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Post-Trial Plea Bargaining in Capital Cases: Using Conditional Clemency to Remove Weak Cases from Death Row


Adam M. Gershowitz


December 14, 2016

Plea bargaining accounts for over ninety percent of criminal convictions and it dominates the American criminal justice system. Yet, once a defendant is convicted, bargaining almost completely disappears from the system. Even though years of litigation are on the horizon, there is nearly no bargaining in the appellate and habeas corpus process. There are two reasons for this. First, prosecutors and courts typically lack the power to alter a sentence that has already been imposed. Second, even if prosecutors had the authority to negotiate following a conviction, they would have little incentive to do so. Affirmance rates in ordinary criminal cases approach ninety-five percent in many jurisdictions. Because the government has little incentive to bargain, defendants slowly churn their way through the formal appellate and habeas process.

The lack of post-trial bargaining makes perfect sense in ordinary criminal cases. It does not make as much sense in death-penalty cases, however. Death sentences are followed by decades of litigation. And, more importantly, challenges to death sentences are often successful. Capital cases are reversed at alarming rates, and re-trials typically follow the reversals. Faced with years of appellate litigation that it might not win, and the prospect of a re-trial and another slew of appeals, the State should have an incentive to bargain in its weakest cases. And the convicted individual faced with a death sentence likely has an even stronger incentive to bargain.

This Article argues that governors should not simply think about clemency as a tool to prevent morally questionable executions. Rather, governors should regularly exercise their commutation power as a form of plea bargaining to clear weak cases out of the system. In exchange for inmates foregoing further appeals, governors could commute death sentences to terms of imprisonment. Clemency bargaining fits squarely within governors’ unreviewable commutation power and would save tens of millions of dollars by ending decades of unruly litigation.