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August 9, 2012

Is anyone eager to lament the death penalty as bargaining chip in Tucson shooting?

The question in the title of this post is prompted by this effective commentary piece by Debra J. Saunders, which is headlined "The Death Penalty and Jared Lee Loughner."  Here are excerpts:

Jared Lee Loughner pleaded guilty Tuesday to 19 counts involving a 2011 shooting in Tucson, Ariz., that left six dead and 13 others, including then-Rep. Gabrielle Giffords, wounded. As part of the deal, Loughner will receive a sentence of life without parole. Victims' families have been spared the rigors of a trial, and prosecutors can be sure that Loughner will never again endanger the general public. Thank the federal death penalty, which applied because Loughner shot people at a federally protected political event.

Defense attorney Gerald L. Shargel wrote on The Daily Beast that though it would have been a steep climb, Loughner could have won an insanity defense given his "long and tortured history of mental illness."  What could prosecutors have done to prevent litigation that would have spanned decades?  "Obviously, the prosecutors have to give something up in order to get the plea," Shargel told me.  Not that he sees this as a game, but "the only card to play was taking the death penalty off the table."

Giffords and her husband, Mark Kelly, issued a statement in support of the outcome.  "We don't speak for all of the victims or their families, but Gabby and I are satisfied with this plea agreement. ... Avoiding a trial will allow us -- and we hope the whole Southern Arizona community -- to continue with our recovery and move forward with our lives."

Death penalty opponents often argue that eliminating capital punishment in favor of life without parole would provide swifter resolution for victims' families, who would not have to endure years of appeals regarding pending executions.  Kent Scheidegger of the law-and-order Criminal Justice Legal Foundation says he likes swift resolution, too, but "it only happens when the death penalty's available."...

In the end, while Loughner was too mentally impaired to rate capital punishment, he also was too culpable to escape sure punishment for a well-planned killing spree.  Prosecutors took the death penalty off the table, and Loughner agreed not to appeal the results. Justice will be served.

Robert Hirschhorn, an attorney and jury consultant, does not support the death penalty, but he agreed that without it, there would have been no deal.  "You really want to use the death penalty as a bargaining chip?" Hirschhorn asked.

I don't see Giffords or Kelly complaining.

Very few folks, and especially the abolitionist community, are keen to celebrate or even acknowledge the plea bargaining benefits that the availability of the death penalty may provide in cases like the Tucson shooting (or the Unibomber case or for the Green River Killer or for so many other cases in which a plea to an LWOP sentence would not even be seriously considered by a defendant and his attorneys if death was not potentially on the table).

I am pleased that this commentary not only highlights, but actively praises, the role that the death penalty played in what seems like a just and effective (and certainly efficient) resolution of this high-profile mass murder case.  But maybe others, especially those in the abolitionist community, have a different view on this case and the role of the death penalty in its resolution.  Thus the question in the title of post, for which I welcome responses from all possible perspectives.

UPDATE after 17 comments:  A few commentors seem to view this post (wrongly) as asserting that the death penalty is always justified in order to always encourage guilty pleas in murder cases.  That is not the point of this post nor a claim I wish to make generally.  Rather, I mean via this post to wonder whether anyone is deeply troubled in the Loughner in particular --- or in other mass murder cases in which factual guilt is not reasonably in doubt --- that the death penalty has helped achieve what would appear to be a just and effective (and certainly efficient) resolution of a case that could otherwise have dragged on in court for decades (and cost taxpayers huge sums and give victims no real closure). 

In other words, this post does not ask whether the death penalty might sometimes be an unjust or misguided plea bargaining chip in some other settings, but rather asks if anyone is truly and deeply troubled that in the Tucson case the death penalty ended up playing this role.

August 9, 2012 at 10:06 AM | Permalink

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Posted by: justme | Aug 9, 2012 10:09:39 AM

One concern I have is that this sort of thing undermines the claim that the death penalty is reserved for the "worst of the worst." Surely an unstable mass murderer is the worst sort of criminal, the kind most likely to kill again in prison, etc., but he does not get the death penalty. Thus the death penalty is reserved for less heinous killers whose lower-profile crimes reduce the pressure on prosecutors to get a LWOP plea quickly.

