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September 18, 2007

Another example of the death penalty as an effective plea bargaining tool

As I have suggested in a number of prior posts (see here and here), I have long thought that the biggest impact of having (or not having) the death penalty in a jurisdiction may be its impact on prosecutorial charging and plea bargaining practices.  In this vein, consider this article from the Los Angeles Times, entitled, "Kingpin avoids death penalty with plea deal."  Here are excerpts:

Mexican gangster Francisco Javier Arellano Felix, the alleged boss of a family-run drug cartel thought to be responsible for scores of murders in Mexico and the U.S., pleaded guilty Monday to charges that will put him in prison for life without the possibility of parole. 

Arellano Felix, who appeared wan and submissive, pleaded guilty to running a drug organization and money laundering.  In exchange, federal prosecutors agreed to drop other charges and not seek the death penalty.

In a brief recitation to the judge, Arellano Felix's attorneys said their client had admitted that his Tijuana-based organization grossed $20 million a year from the smuggling and sale of hundreds of tons of cocaine and marijuana. Violence was a routine business practice, the attorneys told U.S. District Judge Larry A. Burns. 

Burns set Nov. 5 for sentencing to allow for a probation report, although he noted that federal sentencing guidelines required him to sentence Arellano Felix to life in prison without parole.... As part of the plea bargain, Arellano Felix agreed to forfeit [his] boat, a 43-foot yacht, and $50 million in drug profits.

At its height in the 1990s, Arellano Felix's organization was believed to be supplying nearly half of the cocaine sold in the U.S. The organization allegedly ordered the murder of a deputy police chief in Tijuana and the beheadings of three officers. In the crossfire of a shootout at Mexico's Guadalajara airport in 1993, Roman Catholic Cardinal Juan Jesus Posadas Ocampo was killed.

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.

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September 18, 2007 at 07:39 AM | Permalink


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It seems that the death penalty will only really be an effective plea bargaining chip if the government actually follows through on its threats in some cases. If word gets around to criminal defendants that prosecutors only talk tough, then the promise to "take the death penalty off the table" is fairly hollow.

Posted by: Steve | Sep 18, 2007 10:30:26 AM

A pistol to the defendant's temple would also be an effective plea bargaining tool, just as it might assist during interrogations.

In fact, now that I think of it, threatening to kill people might be an "effective" way to coerce human behavior in many circumstances - e.g., it might be "effective" at convincing the grocery store manager to open another register when the lines are long. (That always bugs me.)

OTOH, given the problem of false confessions, perhaps there may be other criteria for justifying the death penalty besides "effectiveness" at coercing a plea?

In this particular case, there's an added twist: The government's actual desired outcome was never the death penalty; they wanted this guy to flip.

And here's a bonus prediction: The death of the Tijuana cartel is already a pyrrhic victory because it dislodged the power balance in the Mexican cartel wars and helped set off the current intra-cartel conflicts in Mexico. This prosecution really was one of those "be careful what you ask for" moments, I fear, from which Mexico has since reaped the whirlwind.

Posted by: Gritsforbreakfast | Sep 18, 2007 10:40:20 AM

Of course, as with so many other aspects of the federal sentencing process, the deal of "life" rather than death is not fairly offered to all. Kingpins with cash to give up get to evade the death penalty while those who don't have money and who were responsible for much less misery are not offered the option of pleading to life without parole. The unfair administration of the death penalty process is a major reason to oppose it.

Posted by: defense attorney | Sep 18, 2007 11:10:09 AM

defense attorney, why do I get the sense that your opposition to the "unfair administration of the death penalty process" is actually just a cover-up for your fundamental distaste for capital punishment?

Posted by: Steve | Sep 18, 2007 11:26:36 AM

There someone goes again with the "it's not fair" bleating. If you don't want to face the death penalty, don't do crimes that merit it.

Posted by: federalist | Sep 18, 2007 12:27:24 PM

Steve, In order to attack “Defense Attorneys” argument, you would need to explain why you think that he actually does not take the position he says he does. All you do is say that you have a sense or something.

