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THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 103, No. 2

475

* Assistant Professor of Law, UCLA School of Law. Former Staff Attorney, Capital

Habeas Unit, Office of the Federal Defender for the Eastern District of California. I would

like to thank Daniel Abebe, Anya Bernstein, Alexander Boni-Saenz, Bernard Harcourt,

William Hubbard, Aziz Huq, Richard McAdams, Tracey Meares, Thomas Miles, Jennifer

Nou, Andres Sawicki, Julia Simon-Kerr, and participants of The University of Chicago Law

School Faculty Workshop for useful comments on drafts of this Article. Naturally, all

remaining errors are my own.

A. Bargaining Incentives ................................................................. 484

B. Bargaining Disincentives ............................................................ 487

A. History and Description of the Modern Statute ............................. 498

B. Life Without the Possibility of Parole .......................................... 502

C. Capital Case Progression ............................................................ 503

A. Designation of Treatment and Control Groups ............................. 507

B. Statistical Model ........................................................................ 513

C. Missing Data.............................................................................. 519

A. Fixed-Effects logit specifications ................................................ 521

B. Sensitivity Analyses ................................................................... 524

approximately 95% of convictions that occur within a year of arrest are

bargaining did not occur with any frequency until well into the nineteenth

constitutionality until long after it was common practice in the criminal

bargaining benefited both sides of the adversarial system and was “inherent

bargaining, calling it “an essential component of the administration of

(i.e., as long as pleas were intelligent and voluntary). Several years later in

1 Plea bargaining is “[a] negotiated agreement between a prosecutor and a criminal

defendant whereby the defendant pleads guilty to a lesser offense or to one of multiple

charges in exchange for some concession by the prosecutor, usu. a more lenient sentence or a

dismissal of the other charges.” BLACK’S LAW DICTIONARY 1270 (9th ed. 2009). Plea

bargaining may involve three areas of negotiation: charge bargaining (negotiation to plead

guilty or no contest in exchange for the dismissal of some counts or reduction of the charge);

sentence bargaining (negotiation to plead guilty or no contest in exchange for the

prosecutor’s recommendation to the court for a lighter sentence); and fact bargaining

(negotiation to stipulate to certain facts in exchange for an agreement not to introduce other

federal and state felony prosecutions are resolved by trial).

appear in American appellate court reports.”).

you turn to the American Constitution in search of authority for plea bargaining, you will

look in vain. Instead, you will find—in no less hallowed a place than the Bill of Rights—an

opposite guarantee, a guarantee of trial.”).

5 397 U.S. 742 (1970).

7 404 U.S. 257 (1971).

9 434 U.S. 357 (1978).

defendant pleads guilty to murder to avoid the death penalty does not make the plea

involuntary, especially when the defendant is represented by competent counsel who can

assess the weight of the evidence against the defendant. North Carolina v. Alford, 400 U.S.

formal endorsement of plea bargaining, the Court has been reluctant to

regulate plea bargains, recently noting that “[h]indsight and second guesses

Most judges support the system of plea bargaining because it allows

them to alleviate the need to schedule and hold a trial on what are typically

caseload and assurance of a conviction from plea bargaining. Plea

negotiations also allow prosecutors to strengthen their cases against

codefendants by offering certain defendants a plea arrangement in exchange

for testimony against one or more codefendants. This practice assures

prosecutors at least one conviction while also enhancing the chances of a

25, 31 (1970).

11 Premo v. Moore, 131 S. Ct. 733, 745 (2011). Notable exceptions include the Court’s

that defense counsel’s incorrect advice to a client regarding the deportation risk associated

with pleading guilty may violate the Sixth Amendment guarantee to effective assistance of

counsel if it prejudices the client’s decision. 130 S. Ct. at 1478. The Court also rejected the

argument that its ruling would ultimately open the “floodgates” of litigation by providing

that point comes after extension to many other collateral consequences that are as

serious as deportation.”).

nondeportation cases and holding that a defendant’s Sixth Amendment right to effective

assistance of counsel may be violated when (1) defense counsel fails to properly inform the

counsel incorrectly advises the defendant on the state of the law, leading the defendant to

The Court recognized that defense counsel’s duty to inform a client of formal plea offers

raised under “ineffective advice” must satisfy three conditions: (1) the ineffective advice was

the “but for” cause of the plea not being accepted by the defendant, (2) the trial court would

have ultimately accepted the terms of the bargain, and (3) the conviction or sentence would

1161, 1191–92 (2012) (analyzing the Court’s recent plea-bargaining decisions). The impact

of these decisions on plea bargaining is debatable, however. As one federal trial judge has

ineffective assistance of counsel, but rather prosecutorial overconfidence in the face of

12 Blackledge v. Allison, 431 U.S. 63, 71 (1977) (noting that plea bargaining permits

(suggesting that the level of plea bargaining is high irrespective of caseload pressure).

subsequent conviction. Defendants are allowed to avoid a more serious

charge or sentence and, if represented by private counsel, avoid the cost of a

to be superior to trials due to reduced costs, improvements in the speed and

efficiency of case processing, and increases in the certainty of

academics and practitioners continue to debate its fairness and desirability.

Critics of the plea-bargaining system emphasize that it encourages

prosecutors to “overcharge” at the start of the case in an effort to coerce

defendants into accepting a plea, allows prosecutors to “cure” defects in

their cases by avoiding trial, and encourages defendants to plead guilty to

bargain may also be required to relinquish certain constitutional and

bargaining also suggest that the practice allows defendants to avoid the

STUD. 289, 297–98 (1983) (defending plea bargains as an element of a well-functioning

market system and cautioning that efforts to restrict actors’ discretion in criminal procedure

J.L. & ECON. 61, 66–69 (1971) (describing factors influencing the likelihood of parties

entitlements parties trade in plea bargaining).

BARGAINING IN AMERICA 200–01 (2003) (discussing the growth of plea bargaining in

POLICE SCI. 780, 790 (1956) (describing plea bargaining “as a natural, expedient outgrowth

of deficiencies in the administration of our ‘trial-by-combat’ theory of justice”); Edward A.

CRIM. L. 323, 353 (1979) (“Plea bargaining should be accepted openly as a system which

can accomplish the goals of justice as completely as can a pure trial system, while at the

same time releasing resources to serve society in other areas of life.”).