Obviously this is debatable - Loughner probably has a stronger insanity defense than many murderers, for one thing - but I do find it hard to see why a getaway driver in a robbery gone wrong, etc., "deserves" death more than Loughner does.

Posted by: Matt | Aug 9, 2012 10:16:53 AM

Matt --

That the DP is not given to everyone who deserves it is scarcely a reason to refrain from giving it to those whose behavior has made it plain that they do.

Posted by: Bill Otis | Aug 9, 2012 10:25:39 AM

Strengthening the government's hand in plea bargaining does produce longer sentences with less judicial oversight, but I'd be slow to describe this as an obvious social good; work on strategic false confessions and the diminishing returns of long duration sentences come to mind. Even in this case, one would have to ask
1.) Whether bargaining life without parole down to 30 years (or similar) would have done less to advance the state's interest.
2.) Whether Loughner *should* have prevailed on an insanity plea.

I don't have strong views on either issue, but am less sure than Saunders that the answers are yes and no respectively.

Psychologist and law student

Posted by: Matthew | Aug 9, 2012 10:29:53 AM

Sure Doug,

The death penalty forces scores of legally (e.g. some people with good self defense cases) in sometimes even factually innocent people ( e.g. didn't kill) to plead guilty. That's just unconscionable.

Posted by: Poirot | Aug 9, 2012 10:32:53 AM

I practice in Michigan, which abolished the death penalty in 1846. Insanity defenses usaully fail when attempted, especially in heinous offenses such as this one, and would probably result in a verdict of gullty-but-mentally-ill, which requires a prison sentence instead of hospitalization anyway. Even if found not guilty by reason of insanity, in Michigan, he'd probably never get out of the mental hospital. Sentencing guidelines for this incident probably require a mnimum sentence of at least 45 years, with no time off for good behavior, or parolable life, with parole theoretically possible after 15 years, but in pracital terms, unlikely ever to be granted. I'd expect a plea to second-degree murder, with some counts getting a "life" sentence, with parole theoretically possible, and some getting terms of years with a minimum of at least 50 or 60 years, with no parole possible until the full minimum has been served. Michigan says a prisoner serving a "term-of-years" minimum has to have a reasonable chance to meet with the parole board during his lifetime, but also holds that an inmate has a reasonable chance of living to be 93 years old. That's probably the best result any attorney could hope for here in a non-death-penalty jurisdiction. The alternative would be simply to plead to first-degree murder, for life without the possibility of parole, but there's no real gain for the defense in that.

Posted by: Greg Jones | Aug 9, 2012 11:10:50 AM

In Europe the name of the game is TORTURE. Confess or else. In Italy is not possible to blackmail an accused, so Foxy Noxy escaped punishment

Posted by: Claudio Giusti | Aug 9, 2012 11:14:53 AM

This blog - and it's host - are just sad.

Lots of logic. Absolutely no real wisdom.

Posted by: Sandy | Aug 9, 2012 11:37:14 AM

The death penalty is not necessary to get defendants to plead to life without parole. Defendants plead guilty to LWOP without threat of death all the time. New Jersey abolished the death penalty and has seen no difference in how capital cases are prosecuted. This theory that the threat of death is necessary to force pleas to LWOP or to the most aggravated non-death murder charge the jurisdiction allows is simply incorrect, and I have never seen its advocates even attempt to look at the matter empirically.

The decision to plead to any serious crime, particularly aggravated murder, is never wholly rational. Assuming Loughner applied game theory and compared his odds of various verdicts after trial with the guaranteed outcome of life without parole is a seriously flawed assumption. Loughner may have pled because he does not want a trial; he may have pled because now that he is relatively competent he feels true remorse; he may have pled because life in general population is better than life in a Bureau of Prisons insanity ward; he may have pled because he wants to stop taking his meds and going into general population is the best way to do that; he may have pled because he wants to spare his family the publicity of a trial; he may have pled because the voices in his head told him to plead.

Posted by: Paul | Aug 9, 2012 11:40:54 AM

keep up the awesome blog, i enjoy reading it!

