University of Mississippi alumnus and attorney Doug Wright Jr. recently made a gift to the university's Robert C. Khayat School of Law, honoring his father and grandfather. The Wright Family Scholarship in Law Endowment also honors the late Judge Fred Pershing Wright. Photo by Robert Jordan/Ole Miss Digital Imaging Services
Law professor’s journal article examines constitutionality of prosecutors’ tactic
By Clara Turnage
Given the choice between a death sentence and a plea deal, many defendants—innocent or not—choose to plead guilty, even if the cost is life in prison without the option of parole, said William Berry, associate dean for research and Montague Professor of Law at the University of Mississippi School of Law.
Plea bargaining with death on the table puts defendants at an unfair disadvantage, Berry argues in a recent paper in the Ohio State Journal of Criminal Law. It may also violate their constitutional rights.
“‘I’m risking death,’ is different from ‘I’m risking a larger sentence,'” Berry said. “The death penalty is the most severe punishment in the justice system, and it’s irreversible. We have to make sure we get it right.”
Plea bargaining has become the most common way to resolve criminal cases, with roughly 98% of criminal cases in the federal courts ending with a plea bargain, according to the American Bar Association Criminal Justice Section’s 2023 report.
The case for plea bargaining is a simple one: A guilty plea erases the cost of a jury trial and expedites the process, Berry said.
“The advantage of a plea bargain system is it’s very efficient,” he said. “If every criminal defendant said, ‘I want a trial,’ the justice system would grind to a halt. There would be too many cases. “
Criticisms of plea bargaining have gained popularity in the last decade, with many alleging that such deals wrongly encourage guilty pleas. Some point to numerous mistakes the courts have made: two-thirds of capital cases are reversed on appeal and since 1973, 195 death-row prisoners have been exonerated of all charges.
Coercing a defendant to plead guilty to avoid the threat of death bypasses metrics for the government to prove guilt, leaving the justice system more at risk of imprisoning the wrong person, Berry said. The trade-off for plea bargaining’s efficiency in many capital cases is the possible miscarriage of justice.
Berry argues that plea bargaining can infringe on a defendant’s Fifth and Sixth Amendment rights. The Fifth Amendment, the right to abstain from self-incrimination, guarantees that the accused does not have to prove their innocence; rather, the government must prove that they are guilty. The Sixth Amendment ensures the right to a jury trial.
Plea bargaining, however, asks a defendant to choose to give up their right to a trial and incriminate themselves, removing the court’s obligation to prove guilt, on the promise of a lighter sentence or a lesser charge, Berry said.
In many criminal cases, a variety of charges can be applied to a single crime, he said. The prosecutor decides which charges best apply to a violation of the law, with the judge and jury ultimately determining which charges and punishments fit the crime. In a plea bargain, however, the prosecutor has the final say and sentencing power.
“It gives the prosecutor too much power,” Berry said. “If the prosecutor is deciding the plea, what’s to stop them from saying, ‘I’ll charge you with a more serious crime unless you plead out’?”
While the violation of the Fifth and Sixth Amendments could be an argument against any plea-bargaining arrangement, the practice in capital cases is specifically at risk of violating a defendant’s Eighth Amendment right as well, Berry said.
The Eighth Amendment prohibits cruel and unusual punishment. Berry argued that the threat of the death penalty for a crime that may or may not result in capital punishment could also be a violation of this amendment.
Since 1996, when 315 people were sentenced to death, application of the death penalty has steadily decreased, according to the Death Penalty Information Center. In 2022, only 18 people across the United States were assigned to death row.
Several reasons account for the decrease, Berry said. Twenty-three states have ruled the death penalty illegal and three have placed moratoriums on executions. But the primary reason is the immense cost associated with the practice, he said. Besides the cost of the execution, the state must account for a decade’s worth of appeals beforehand.
The costs of the death penalty far exceed those of a life sentence, with costs reaching several million dollars in most cases, he said.
Because of these costs, most prosecutors are hesitant to seek the death penalty, but that doesn’t stop them from using it to pressure a defendant into a plea deal, he said.
“My paper is essentially arguing that you shouldn’t be able to plead out in capital cases because what you have a lot of prosecutors doing is charging defendants with the death penalty to get them to commit to a life without parole sentence,” he said.
Berry recommends stricter oversight of death penalty plea bargaining procedures, but said he fears that the Supreme Court and legislatures won’t take this action.
“I don’t think the courts are going to do anything to fix this,” he said. “I don’t think legislators are going to do anything to fix this. But I would like to encourage all these things.”
Berry’s article is part of a symposium on plea bargaining, where he joined top scholars and commentators from across the country. Carissa Hessick, a professor at the University of North Carolina School of Law, organized the symposium as a follow-up to her recent book, Punishment Without Trial: Why Plea Bargaining is a Bad Deal.