737, 769 (2009) (positing that plea bargaining may benefit individual defendants, but due to

negotiated pleas in cases with weak—possibly inadmissible—evidence and when specific

101 YALE L.J. 1979, 1980–91 (1992) (describing structural flaws—e.g., innocence and

conflicts of interest—in the plea-bargaining system).

generally forfeit that could otherwise provide a cause of action for an appeal).

appropriate punishment for their crimes (as established by state legislative

bodies) and that the practice heavily favors defendants with savvy lawyers,

bargaining as a “necessary” and “inevitable” component of our criminal

justice system have been challenged, as critics of plea bargaining point to

The debate over the promises and pitfalls of plea bargaining is perhaps

17 WELSH S. WHITE, THE DEATH PENALTY IN THE NINETIES: AN EXAMINATION OF THE

MODERN SYSTEM OF CAPITAL PUNISHMENT 56 (1991) [hereinafter WHITE, DEATH PENALTY]

(explaining that many prosecutors disfavor litigating pretrial motions, and defense attorneys

who engage in intensive pretrial motion work are likely to obtain favorable plea bargains for

REV. 671, 674 (2009) (suggesting that plea bargaining for a reduced punishment undermines

(arguing that plea bargaining tends to favor repeat offenders).

LAW & SOC’Y REV. 367, 367 (1979) (describing Alaska’s attempt to ban plea bargaining for

efforts to abolish plea bargaining have achieved mixed results). But several scholars have

noted that the incentives to plea bargain are so strong for all the primary actors in the

criminal justice system that they simply find alternative ways to achieve the same end even

TO THE THEORY AND PRACTICE OF CAPITAL PUNISHMENT IN THE UNITED STATES 207–08

(2003) (commenting that the availability and use of plea bargaining can contribute to

note 17, at 54 (conducting interviews with capital defense attorneys and concluding that “the

likelihood of a plea bargain in a capital case will be dramatically affected by factors that

have nothing to do with the nature of the crime or the strength of the evidence against the

the [death penalty’s] most common rationale . . . some crimes are so horrible that they

(1994) (explaining that the existence of statutorily defined special circumstances for death

WELSH S. WHITE, LITIGATING IN THE SHADOW OF DEATH 145–171 (2006) [hereinafter WHITE,

LITIGATING IN THE SHADOW OF DEATH] (explaining that plea bargaining is an important tool

for defense counsel to save their clients’ lives, but also recognizing how the practice leads to

American Bar Association Guidelines recognized that attorneys representing a capital

defendant have an obligation to seek negotiated pleas, and suggesting that the current

number of death row inmates could have been drastically reduced if their defense attorneys

conducted very little research on the relationship between the death penalty

attention on the examination of the possible deterrent effect of the death

examination of the causal impact of the threat of the death penalty on the

likelihood of parties reaching a plea agreement. This type of inquiry is

particularly relevant because the effect of the death penalty on plea

bargaining is theoretically ambiguous. The threat of the death penalty may

induce defendants who may not have otherwise accepted a plea agreement

to plead to avoid the risk of possible execution, so the overall number of

cases proceeding to trial is reduced. An opposite effect is plausible as well:

armed with the threat of the “ultimate penalty,” prosecutors may be less

willing to offer capital defendants desirable plea bargains, if any bargain at

worked more diligently to obtain a negotiated plea).

AM. L. & ECON. REV. 116, 141 (2006) (conducting the first study of the effect of the death

only one systematic examination of the impact of the death penalty on plea bargaining); Kent

NO WINNERS HERE TONIGHT: RACE, POLITICS, AND GEOGRAPHY IN ONE OF THE

COUNTRY’S BUSIEST DEATH PENALTY STATES 96–100 (2009) (discussing the high prevalence

of plea bargaining in capital cases in California, New York, Ohio, and at the federal level).

21 To be sure, social scientists—particularly those working in fields outside of

economics—have conducted empirical research on various aspects of the death penalty for

more than 75 years, and over the past 30 years, socio-legal research has figured prominently

into the debate over the appropriateness and effectiveness of capital punishment in the

But no other issue related to the death penalty has received more systematic attention from

AMERICA: CURRENT CONTROVERSIES 135, 135 (Hugo Adam Bedau ed., 1997).

prosecutors more aggressive or recalcitrant, so they may be less willing to strike deals with

58 (presenting the problem that some defendants prefer execution rather than life

make “take it or leave it” offers of life without the possibility of parole in death-eligible

322–24 (2002) (showing that the availability of the death penalty can trump the usual

pressure for prosecutors and defendants to reasonably compromise).

Both chief prosecutors and rank-and-file prosecutors may anticipate huge career

that the death penalty will have no impact on the likelihood that a defendant

two scholars have recently noted, “opposing hypotheses about the effect of

Examining the impact of capital punishment on plea bargaining is

important for several reasons. First, it helps inform our understanding of

how sentencing law influences plea bargaining. Given the centrality of

pleas for the disposition of criminal cases, studying how sentencing

structure impacts the incentives of prosecutors and defendants in plea

negotiations is important to our understanding of the criminal justice

system.

Second, the use of the death penalty as leverage in plea negotiations

raises important legal and ethical issues. Defendants are typically required

to waive important constitutional rights as a condition of the plea

determination of guilt and punishment at trial, so the absence of these

protections may undermine our confidence in that determination. This may

be of particular concern in the capital context because although defendants

who plead guilty avoid the risk of execution, they still receive very lengthy

payoffs from pursuing a capital case even when the defendant ultimately receives a sentence

upcoming prosecutorial elections are the most important factor in predicting the likelihood of

a plea bargain in a capital case, and savvy defense attorneys attempt to delay trial until after

an election in order to increase the likelihood that a prosecutor will offer a plea); Jonathan E.

GENERATION OF CAPITAL PUNISHMENT RESEARCH 397, 409 (Charles S. Lanier et al. eds.,

2009) (“Prosecutors are often hawkish about the death penalty during election campaigns,

increasing the probability that they will press for it in office and use it when available.”);

CRIM. L. 581, 606 (2009) (suggesting that campaigning prosecutors invoke the death penalty

infrequently). Alaska, Connecticut, Delaware, New Jersey, and Rhode Island are the only

states that do not popularly elect their district attorneys. John A. Horowitz, Note,

fail to reach settlement agreements when such agreements are apparently mutually

beneficial).

heightened concern over statutory schemes that “needlessly burden” the exercise of

constitutional rights).

sentences—typically life imprisonment. The threat of the death penalty has

also induced innocent defendants to plead guilty (and even falsely implicate

Finally, the study of the plea-negotiation process in the capital context

permits us to gain a better understanding of the financial and administrative

costs of capital punishment to states and the federal government. Capital

trials are extremely expensive and they rarely reduce prison costs because

of the infrequency of executions and the added expense associated with

result in substantial savings, however, if the threat of execution deters

sufficient numbers of individuals from pursuing trial.