Posted by: Arizona criminal lawyer | Aug 9, 2012 12:34:46 PM

Matt, Loughner is definitely severely schizophrenic and possibly McNaughton insane, so he is not necessarily the "worst of the worst." That determination involves both aggravating and mitigating circumstance, and while this crime is certainly horrific, full-blown schizophrenia is among the strongest mitigating circumstances.

Getaway car drivers caught up in the felony murder rule, with no personal intent to kill or reckless disregard of human life, have not been eligible for the death penalty since 1982.

Guilty pleas to life or very long sentences are, in fact, substantially less common in jurisdictions without the death penalty.

Posted by: Kent Scheidegger | Aug 9, 2012 1:14:10 PM

Penalties and punishment are strategies, not objectives. What were the objectives in this case? I believe the discussion here gets the cart before the horse.

Posted by: Tom McGee | Aug 9, 2012 1:23:49 PM

So, Professor Berman, the argument is that we should have the death penalty - and the executions that go along with having it - to maximize an effective plea bargaining system?

I suspect it would be justified - for you - to bargain with the devil as well, if it suited your ends.

Posted by: Samuel | Aug 9, 2012 2:01:33 PM

Samuel --

"So, Professor Berman, the argument is that we should have the death penalty - and the executions that go along with having it - to maximize an effective plea bargaining system?"

That is ONE argument, yes, and relevant when we hear the frequent claim that the system is overloaded, delay-prone and too expensive. But Doug has never put it forward as the only argument (nor has any other serious person). Indeed, just after the Aurora massacre, Doug noted that there are some murders so horrible and gruesome that the DP strikes many people as the only just response.

Doug's sense of it was borne out in a recent Business Roundtable/Pepperdine University poll about support in California for abolishing the DP. Before the massacre, the abolition was losing, but only by a scant two points. After the massacre, abolition was getting blown out by 20 points.

When the reality strikes home of what some of the defense bar's favorite clients are capable of, normal people react. The reaction now has rendered Prop 34, the abolition measure, a dead letter.

Posted by: Bill Otis | Aug 9, 2012 2:15:31 PM

Sandy --

"This blog - and it's host - are just sad. Lots of logic. Absolutely no real wisdom."

You are of course free to enlighten us with your "real wisdom." Just snippy criticism doesn't really move the ball.

Posted by: Bill Otis | Aug 9, 2012 2:24:52 PM

I think LWOP would have been a sufficient chip, and LWP a sufficient sentence.

Posted by: Gray Proctor | Aug 9, 2012 5:54:45 PM

Sandy said, "Lots of logic. Absolutely no real wisdom."

What does that even mean?

Posted by: Stanley Feldman | Aug 9, 2012 7:38:22 PM

Mr. Bill, you actually make a good argument against the DP.

LWOP is acceptable for Loughner but support for the DP jumped 20 points after the "Aurora massacre" but not after Laughner's massacre. Why the difference?

Once again, I say trial by media and Laughner put on a better insanity defense before being found guilty in the court of public opinion (because we knew he was insane; how did we know?). Holmes had a quickly ruled gag order instead and any insanity defense will trickle out slowly.

The victims in the Laughner case were probably less inclined to put an insane person to death. An interesting study would be a compare and contrast in terms of news reporting and poll numbers.

We also have another mass killing since so the study would have to be focused on before the Sikh temple shooting. That case doesn't seem to get equal coverage though so it may not bounce the polls.

Posted by: George | Aug 9, 2012 8:49:51 PM

George --

"LWOP is acceptable for Loughner but support for the DP jumped 20 points [in the recent Pepperdine University poll on Prop 34] after the 'Aurora massacre' but not after Laughner's massacre. Why the difference?"

Because Loughner's massacre occurred in January 2011, before Prop 34 was even close to being on the ballot (or, of course, polled).

Posted by: Bill Otis | Aug 9, 2012 9:17:58 PM

Stanley Feldman --

Good question. I wonder if we'll ever get an answer.

