- grits, or Berman? I'm assuming the latter, based on the context; in that case, I agree with you.

Jamie - February 27, 2008 8:19 AM

Michael:

Thanks for stopping by (again).

Yeah, I meant I disagreed with Berman, and agreed w Grits.

Need to go back and indent Berman's quote while I'm at it.

Shows me the problem with writing a post one day, then coming back and finishing/posting it the next...

Jamie

tramadol saturday delivery available - August 2, 2009 2:07 PM

bVgvi2 Great site. Keep doing.

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