Part I of the Article discusses many of the unique aspects of plea

bargaining in the capital context and how these factors cut both in favor and

against successful plea negotiations. Part II describes the limited empirical

research on the impact of the threat of the death penalty on plea bargaining

and how certain weaknesses of that particular work undermine our ability to

draw firm conclusions about the relationship between capital punishment

and plea bargaining. This section also explains how the limitations of this

prior research are avoided in the study conducted in this Article using an

originally constructed data set on capital charging-and-sentencing decisions

in Georgia. Part III briefly outlines Georgia’s modern capital punishment

and life without the possibility of parole (LWOP) statutes, Part IV describes

the data collected on Georgia’s capital charging-and-sentencing system that

are used to analyze the impact of the death penalty on plea negotiations, and

Part V discusses the empirical strategy employed to analyze the data. Part

VI reports the results from various model specifications. According to

these findings, my conservative estimate is that the threat of the death

penalty increases the likelihood of reaching a plea agreement by

approximately 20 percentage points. In practical terms, the death penalty

increases the plea-bargaining rate from approximately 40% to 60%. In

other words, the threat of capital punishment deters roughly two out of

every ten death-noticed defendants from pursuing a trial. Part VII discusses

the implications of the findings for the administrative and financial costs of

innocent defendants pleaded guilty to murder, and even falsely implicated others, in order to

OMAHA WORLD-HERALD, Jan. 27, 2009, at B1 (discussing five exonerated convicted

murderers who falsely pleaded guilty after being threatened with the death penalty).

the death penalty. Based on the high costs associated with litigating a

single capital trial and the rather modest ability of the death penalty to deter

defendants from pursuing trial, capital punishment does not appear to be a

cost-justified bargaining chip.

A. BARGAINING INCENTIVES

In addition to the perceived increase in plea-bargaining leverage

resulting from the severity of the punishment, prosecutors typically enjoy

huge advantages by merely seeking the death sentence. First, it enables the

government to empanel a “death-qualified” jury. The primary purpose of

“death qualification” during voir dire is to remove jurors who

unequivocally oppose the death penalty or, conversely, who believe that the

Court has upheld the constitutionality of death-qualified juries in the face of

the claim that these juries placed defendants at an unfair risk of

death-qualification process also permits prosecutors to identify jurors with

mildly skeptical views of the death penalty (or the criminal justice system

in general) who may survive exclusion for cause, and subsequently exercise

for determining when the Court may exclude a prospective juror because of his views on

capital punishment is whether “the juror’s views would ‘prevent or substantially impair the

performance of his duties as a juror in accordance with his instructions and his oath’”

(footnote omitted)).

29 Witherspoon v. Illinois, 391 U.S. 510, 517–18 (1968) (“We simply cannot

conclude . . . that the exclusion of jurors opposed to capital punishment results in an

unrepresentative jury on the issue of guilt or substantially increases the risk of conviction.”).

PSYCHOLOGICAL SYSTEM 118–21 (2005) (describing the conviction proneness of deathqualified

155 (2004) (same).

(2000) (explaining that voir dire in capital cases allows prosecutors to “jettison[] the segment

of the jury pool that is most likely to be skeptical of informer, police, and forensic testimony

and to take seriously the beyond a reasonable doubt standard”); F. Thomas Schornhorst,

Second, seeking the death penalty substantially increases the defense’s

burden with very little increase, if any, in the government’s burden by

vastly expanding the defense attorney’s role and the requisite skill set and

attorneys, both in private practice and employed by the government, are

routine negotiators of deals that permit their clients to avoid trial.

Representation of a capitally charged client now possibly requires defense

counsel to become serious investigators of a horrific crime (or at least

coordinators of complex investigations), competent consumers (and

communicators) of mental health and forensic science, and experts on

complicated (and constantly evolving) specialized constitutional and

lawyers will simply refuse to represent a capital defendant, and evidence

suggests that capital defendants represented by court-appointed counsel are

more likely to receive the death sentence and more likely to have their

for probable cause of the existence of “death-eligible” special circumstances prior to death

are more likely to prefer convicting the innocent over acquitting the guilty).

quality of representation in capital cases).

defense lawyers must know, for example, whether a defendant’s small children, ill health,

apology, cooperation, or restitution can lower his sentence.”); Richard G. Dudley, Jr. &

importance and accompanying complexity of thorough mental health investigation for

assistance of defense counsel in capital cases).

RAYMOND PATERNOSTER ET AL., THE DEATH PENALTY: AMERICA’S EXPERIENCE WITH

CAPITAL PUNISHMENT 237 (2008) (reporting that court-appointed lawyers representing

capitally charged clients in the most active death penalty jurisdictions were significantly

more likely to have been professionally disciplined prior to the appointment); Jules Epstein,

CIV. RTS. L. REV. 389, 400–01 (2010) (suggesting a direct consequence of overly broad

capital statutes, and the resulting sky-rocketing capital docket, is the difficulty of finding

“There are many small communities that do not have surgeons. But that does not

mean that we allow chiropractors to do brain surgery in those communities.” We do,

however, let “chiropractors” with law degrees perform the equivalent of brain surgery

in capital cases and, predictably, the “patient” often dies.35

Third, prosecutors generally understand that defense attorneys will

adopt minimalist, risk-averse pretrial and litigation strategies and practices,

focusing primarily on penalty-phase investigation and preparation and on

preserving “credibility” at the penalty phase. Consequently, the risk of an

acquittal even in cases with genuine evidentiary problems regarding guilt is

trials revealed that jurors were more likely to vote for the death sentence

when defense counsel’s guilt-phase and penalty-phase presentations were

“[a]ttorneys representing capital defendants face daunting challenges in

prosecutors recognize that judges at both the trial and appellate levels—

especially elected judges—are less likely to require capital trials to strictly

follow reliable procedure out of fear that prosecutors will publicly blame

taking into consideration the vast responsibilities associated with defending a capital

defendant, the number of qualified attorneys in any jurisdiction dwindles to a handful or

(reporting that 90% of inmates on death row could not afford private counsel).

compromised credibility at the penalty phase after aggressively pursuing an innocence

defense).

38 Florida v. Nixon, 543 U.S. 175, 191 (2004) (discussing the potential tensions between

guilt and penalty phase strategies).