Posted by: Bill Otis | Aug 9, 2012 9:23:40 PM

So, we are going to encourage prosecutors to "stack the charges" to scare defendants into pleading guilty? Prosecutors do it all of the time, sometimes even charging felonies to encourage a plea to a misdemeanor. The problem is that once the defendant is charged with a felony, the implication never goes away that a felony was actually committed, "but the defendant pled guilty to a misdemeanor because he knew he was probably going to be convicted of the felony." Having the death penalty to coerce pleas, is just wrong.

Posted by: Daniel | Aug 10, 2012 12:57:10 AM

OK. That's strange. I came to this thread to make a point only to see that it has already been made by someone else who is also using Daniel as a handle.

I have better grammar than him though...

Posted by: Daniel | Aug 10, 2012 1:45:17 AM

I don't think the death penalty is all that bad, especially when there are guys like James Holmes out there in the world: http://lawblog.legalmatch.com/2012/08/06/alleged-killer-james-holmes-psychiatrist-liable/

Posted by: Deandra MacDonald | Aug 10, 2012 2:26:25 AM

Plea bargaining in general is a charter for miscarriage of justice, wrongful conviction and untruthful evidence-giving against others who may be innocent. It has no place in any justice system that values honesty. The death penalty axe, as dangled here and in other capital cases is of course the most dangerous of all plea-bargaining stunts. Whatever the reasons for the machinations in this particular case, that it was used at all illustrates the absurdity and irrelevance of the death penalty in all cases. It also shows that the US justice system, and the politicians who support it, have no understanding or empathy with those who suffer mental illness, and instead are happy to subject such people to years of cruel and unusual detention for life, or death, without consideration of modern treatments and appropriate environments. The idea of punishing the insane for being insane, or at least severely mentally incompetent for being thus, is offensive to civilized humanity. This issue is certainly most acute in the US of all western nations, though of course it cannot be claimed exclusively a US issue.

Posted by: peter | Aug 10, 2012 4:04:52 AM

When the Innocent Plead Guilty
http://www.innocenceproject.org/Content/When_the_Innocent_Plead_Guilty.php
The 28 individuals listed below plead guilty to crimes they didn’t commit— usually seeking to avoid the potential for a long sentence (or a death sentence). They served a combined total of more than 150 years in prison before they were exonerated:
Phillip Bivens and Bobby Ray Dixon plead guilty to a 1979 Mississippi rape and murder they didn’t commit. After the two men were threatened with the death penalty, they testified against a third innocent defendant, Larry Ruffin, and received life sentences. DNA testing obtained by Innocence Project New Orleans led to the three men’s exonerations in 2010. Sadly, Dixon and Ruffin died before their names were cleared.
Larry Bostic served three years in Florida prison after pleading guilty to a rape he did not commit. He has said he was threatened with a life sentence and coerced to plead guilty by the prosecutor and his court-appointed attorney.

Marcellius Bradford served more than six years in Illinois prison for a murder he didn’t commit. He plead guilty and testified against his co-defendants in exchange for a 12-year sentence. Bradford later said he was threatened with a life sentence and coerced to plead guilty and testify. When DNA testing freed Bradford and his three co-defendants in 2001, it also implicated the two men who actually committed the crime.

Keith Brown falsely confessed and plead guilty to a North Carolina rape in 1993. He was sentenced to 35 years in prison but was freed after DNA proved his innocence in 1997.

John Dixon plead guilty to a rape he didn’t commit and spent 10 years in New Jersey prison before DNA testing proved his innocence. After pleading guilty, he asked the judge to withdraw his plea and hold a trial, but the motion was denied and he was sentenced to 45 years in prison.

Anthony Gray falsely confessed to a Maryland rape after interrogating officers told him that two other men had implicated him. He would plead guilty and serve seven years in prison before DNA testing proved his innocence.

Eugene Henton served 18 months in Texas prison for a 1984 sexual assault he didn’t commit. He plead guilty in exchange for an 18-month sentence and was freed after serving his sentence. Once free, Henton continued to seek DNA testing in his case and finally obtained the tests that proved his innocence in 2006.