But, it isn’t that radical a position to be both anti-death penalty on substantive grounds and against the procedures that allows the government to kill poor people. It can easily be attacked on either grounds. Likewise, people can defend it, saying that the state has always tortured and killed people, and the people getting the death penalty, even if they did not commit the crime and even if a process was tainted are the kind of people that society would be better off without, anyway.

Federalist, In any discussion about criminal justice, people will always assert that something isnt’ fair. There would be no need for any changes ever in criminal law or procedure if everyone agreed that it was fair.

Posted by: S.cotus | Sep 18, 2007 12:51:04 PM

S.cotus, of course you're right, and I didn't mean to imply that defense attorney's position was radical. I just think it's a bit disingenuous for one to pontificate on how he opposes the death penalty because it's not fairly applied, when even if it was fairly applied, he would still oppose it on other grounds. If defense attorney's only objection to the death penalty was that less culpable defendants get executed more often because they have less to give up, I would have imagined that she would attempt to fix that perceived problem. Instead, it appears as though she veils her fundamental objection to capital punishment by stating an objection to its application.

Posted by: Steve | Sep 18, 2007 12:59:32 PM

Steve, What makes you think I don't work to establish fairer sentencing practices? And the fact that I may, or may not, have other objections to this particular sentencing policy is irrelevant to the issue of whether the justice system is treating defendants fairly. If you are in favor of the death penalty, why aren't you complaining that this Mexican drug lord who was involved in dozens of murders and the ruining of thousands of lives has been allowed to buy his life with $50 million and a yacht, not to mention the possibility (should laws change) of release at some point? Unequal application of any sentencing penalty is a valid constitutional complaint (see the Fourteenth Amendment), whatever your position on the death penalty might be.

Posted by: defense attorney | Sep 18, 2007 1:18:06 PM

defense attorney, I inferred as much from your initial comment. And I beg to differ that an opposition to death as a means of punishment is irrelevant to your stated opposition to the application of the penalty. After all, you stated that the application of capital punishment is "a major reason to oppose it," thereby implying that there are other reasons to oppose it as well.

And as to this particular defendant, it appears that he has more to offer the government than cash and a yacht. While I admit to supporting the death penalty, and ordinarily would believe that this individual is perfectly deserving of that ultimate punishment, the information that he can provide to the government will hopefully allow the successful prosecution of hundreds of other criminals.

Posted by: Steve | Sep 18, 2007 2:01:48 PM

Steve, Just wondering -- should an individual who commits the most terrible crimes really be able to avoid them by coughing up a yacht and having a few honest heart-to-hearts with a US Attorney?

Posted by: S.cotus | Sep 18, 2007 2:08:53 PM

S.cotus, it depends on what you mean by "a few honest heart-to-hearts." If this defendant has a written plea agreement--and it appears that he does--then I'm 99% sure the agreement requires him to cooperate fully with other investigations and testify if necessary. With someone like Mr. Arellano Felix, he probably has information on a lot of other criminals, and if he shares that information with the government pursuant to the plea agreement, then I think he is entitled to escape the death penalty. Whether he'll also be entitled to a Rule 35(b) motion is another story - but I'm not fond of broad generalizations in criminal law, because my experience has taught me that individual defendants are all unique and therefore sentencing should be more ad hoc.

Posted by: Steve | Sep 18, 2007 2:34:47 PM

But I am asking as a substantive matter:

Why does post-indictment cooperation with the government warrant a lesser sentence? I could sort of understand a low-level dealer/user being given a lesser sentence if he rats on the people up the chain. (I am not taking a position on snitching.) But, I don’t understand how the worst person in an organization is entitled to avoid the death penalty because he “cooperates” after the fact?

Posted by: S.cotus | Sep 18, 2007 3:47:12 PM

S.cotus, the issue is not whether he is "entitled" to anything, but whether the government takes the view that his cooperation will result in the greater good. I am as pro-death penalty as they come, and if a killer can help me put away a bunch of other criminals (which will result in less victimization), I have to think about a plea deal if I were a prosecutor.

You can get over your squeamishness by understanding that criminals aren't really entitled to fairness vis-a-vis their cohorts in crime.