37 (2003) (discussing the tremendous political and community pressure on judges in capital

cases).

B. BARGAINING DISINCENTIVES

The aforementioned advantages that prosecutors enjoy in seeking the

death penalty would appear to increase the likelihood of a plea bargain;

however, these advantages may be offset by forces pushing against

compromise on both sides of the aisle. Both systematic and anecdotal

evidence suggests that plea negotiations are most likely to occur when (1)

both parties perceive a similar expected probability of conviction, (2) the

expected trial penalty is relatively small (i.e., low-severity offenses), (3) the

settlement discount offered by the government is substantial, (4) the

defendant’s risk aversion is high, (5) pretrial detention and court delays

substantially increase opportunity costs for defendants, and (6) the parties

But many of these features may be missing or substantially weakened in the

majority of capital cases.

The central point of contention in a capital trial is not the expected

probability of conviction—approximately 90% of all murder trials result in

enormous discretion in deciding whether to impose the death sentence,

crime, differences in the expected probability of conviction, resources available to the

parties, and parties’ risk aversion).

BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, FELONY DEFENDANTS IN LARGE

URBAN COUNTIES, 2002, at 24 (2006); BRIAN A. REAVES, BUREAU OF JUSTICE STATISTICS,

U.S. DEP’T OF JUSTICE, FELONY DEFENDANTS IN LARGE URBAN COUNTIES, 1994, at 24 (1998).

43 FRANKLIN E. ZIMRING, THE CONTRADICTIONS OF AMERICAN CAPITAL PUNISHMENT 53–

55 (2003) (describing the penalty phase of a capital trial as a “status competition” between

proliferation of victims’ rights legislation and victim-impact statements during the penalty

phase of capital trials).

44 NANCY J. KING & JOSEPH L. HOFFMANN, HABEAS FOR THE TWENTY-FIRST CENTURY:

USES, ABUSES, AND THE FUTURE OF THE GREAT WRIT 147 (2011) (explaining that capital

cases are thirty-five times more likely to be granted relief upon federal habeas review than

were overturned on appeal from 1973 to 1995 and 82% of those defendants ultimately

avoided the death penalty at resentencing).

45 Zant v. Stephens, 462 U.S. 862, 891 (1983) (holding that aggravating circumstances

sentencing patterns are unable to identify any meaningful (i.e., legally

legitimate) defendant or crime characteristics that consistently distinguish

suggests that prosecutors and defendants in capital cases may significantly

differ in their assessments of the expected trial sentence. As a result,

prosecutors will only have imperfect information about a defendant’s

reservation price (i.e., the maximum plea sentence that the defendant would

accept to avoid a trial), and might inadvertently make a plea offer exceeding

probability that a case would result in a plea bargain, they cannot accurately

a larger discount than what a prosecutor is willing to offer. This is

are only required to narrow death eligibility and not to channel jurors’ discretion at the

penalty phase, and nonstatutory aggravating circumstances may be considered by the jury as

under the Georgia capital statute that nonstatutory aggravating circumstances be proven

(2011) (describing the U.S. Supreme Court’s refusal to place greater restrictions on the

factors juries may consider when deciding whether to impose the death sentence).

to imagine that a few covariates exist that if included as predictors would lead to clear and

justified distinctions between defendants who are charged with a capital crime and

defendants who are not; likewise for death sentences. . . . [I]f idiosyncrasies associated with

the case, the defendant, or the adjudication process seem to determine a substantial part of

BARRY NAKELL & KENNETH A. HARDY, THE ARBITRARINESS OF THE DEATH PENALTY 120,

151 (1987) (noting that legally legitimate characteristics in capital cases only explain a small

portion of the variation in charging-and-sentencing decisions); Richard A. Berk et al.,

CRIM. L. BULL. 51, 84 (2003) (demonstrating that constitutionally mandated requirements to

guide jury discretion and eliminate arbitrariness in sentencing are not working); Deon Brock

43, 70 (2000) (reporting evidence of significant within-jurisdiction arbitrariness in the

imposition of the death penalty after taking into account offense seriousness).

49 RICHARD C. DIETER, DEATH PENALTY INFO. CTR., SMART ON CRIME: RECONSIDERING

THE DEATH PENALTY IN A TIME OF ECONOMIC CRISIS 14 (2009).

important because prosecutors are concerned with more than just avoiding

trials. They also care about fairness and reputation, and this may lead

prosecutors to refuse to adjust plea offers in a manner that would avoid

trial, even when prosecutors accurately assess the defendant’s reservation

Statutory minima in capital cases—typically life with or without the

possibility of parole—also preclude prosecutors from offering substantial

also less willing to drop or reduce homicide charges because such actions

are politically costly, so they often feel bound to dedicate resources to

current climate in which determinate-sentencing and truth-in-sentencing

laws typically require inmates sentenced to life imprisonment to serve at

least twenty-five years, and parole boards are increasingly reluctant to

50 WILLIAM J. STUNTZ, THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE 258 (2011) (“A

prosecutor who becomes known as a pushover will be taken advantage of, not once but many

family involvement in plea negotiations, including the ability to reopen a plea or sentence

when the accused has pleaded to a reduced offense).

(describing the “free me or fry me” attitude of many capital defendants); Robert L. Misner,

(explaining how the prevalence of statutory minima has dramatically increased the

sentence reductions is key to prosecutors’ success in the use of plea bargaining).

COLUM. L. REV. 583, 600–05 (2005) (arguing that state prosecutors are more often politically

obliged to prosecute a defendant for the offense she is suspected of committing, and thus

cannot drop the case or offer a charge bargain).

54 MARC MAUER ET AL., THE SENTENCING PROJECT, THE MEANING OF “LIFE”: LONG

PRISON SENTENCES IN CONTEXT 12 (2004) (discussing the steady increase in time actually

16, at 1141 (noting trend in truth-in-sentencing laws and parole board practices); Ehrhard,

parole sentences is disappearing in current political climate because parole boards are

resistant to granting early release); Press Release, Ga. State Bd. Pardons & Paroles, More

extremely inactive parole boards) severely restrict the magnitude of a plea

discount.