Dwayne Jackson served nearly four years in Nevada prisons for a crime he didn’t commit. He plead guilty after DNA tests allegedly tied him to a robbery. In 2010, a database hit from another crime revealed that the sample had been switched at the Las Vegas Metropolitan Police Department Crime Lab, and the evidence from the crime scene actually excluded Jackson.
Kenneth Kagonyera and Robert Wilcoxson spent ten years in North Carolina prisons for murder they did not commit. Kagonyera and Wilcoxson plead guilty in order to avoid life sentences. In 2011, newly tested DNA evidence proved their innocence.
William Kelly plead guilty to third-degree murder for allegedly killing a 25-year-old woman in Dauphin County, Pennsylvania. He served two years in prison before DNA testing linked another man to the killing, as well as other murders, clearing Kelly. He was freed in 1993.
Michael Marshall plead guilty in 2008 to stealing a truck in Georgia after he was identified by an eyewitness. He was sentenced to ten years in prison, but was freed in December 2009 after DNA testing obtained by the Georgia Innocence Project proved his innocence and pointed to the identity of the real perpetrator.
Christopher Ochoa falsely confessed and plead guilty to murder in Texas that he didn’t commit. He testified against his co-defendant to avoid a possible death sentence, and served nearly 12 years in prison before DNA testing led to his exoneration – and also identified the real perpetrator in the case.

James Ochoa plead guilty to a 2005 California carjacking he didn’t commit to avoid a possible sentence of 25 years to life if convicted at trial. Ten months after his conviction, DNA testing proved his innocence and implicated the real perpetrator of the crime.

Steven Phillips was convicted of a string of sexual assaults in Texas in 1982 and 1983 that DNA now shows he didn’t commit. After a jury convicted him of two crimes based on eyewitness misidentification, Phillips plead guilty to nine additional crimes to avoid what amounted to a life sentence. DNA testing finally led to his exoneration – and pointed to the identity of the real perpetrator – 25 years later.
Shainne Sharp and Robert Lee Veal plead guilty to first-degree murder in 1992 and accepted 20-year sentences in order to avoid harsher sentences. The 15-year-old Veal confessed without the presence of his parents or counsel, and Sharp confessed after 21 hours in custody; the two confessions were contradictory. In 2011, the State’s Attorney’s Office dismissed all charges against Veal, Sharp, and the three other men wrongly convicted of the Chicago-area murder: Jonathan Barr, Robert Taylor, and James Harden.
Vincent Thames plead guilty to a 1994 Chicago rape and murder in exchange for 30 years in prison, after seeing three other men—Terrill Swift, Harold Richardson, and Michael Saunders—tried and sentenced to 40 years each for the same crime. In 2011, all four of their convictions were vacated after DNA evidence implicated another man.
Jerry Frank Townsend, a man with severe mental disabilities, falsely confessed and plead guilty to six murders and one rape in Florida in the 1970s and was sentenced to life in prison. He served nearly 22 years before DNA testing led to his exoneration.

David Vasquez served four years in prison for a 1984 Virginia murder he didn’t commit. Vasquez, who is borderline mentally impaired, allegedly made a false admissions of guilt during a police interrogation and plead guilty in exchange for a 35-year sentence. He was exonerated in 1989.
John Kenneth Watkins was exonerated in 2010 when DNA testing obtained by the Arizona Justice Project proved his innocence of a 1993 rape. After four hours of police interrogations, Watkins confessed to a rape he did not commit. He then plead guilty to avoid a potential long sentence and served six years in prison before he was finally cleared.

Arthur Lee Whitfield was charged with two Norfolk, Virginia, rapes in 1981. He was misidentified by both victims and after being convicted of the first rape he plead guilty to the second in exchange for a lighter sentence. He served more than 22 years before DNA testing proved his innocence and led to his freedom.
Thomas Winslow and five others – Joseph White, Ada Taylor, Debra Sheldon, Kathy Gonzalez and James Dean – were convicted in Nebraska in 1989 of a murder they didn’t commit. Five of the six defendants – all except White – plead guilty to the crime. Taylor, Sheldon, Gonzalez and Dean falsely confessed and testified against White at his trial. The six defendants were exonerated when DNA testing conducted in 2008 proved their innocence and pointed to the identity of the actual perpetrator.