Posted by: federalist | Sep 18, 2007 3:58:48 PM

I think federalist put it like I would have. Not only does the cooperation of the "kingpin" presumably result in less crime, it also results in fewer trials against the "lesser criminals," who will also presumably plead guilty when presented with the evidence against them, thereby saving the government the time and expense that would have been required to prosecute those trials.

Posted by: Steve | Sep 18, 2007 4:10:38 PM

Federalist, Whether criminals (or as we say, “your type”) are entitled to “fairness” with regards to their cohorts is an open question and a matter of sentencing law. Currently, the law is unsettled as to whether codefendants (and maybe coconspirators) are entitled to some Booker reduction based on a cooperating defendant’s lower sentence.

While I am sure that you are pro-death penalty, you really need to put your money where your mouth is, and be in favor of more killing, not some sort of economic advantage obtained by less killing. While prosecutors are vested with some responsibility to the public, by simply bargaining away a legislative choice to kill people, they are actually not doing their duty if the legislature decides that they want to kill a certain class of people for whatever reason.

I seriously doubt that the cooperation of a drug kingpin results in less crime. While I am generally in favor of the war on drugs (because it a war on poor people, and I am against poverty), there will always be people willing to engage in the drug trade. If one drug kingpin goes down, others will replace him.

It is also unclear as to whether there would be less trials. Someone else (who wasn’t subjected to the death penalty) might testify against their co-conspirators, and the government would have to give up less. Whatever the case, the cost of trials, unlike the cost of prisons, is required by the constitution. I have urged my representatives to seek the amendment of the sixth amendment, so as to eliminate the guarantee of counsel, and trials (replacing them with a beach volleyball tournament) but they said that would get to it a constitutional amendment to end gay marriage stops making people cheat on their wives. Results are expected any day now.

Posted by: S.cotus | Sep 18, 2007 4:34:28 PM

Arguably, the right to counsel makes people more willing to commit crime, but that's another topic.

Your argument that there exist legislative mandates to kill certain classes of people is like saying that, because a statute provides for a maximum sentence of 20 years imprisonment, the legislature is mandating that this sentence always be imposed. It's simply not the case. If anything, the "class" of people that the death penalty is targeted at are those who commit particularly heinous crimes, don't have some other excuse, and can't provide much information about other criminals. But even I don't believe that's the case.

Posted by: Steve | Sep 18, 2007 4:48:33 PM

Gratiano is at it again.

Posted by: federalist | Sep 18, 2007 5:21:02 PM

It appears that the death penalty advocates here argue against the death penalty in this case because letting this guy live will end the war on drugs!

We (the the people represented by government that can do no wrong in the war on drugs) won!

Ain't that grand.

Posted by: George | Sep 18, 2007 5:30:23 PM

I don't think it's fair to say that we're arguing against the death penalty. I'd be very happy to see a drug kingpin get death.

George, between you and S.cotus, I cannot figure out who is more Gratiano.

Posted by: federalist | Sep 18, 2007 6:08:00 PM

Do you ever NOT call people names?

Posted by: S.cotus | Sep 19, 2007 1:03:35 PM

"I have urged my representatives to seek the amendment of the sixth amendment, so as to eliminate the guarantee of counsel, and trials (replacing them with a beach volleyball tournament) but they said that would get to it a constitutional amendment to end gay marriage stops making people cheat on their wives. Results are expected any day now."

That's your quote, and it's representative of a lot of the nonsense you spout. Your reasons "are as two bits of chaff in two bushels of wheat. You shall search all day ere you find them, and when you have them, they are not worth the search."

Posted by: federalist | Sep 19, 2007 1:18:59 PM

Unfortunately, your last two posts do not actually seem to even take issue with the substance of my arguments. Instead, you either call people names or render conclusory statements. This essentially means that you are conceding my points.

Posted by: S.cotus | Sep 19, 2007 2:55:15 PM

maybe so, if you had indeed made points . . . .

Posted by: federalist | Sep 20, 2007 3:29:16 PM

Interestingly, Doug, a new GAO study found that the strategy of targeting kingpins like Arellano has failed to stem the flow of drugs, see:


Posted by: Gritsforbreakfast | Sep 22, 2007 2:53:51 PM

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