Many capital defendants also suffer from substantial cognitive and

emotional deficits and biases, and consequently are more likely to be riskseeking

(or risk-neutral at best) and less likely to accept favorable plea

a recent study of federal habeas corpus actions discovered that client mental

defendants are also more likely to be highly skeptical of their defense

attorneys during plea negotiations, especially in situations when the

Pretrial detention, court delays, and litigation costs are much less of a

concern for capital defendants as well. Defendants charged with murder are

the least likely to be released pending trial (19%), have the highest bail

amounts (i.e., represent the largest percentage of defendants with bail

exceeding $50,000), and are decreasingly (over the past twenty years) likely

with murder are “non-bondable” either through statute or practice (e.g.,

http://www.pap.state.ga.us/opencms/export/sites/default/press_releases/1998_press_releases/

news_0005.html (refuting popular misconception that “straight lifers” are released and

reporting that twenty-one “straight lifers” died in prison while serving their sentences in the

previous twelve months).

(explaining that capital defendants with mental health problems pose a significant obstacle in

plea negotiations and often express a “free me or fry me” position to their defense counsel);

being [] optimist[s] . . . [the] inability to think 100 yards in front of [themselves]”); Bibas,

behavior can lead some defendants to reject bargains they should otherwise accept).

enactment of the Anti-Terrorism and Effective Death Penalty Act (AEDPA)).

(describing how defendants’ mistrust of defense counsel in capital cases is often

bargaining is destructive to attorney–client relationships).

60 THOMAS H. COHEN & BRIAN A. REAVES, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T

OF JUSTICE, PRETRIAL RELEASE OF FELONY DEFENDANTS IN STATE COURTS 3, 6 (2007); BRIAN

A. REAVES & JACOB PEREZ, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE,

PRETRIAL RELEASE OF FELONY DEFENDANTS, 1992, at 2 (1994).

counsel has a strategic incentive to delay trial absent any strong claims of

so the state must almost invariably declare them indigent and appoint

burden of incurring the full cost of capital trials—particularly the

Finally, there are a variety of additional reasons why prosecutors and

defendants may not reach plea agreements in capital cases. The highly

publicized nature of capital cases, relative to noncapital cases, can increase

the reluctance of defendants to admit their participation in the crime in open

(and even some capital statutes) do not permit defendants to enter Alford or

62 BARRY LATZER & JAMES N.G. CAUTHEN, JUSTICE DELAYED? TIME CONSUMPTION IN

CAPITAL APPEALS: A MULTISTATE STUDY 30 (2007) (remarking on the extraordinary amount

of time some defense attorneys take to file a notice of appeal in capital cases); Michael E.

(discussing judges’ condemnation of defense counsel’s conduct in capital cases, including

delay tactics).

PENALTY SYSTEMS: THE GEORGIA DEATH PENALTY ASSESSMENT REPORT 143 (2006),

project/georgia/report.authcheckdam.pdf (noting that appointment of counsel is required for

a defendant indicted for a capital felony if she can establish that she is indigent). To be

declared indigent, a person must “lack[] sufficient income or other resources to employ a

qualified lawyer to defend him or her without undue hardship on the individual or his or her

threaten or attempt to make the trial as expensive as possible in order to improve their

bargaining positions).

LOY. L.A. L. REV. S41, S88 (2011) (reporting the significant costs associated with federal

(explaining that state and federal courts incur the financial burden of correcting trial

flawed because prosecutors are not required to take into account finite criminal justice

resources when making charging-and-sentencing decisions).

to a crime but does not admit guilt. Alford v. North Carolina, 400 U.S. 25, 25–26, 37 (1970)

against a particular defendant in an attempt to extract information that may

have otherwise been impossible to obtain—e.g., the names of possible

accomplices and additional victims—by inducing the defendant’s

cooperation in exchange for a sentence reduction. If the defendant refuses

Such cooperation may not be forthcoming in capital cases both because of

the high-profile nature of the cases and the severity of the potential

penalties for possible codefendants implicated by the defendants.

Due to the influence of these competing incentives on plea-bargaining

dynamics in the capital context, coupled with the lower likelihood of pleas

in murder cases in general, it is far from obvious what role capital

punishment is playing in plea negotiations in the aggregate. The empirical

analysis of the influence of the threat of the death penalty on parties’

To date, only one study has attempted to systematically examine the

(explaining that “[a]n individual accused of crime may voluntarily, knowingly, and

understandingly consent to the imposition of a prison sentence even if he is unwilling or

unable to admit his participation in the acts constituting the crime” and there is no “material

difference between a plea that refuses to admit commission of the criminal act and a plea

containing a protestation of innocence when . . . a defendant intelligently concludes that his

interests require entry of a guilty plea and the record before the judge contains strong

(explaining the constitutional prerequisites for Alford pleas). Georgia’s capital statutes

prohibit Alford pleas in capital cases. GA. CODE ANN. § 17-7-95(a) (West 2003).

69 The focus of the empirical analyses in this Article is whether a plea agreement was

that were ultimately disposed by trial, the data used in these analyses cannot distinguish

whether plea negotiations were attempted and, if so, why the negotiation failed.

the plea offer from the prosecutor because the offer was deemed unacceptable. Although no

systematic research on this topic has been conducted, experts estimate between 50% and

75% of inmates on death row rejected plea offers that would have avoided the death

According to a recent empirical study of federal postconviction review of capital

cases, 3% of defendants sentenced to death plead guilty at the conviction phase without

Some defendants may perceive additional benefits from accepting a plea apart from what the

government is willing or able to offer, such as leniency from the judge or jury during

Kuziemko’s study of the impact of the death penalty on plea bargaining in

New York State is the first study to examine whether the threat of the death

reinstatement of the death penalty in 1995, several district attorneys from

across New York’s sixty-two counties publicly announced their refusal to

seek the death penalty in death-eligible murder cases (i.e., first-degree

1995, coupled with these refusals to seek the death penalty, as a “natural

The study identifies defendants who were arrested for first- or seconddegree

murder as the “treatment group”—that is, the group of defendants

potentially susceptible to the death penalty—and defendants who were

arrested for burglary, forcible rape, or armed robbery as the “control

The study concludes that the threat of the death penalty in New York did

The approach taken in the study was sensible considering the available

data on New York’s capital charging-and-sentencing process, but several

deficiencies with the data likely undermine the substantive conclusions.

The first problem is the jurisdiction selected for the study: New York State.