Posted by: Claudio Giusti | Aug 10, 2012 4:33:54 AM

"A few commentors seem to view this post (wrongly) as asserting that the death penalty is always justified in order to always encourage guilty pleas in murder cases. That is not the point of this post nor a claim I wish to make generally."

Actually, Doug, those commenters did correctly interpret your body of blog work on that question and you've made exactly that claim quite frequently. In fact, you always seem to think it a particularly clever argument. Why run from it now?

Posted by: Gritsforbreakfast | Aug 10, 2012 7:11:07 AM

peter --

"Plea bargaining in general is a charter for miscarriage of justice, wrongful conviction and untruthful evidence-giving against others who may be innocent. It has no place in any justice system that values honesty."

Then go to trial.

What, don't like that either?

Then do tell us how criminals are to be brought to book.

PS. If, when I was a prosecutor, I had told the defense bar that I would no longer allow plea bargaining, the hue and cry would have been audible on Pluto.

Posted by: Bill Otis | Aug 10, 2012 7:36:31 AM

Grits informs us that not only is Doug Berman a liar, but a coward too, for "running away" from a claim about the utility of the death penalty that, Grits says, Doug has made "quite frequently."

Grits has done many things to impeach his own credibility, but this one has to take the cake. I'll be happy to have any even vaguely normal commenter on this blog make up his own mind about whether Grits or Doug is telling the truth here.

For those who need help, however, it's readily available.

1. On June 22, in this thread:
http://sentencing.typepad.com/sentencing_law_and_policy/2012/06/clemens-counsel-says-client-was-offered-plea-deal-for-probation-term.html

Grits said that a particular defendant in a case he linked had pleaded guilty but in fact was innocent. (The discussion at that point was about whether innocent people are intimidated into saying they're guilty). Grits' claim was false. The defendant in the story he linked never pleaded guilty nor in any other way admitted guilt. He pleaded no contest, which is specifically NOT an admission of guilt. Grits never owned up to this deception.

2. Grits put out a story on his blog that Austin police had stopped him, manhandled him, and pulled weapons on him. This too was a lie. The news account is here, http://www.statesman.com/news/local/police-video-contradicts-bloggers-account-of-tasers-rough-2183449.html

Grits did recant that one, but only after realizing that the cops had a videotape of the incident that they were prepared to release. (He tried to get them not to release it).

3. Grits said that I have backed the idea that incarceration accounts for ALL the decline in crime over the past generation, http://sentencing.typepad.com/sentencing_law_and_policy/2012/01/the-law-and-economics-of-fluctuating-criminal-tendencies.html

I have taken no such position and he knows it. I have said that it is a significant factor, which it is.

4. Grits also said, in discussing my support for the DP, that I support all state killing as inherently good in all circumstances. This claim is not only false, it's preposterous. Not only do I not support any such thing, I seriously doubt ANYONE does. But Grits never retracted or apologized for that ridiculous smear.

In short, Grits is lying about Doug's postion, as he has lied about mine. It appears to be a specialty of his.

Posted by: Bill Otis | Aug 10, 2012 8:33:25 AM

// In short, Grits is lying about Doug's postion, as he has lied about mine. \\~~B. Otis

I agree. Unfortunately, I have now heard two separate democrats on radio support the idea that although the claim that 'Romney is responsible for the death of a woman' is a palpable falsehood, they support its promotion because it works.

"All this was inspired by the principle--which is quite true within itself--that in the big lie
there is always a certain force of credibility; because the broad masses of a nation are
always more easily corrupted in the deeper strata of their emotional nature than
consciously or voluntarily..."~~Mein Kampf

Posted by: Adamakis | Aug 10, 2012 12:26:11 PM

Grits preaching about telling the truth.

Too funny.

His name is nothing more than a punchline.

Posted by: TarlsQtr | Aug 10, 2012 12:36:38 PM

I support the death penalty for reasons that have nothing to do with plea bargaining.

I am opposed to plea bargains for reasons that have nothing to do with the death penalty.

So what I find "especially problematic" is the attempt to mix oil and water. Personally, I detest plea bargains so much that if a consequence of getting rid of them is that it makes it harder to get convictions in a few exceptional cases I'm willing to live with that compromise.

