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Sentencing Law and Policy
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Debating the death penalty as bargaining chip

By Douglas Berman

I have previously noted (such as in this post) that I think the biggest impact of having (or not having) the death penalty in a jurisdiction may be its possible impact charging and plea bargaining practices.  Especially because this aspect of capital punishment has received relatively little attention, I am pleased to see this new AP article, entitled “Strategy changing on death penalty,” discussing the pros and cons of the use of the death penalty as a bargaining chip by various Washington State prosecutors’ offices.  (Hat tip: ODPI)  Here is how it begins:

In an interview early this year, Pierce County Prosecutor Gerry Horne called Washington state’s death penalty law a farce, and he suggested it is so ineffective that the Legislature should consider getting rid of it.  When time came to find 12-year-old Zina Linnik, though, he was glad to have it.

Four days after the Tacoma girl disappeared, Horne — believing time was running out to find her alive — promised not to seek the death penalty against the suspect, Terapon Dang Adhahn, if he told detectives where she was.  Adhahn agreed, leading them to her body in East Pierce County. Without the death penalty, “We would have no leverage in some instances,” Horne said last week. “It’s nice to have that tool in your kit.”

Horne’s attitude reflects the evolving considerations prosecutors in Washington weigh when dealing with potential capital cases.  For generations, prosecutors refused to use the death penalty as a “bargaining chip” in obtaining guilty pleas.  Agreements to spare serial killers Robert Yates in Spokane County and Gary Ridgway in King County in exchange for confessions or help finding remains opened the door to some extent.

I would be very eager to hear —  both from death penalty proponents and death penalty opponents — what they think about using the death penalty as a bargaining chip.  Of course, all sorts of nin-capital punishments are used as bargaining chips in the criminal justice system, but there may be reasons that both proponents and opponents might think in this arena death should be different.