While it is understandable that New York was chosen because of the

“natural experiment” conditions presented by the reinstatement of the death

first-degree murder in the state. Before the act, first-degree murder was limited to

individuals who were convicted of willfully killing law enforcement officers, and seconddegree

murder was a catchall category that included a wide range of homicide offenses. In

an attempt to take into account the expanded definition of first-degree murder, and therefore

keep the treatment group consistent across time, the study aggregated first- and seconddegree

findings, the study examines a national cross section of murder defendants in 1988 drawn

from the thirty-three largest counties in the United States. Results from the national data

important limitations that also limit generalizability (i.e., improper focus on large urban

counties and improper identification of treatment and control groups). Stephanie Hindson et

REV. 549, 570–77 (2006) (discussing county variation in use of the death penalty within a

state).

penalty, New York has a rather inactive death penalty when compared to

many other jurisdictions with capital statutes. For example, from 1995

through 2000, district attorneys in New York issued only thirty-six death

Furthermore, by the year 2000, only six people sat on death row in New

York, and no executions have taken place since the death penalty was

The second problem is that the study does not directly examine the

impact the death penalty has on the bargaining process in cases that are

actually noticed for the death penalty. The study posits that the effect of the

death penalty may not be limited to defendants who are actually noticed for

the death penalty because “its specter may have encouraged some

defendants to secure plea bargains after the [district attorney] merely

mentioned a death sentence as a possibility but before he actually issued a

actual capital charging dynamics. District attorneys do not deem all firstdegree

defendant is charged with first-degree murder under New York’s statute is

sufficient to permit the prosecutor to seek the death sentence, the

prosecutor’s mere mention of the possibility of seeking the death penalty

against a defendant is unlikely to be viewed as a credible threat because the

may limit the study’s generalizability: (1) the limited scope of New York’s death penalty

(i.e., felony murder is ineligible for the death penalty); (2) New York’s provision allowing

defendants the right to plead guilty and automatically receive life imprisonment; and (3) the

dramatic increase in the quality of defense counsel available to capital defendants resulting

from the creation of the state-initiated Capital Defender Office, which was part of the capital

the death penalty statute in 2004, just four years after the time frame the study examines.

CLASS 1, 17–18 (2004) (explaining that different prosecutors in different offices, or even

within the same office, may not evaluate a case as death eligible, even when the case

satisfies all of the statutory criteria for death eligibility); Glenn L. Pierce & Michael L.

46 (2002) (describing the same phenomenon).

81 This observation is underscored by the fact that prosecutors only formally sought the

death eligible, it is more plausible that the defendant would wait until the

prosecutor actually carried out her threat to seek the death penalty before

agreeing to a plea bargain. In fact, defense counsel, who is typically a

repeat player with the prosecutor, is likely to advise her client as to whether

The study also implausibly assumes, without evidence, that district

attorneys (or defense counsel) actually mention the possibility of the death

sentence in all cases where an indictment for first-degree murder is

obtained. This is especially unlikely because capital defendants are

permitted to accept plea bargains allowing them to avoid the death sentence

after their cases are noticed for the death penalty, but they do not enjoy a

constitutional right to withdraw guilty pleas in capital cases when the pleas

jurisdictions (including New York) permit capital defendants to accept plea

withdrawn after plea bargains were reached. Therefore, if the assumption

that the mere possibility of a death notice influences defendants’ plea

calculus is incorrect, then the study’s treatment group includes defendants

who are not impacted by the possible threat of the death penalty and the

treatment effect will be biased towards zero because of systematic

measurement error. Stated differently, the treatment group will actually

contain individuals who should be either in the control group or entirely

excluded from the analysis.

The New York State study defends this approach by characterizing its

estimates of “average treatment effect” (ATE) or average treatment effect

the plea-bargaining context).

game; the same lawyers negotiate pleas again and again.”).

defendant does not have a constitutional right to withdraw a guilty plea in all circumstances),

constitutional right to withdraw a permissible guilty plea in a capital case and that motions to

withdraw a plea must be assessed on a case-by-case basis).

84 DAVID C. BALDUS ET AL., EQUAL JUSTICE AND THE DEATH PENALTY: A LEGAL AND

parts: in the first phase, the court is only concerned with the question of guilt; if the

defendant is convicted of capital murder in the first phase, the same jury proceeds to the

III.A (discussing Georgia’s capital charging-and-sentencing process and noting that

defendants are allowed to accept pleas up until the penalty phase).

of interest and may not always be of greatest scientific or policy

estimates can be accurately characterized as “intent to treat” estimates

because of the reasons previously stated: (1) prosecutors do not deem all

death-eligible cases as “death worthy,” (2) not all death-eligible defendants

(or their counsel) believe their cases are at risk for the death penalty, and (3)

prosecutors do not “threaten” the death penalty in all (or even the vast

majority) of death-eligible cases. Furthermore, the study does not alleviate

this concern because it does not distinguish cases in which a threat was ever

mentioned from the larger group of defendants indicted for first-degree

scholars have repeatedly remarked that the ATT is both easier to identify

and likely to be more theoretically informative because it describes the

impact of the treatment only among the units who are actually exposed to

OF QUANTITATIVE METHODS IN PSYCHOLOGY 3, 7–8 (Roger E. Millsap & Alberto Maydeu-

Olivares eds., 2009) (defining ITT, ATE, and ATT causal effects).

measures the average effect of the treatment per person offered the treatment, irrespective of

how many treatment group members actually received it; (2) ATE measures the average

effect of the treatment if all members in the treatment group actually received the treatment;

and (3) ATT measures the average treatment effect per person receiving the treatment. Lisa

EVOLVING ANALYTIC APPROACHES 75, 86–87 (Howard S. Bloom ed., 2006).

effect “is commonly featured in connection with randomized clinical trials,” in order to

REVS. 85, 85 (2002) (arguing that the “upside” of noncompliance is that it more closely

resembles the heterogeneous population of future treatment groups).

possibly dynamic treatments to individual characteristics . . . the more imperative it becomes

to acknowledge treatment actually received as an important source of variation in treatment

effect.”).

INFERENCE 43 (2007) (“[T]he average treatment effect among the treated is a theoretically

ANN. REV. SOC. 21, 24 (2010) (same).

The New York State study should be applauded for highlighting this

gap in the literature and making an important empirical contribution to the

existing debate, although the limitations of the data partly undermine the

significant improvement on that seminal study would entail several

modifications. First, it would examine a jurisdiction that more actively

pursues the death penalty with respect to both sentencing individuals to

examine actual treatment effects and not merely “intent to treat” effects. In

fact, prior research has appropriately defined the “treatment effect” of the

death penalty as the government’s “decision to file a death notice that

Finally, it would control for a wider range of case factors relevant to

all of these improvements by analyzing a rich data set from Georgia, which

is better suited to test this hypothesis.

PSYCHOL. 688, 689–90 (1974).