Posted by: Justmeagain | Aug 10, 2012 12:42:55 PM

"A few commentors seem to view this post (wrongly) as asserting that the death penalty is always justified in order to always encourage guilty pleas in murder cases. That is not the point of this post nor a claim I wish to make generally."

Grits makes a conclusion about this paraphrase of Doug's position. I don't think the paraphrase is accurate (both the "always justified" and "murder cases" part particularly is overbroad). I also don't think Grits is "lying" (he's wrong) or calling Doug a "coward" (a word that means something pretty strong & until he says otherwise, I won't infer that is what Grits thinks).

Reference is made to his "factual guilt," though Kent notes there is a reasonable argument to be made that he is legally insane even using a strict rule for insanity. If so, would he be "guilty"? The fact he did it is the "obvious" part ... his "guilt" is something even pretty strongly pro-death penalty types very well might doubt.

I think the result here is "efficient" and realistically, the end result (if involving a lot more litigation time), would likely be similar. A jury very well might have found him insane, but he would stay locked up for quite some time. Given that, and as others note, that the death penalty is not necessarily necessary to result in this sort of plea, it is not totally "just" to have him plea legally guilty, at least, if he actually was insane and not "guilty."

Since net result is largely the same, this is not some horrible result or anything, and "abolitionists" will worry about other things more. Two things. First, you have possible state prosecutions. Second, this business about "closure." The victims will obtain closure each in their own way. Litigation will affect that in some way but only so much. And, for some, true closure might only (so it is said in other cases) result if he is executed. So, this deal might be "efficient," it might even be "just," but I'm not sure how much "closure" it brings to victims.

Posted by: Joe | Aug 10, 2012 1:15:38 PM

One more thing. Doug raises cases like this to show that he personally doesn't think an absolute anti-death penalty position is reasonable, since it provides a possibility that (at least in narrow cases) it is valid in some cases.

But, the death penalty won't only apply to such cases & other than saving litigation costs (and only up to a point, this not your typical case), I don't even know how much benefit it actually does in this one. Given even Timothy McVeigh's co-conspirator wasn't given the death penalty, the proper line even here, looking at jury and judges making the decisions, not "abolitionists," is hazy. This even if one is not "truly and deeply troubled" by this specific disposition.

Posted by: Joe | Aug 10, 2012 1:31:44 PM

Joe sure uses a lot of words to say not much.

The plea bargain issue, in my view, is more of a rebuttal to the cost argument that DP opponents like to make. Clearly, a lot of money was saved with this plea, and it removes a sextuple killer from society permanently.

Posted by: federalist | Aug 10, 2012 1:55:33 PM

"Joe sure uses a lot of words to say not much."

I disagree.

"The plea bargain issue, in my view, is more of a rebuttal to the cost argument that DP opponents like to make. Clearly, a lot of money was saved with this plea, and it removes a sextuple killer from society permanently."

DP opponents (like abortion opponents, verbosity alert, this label is often applied to non-absolutists) have many arguments. Cost is but one of them. Some things are worth the cost -- it has to be examined as a whole. Saving a lot of money doesn't tell me that much. If this guy deserves to be executed, as you think various murderers do, perhaps saving money isn't worth it.

John Hinckley is still locked up for an attempt thirty years ago, but an example to suggest this guy was not likely to be let out to the society for a long long time. The plea doesn't really change anything much there at all.

Posted by: Joe | Aug 10, 2012 4:07:39 PM

Joe --

"Saving a lot of money doesn't tell me that much."

Remind me to quote you the next time one of your abolitionist allies tells us that the DP has to go so that we can save a lot of money.

Posted by: Bill Otis | Aug 10, 2012 4:33:13 PM

Sigh. One would hope that people, particularly those like Joe who tend to run on and on about things, would take the time to actually read. Joe, I get that saving money isn't the end all-be all. That's implicit in my point. I'm just saying that it tends to rebut the argument of anti-DP people that it costs too much. The money saved by these LWOP plea deals aren't usually factored in.

Posted by: federalist | Aug 10, 2012 5:54:51 PM

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