94 It is important to make a distinction between those jurisdictions that actively pursue

the death penalty but infrequently execute individuals and those that actively pursue the

death penalty and execute defendants. California, for example, has nearly double the death

row population of any other state (721 death row inmates as of January 1, 2011), but rarely

executes inmates who have been sentenced to death. CAL. COMM’N ON THE FAIR ADMIN. OF

JUSTICE, REPORT AND RECOMMENDATIONS ON THE ADMINISTRATION OF THE DEATH PENALTY

IN CALIFORNIA 21–27 (2008); DEBORAH FINS, NAACP LEGAL DEF. & EDUC. FUND, DEATH

ROW U.S.A. 34, 39–45 (2011).

96 The New York study examines the following case-level factors: defendant’s sex,

race/ethnicity, age, number of prior convictions, county of arrest, original charge, and plea

characteristics, contemporaneous convictions, and specific case factors identified in the

statute that make a case a death-eligible crime. The supplemental national cross-section

analysis includes both offender and victim demographic information, but lacks legally

Taking into account more case information also permits the analyst to determine whether the

assumptions of the “natural experiment” actually hold—that is, whether the treatment and

control groups are truly indistinguishable except for the intervention. Richard A. Berk,

421, 428 (2005).

Prosecutors in Georgia have aggressively sought the death penalty

since the practice first began in the colonies in 1608—Georgia ranks fifth in

in the nation with respect to total executions since the death penalty was

the time of this writing, the most recent execution carried out in Georgia

the most influential state in shaping national death penalty policy in the

originating in Georgia have set legal precedent with respect to the

The following section provides a brief history of Georgia’s current capital

statute.

A. HISTORY AND DESCRIPTION OF THE MODERN STATUTE

invalidated Georgia’s death penalty statute, ruling that the lack of

97 M. WATT ESPY & JOHN ORTIZ SMYKLA, EXECUTIONS IN THE UNITED STATES, 1608–

2002: THE ESPY FILE 2 (ICPSR 4th ed. 2004); DEATH PENALTY INFO. CTR., FACTS ABOUT THE

(providing information about executions in Georgia from 2003 through the present).

at B1.

101 408 U.S. 238, 239–40 (1972) (per curiam) (holding that unguided-discretion death

penalty statutes are unconstitutional).

102 428 U.S. 153, 207 (1976) (holding that guided-discretion capital statutes are

constitutionally permissible).

(finding statistical evidence of system-wide discrimination irrelevant; the defendant must

(holding that capital defendants enjoy the presumption of innocence and do not have the

death penalty may be imposed as long as the jury finds at least one valid aggravating

circumstance, and nonstatutory aggravating circumstances may also be considered by the

U.S. 917, 917 (1977) (declaring death penalty judgment for nonhomicidal kidnapping with

death penalty for nonhomicidal rape of an adult unconstitutional).

104 408 U.S. 238.

sentencing guidance for capital jurors was a violation of the Eighth

Amendment, and subsequently invalidated all capital statutes that lacked

death penalty legislation the following January and the bill was signed into

was soon codified; it provided for eleven separate instances where the death

Less than a year later, Troy Leon Gregg was convicted of murder and

armed robbery and sentenced to death under Georgia’s new death penalty

statute. The U.S. Supreme Court would eventually grant certiorari in

neither the absence of sentencing guidelines nor single-verdict procedures violated the

Fourteenth Amendment. McGautha v. California, 402 U.S. 183, 196–208, 210–13 (1971).

H. HAINES, AGAINST CAPITAL PUNISHMENT: THE ANTI-DEATH PENALTY MOVEMENT IN

AMERICA, 1972–1994, at 37–39 (1996).

their sentences commuted to life imprisonment. Although there was widespread speculation

by death penalty proponents that many of these inmates would kill again once released from

REV. 5, 23–24 (1989).

106 MICHAEL MEARS, THE DEATH PENALTY IN GEORGIA: A MODERN HISTORY, 1970–2000,

at 14–41 (1999) (providing a detailed history of the modern death penalty in Georgia). On

officially restore capital punishment when Governor Reubin Askew signed new death

107 1973 Ga. Laws 163–65, § 3 (originally codified at GA. CODE ANN. § 27-2534.1

(1973); current version at GA. CODE ANN. § 17-10-30 (West 2003)).

108 Gregg v. Georgia, 428 U.S. 153 (1976).

109 Proffitt v. Florida, 428 U.S. 242 (1976).

110 Jurek v. Texas, 428 U.S. 262 (1976).

did not by itself violate the Eighth Amendment and all three of the capital statutes contained

the new statutes eliminated arbitrariness and bias in capital sentencing; rather, the court

based its decision on whether the procedural reforms enacted in each statute were capable of

As a result of the decision, thirty-four states, the federal government, and

the U.S. Armed Forces currently permit the death penalty in their

1973 and enumerated eleven separate instances where the death penalty

could be imposed on someone convicted of a capital offense:

(a) The death penalty may be imposed for the offenses of aircraft hijacking or treason,

in any case.

(b) In all cases of other offenses for which the death penalty may be authorized, the

judge shall consider, or he shall include in his instructions to the jury for it to

consider, any mitigating circumstances or aggravating circumstances otherwise

authorized by law and any of the following statutory aggravating circumstances which

may be supported by the evidence:

(1) The offense of murder, rape, armed robbery, or kidnapping was committed by a

(2) The offense of murder, rape, armed robbery, or kidnapping was committed

while the offender was engaged in the commission of another capital felony, or

aggravated battery, or the offense of murder was committed while the offender

was engaged in the commission of burglary or arson in the first degree.

(3) The offender by his act of murder, armed robbery, or kidnapping knowingly

created a great risk of death to more than one person in a public place by means of

a weapon or device which would normally be hazardous to the lives of more than

one person.

(4) The offender committed the offense of murder for himself or another, for the

purpose of receiving money or any other thing of monetary value.

(5) The murder of a judicial officer, former judicial officer, district attorney or

solicitor or former district attorney or solicitor during or because of the exercise of

his official duty.

(6) The offender caused or directed another to commit murder or committed

murder as an agent or employee of another person.

(7) The offense of murder, rape, armed robbery, or kidnapping was outrageously

or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind,

or an aggravated battery to the victim.

(8) The offense of murder was committed against any peace officer, corrections

employee or fireman while engaged in the performance of his official duties.

(9) The offense of murder was committed by a person in, or who has escaped

from, the lawful custody of a peace officer or place of lawful confinement.

114 The italicized portion of the death penalty statute was subsequently declared

unconstitutionally vague. Arnold v. State, 224 S.E.2d 386, 392 (Ga. 1976).

(10) The murder was committed for the purpose of avoiding, interfering with, or

preventing a lawful arrest or custody in a place of lawful confinement, of himself

or another.

(c) The statutory instructions as determined by the trial judge to be warranted by the

evidence shall be given in charge and in writing to the jury for its deliberation. The

jury, if its verdict be a recommendation of death, shall designate in writing, signed by

the foreman of the jury, the aggravating circumstance or circumstances which it found

beyond a reasonable doubt. In non-jury cases the judge shall make such designation.

Except in cases of treason or aircraft hijacking, unless at least one of the statutory

aggravating circumstances enumerated in Code section 27-2434.1(b) is so found, the

death penalty shall not be imposed.115

With very few changes, Georgia’s death penalty legislation has

however, there were several changes mandated by subsequent U.S.

Supreme Court rulings. The year after the Court officially reinstated

defendants convicted of non-homicidal rape and kidnapping with bodily

Georgia’s juvenile death penalty was also invalidated following the Court’s

defendants who were under the age of eighteen during the commission of

their crime. The Georgia statute had permitted the death penalty for

115 1973 Ga. Laws 163–65, § 3 (emphasis added) (originally codified at GA. CODE ANN.

§ 27-2534.1 (1973); current version at GA. CODE ANN. § 17-10-30 (West 2003)).

Throughout the remainder of this Article, the specific elements of the capital statute listed in

116 In 1996 and 1997, there were two unsuccessful proposals to lower the age of

eligibility for the death penalty to sixteen. There were also two attempts to add an additional

aggravating circumstance that would allow the death penalty in the event a person was

convicted of the rape of a child under the age of twelve; however, this legislation was also

added: “The offense of murder, rape, or kidnapping was committed by a person previously

convicted of rape, aggravated sodomy, aggravated child molestation, or aggravated sexual

battery.” GA. CODE ANN. § 17-10-30(b)(11) (West Supp. 2012).

(1977). The current Georgia statute permits the death penalty for murder (malice or felony),

J., concurring) (“Of course the crimes of treason and aircraft hijacking, along with murder,

remain capital felonies . . . .”).

118 543 U.S. 551 (2005).

inappropriately limit the application of the death penalty).

B. LIFE WITHOUT THE POSSIBILITY OF PAROLE

Georgia’s life sentence without the possibility of parole statute was

enacted in May 1993 and allowed juries to deny parole to defendants

states that authorize the death penalty have enacted similar

the administration of capital punishment in Georgia by restricting LWOP to

murder cases in which the prosecution has filed notices of intent to seek the

cases they do not believe are deserving of the death penalty, but they do

was convicted in Adel, Georgia, of the murder of Donna Brown and

verdict and sentence, Alapaha Judicial Circuit District Attorney Bob Ellis

remarked, “Had we not sought the death penalty, we could have not gotten

Even in jurisdictions that do not restrict the LWOP sentencing option

to death cases, it is unlikely that a defendant charged with a death-eligible

homicide offense would agree to plea to an LWOP sentence without the

threat of a death sentence at trial. Absent the risk of a death sentence at

trial, the defendant could do no worse at trial than the LWOP plea offered

by the prosecutor. The defendant would be better off taking her chances,

120 1993 Ga. Laws 1656–57, § 4 (codified at GA. CODE ANN. § 17-10-30.1 (repealed

2009)).

122 In 2009, after two failed attempts, the Georgia General Assembly enacted legislation

permitting the imposition of life without the possibility of parole in murder cases,

§ 17, 151st Gen. Assemb., Reg. Sess. (Ga. 2011) (codifying the 2009 law at GA. CODE ANN.

§ 17-10-16.1 (West Supp. 2012)).

without the possibility of parole in exchange for withdrawal of death penalty); Gene

1:00 AM), http://www.thenewstribune.com/2007/07/30/121534/strategy-changing-on-deathpenalty.

html (quoting a prosecutor explaining that the threat of the death penalty is the only

leverage available in some cases).

2001, at A1.

This is particularly true in jurisdictions such as Georgia that permit judges

and juries to impose a life with the possibility of parole sentence for anyone

prosecutor may enter into a plea agreement at any time up until the jury

renders its sentence in the penalty phase. The following section briefly

outlines the major stages of a case from indictment through the penalty

phase that differentiate capital from noncapital cases.

jurisdiction, so a grand jury is required to decide formally whether there is

probable cause to believe that the accused has committed the specified

charge is a capital felony, two attorneys must be appointed before the

accused is called upon to plea to the charges, which generally occurs at the

arraignment. Prior to arraignment, a pretrial conference is held and the

prosecuting attorney must announce whether she intends to seek the death

penalty and then file a notice of intent with the clerk of the superior

that the death penalty is often the only leverage they have in plea negotiations in murder

cases). Indeed, the likelihood of receiving a straight life sentence at trial in a capital murder

case in Georgia does not appear to be particularly slim. From 1993 to 2000, 31% of capital

cases disposed by trial resulted in straight life sentences, whereas 36% received LWOP and

32% received the death sentence.

128 GA. CODE ANN. § 17-10-30 (West 2003). In economics parlance, there is no “price”

or “penalty” associated with a defendant invoking her constitutional right to trial under the

Georgia regime in place at the time of this study if the prosecutor only offers LWOP in a

noncapital case. To be sure, individuals who finance their own defenses will incur those

costs, but the vast majority of murder defendants are represented by court-appointed counsel.

129 In the interest of space, only the most relevant stages of the “typical” progression of a

Georgia death penalty case through automatic appeal are described. The qualifier “typical”

is used because there are numerous factors that may cause a case to deviate from this

abbreviated description.

131 Upon a showing of indigence, an individual indicted for a capital felony is eligible for

appointed counsel. Pursuant to the Georgia Indigent Defense Act of 2003 (GIDA), an

indigent is “[a] person charged with a . . . [crime] punishable by imprisonment who earns

less than 100 percent of the federal poverty guidelines unless there is evidence that the

person has other resources that might reasonably be used to employ a lawyer without undue

hardship on the person or his or her dependents.” GA. CODE ANN. § 17-12-2 (West 2003 &

the indictment and ask the defendant to plead to the capital felony and any

lesser-included offenses charged. The defendant is allowed to plead guilty,

from whom the state and defense must select a total of twelve jurors and

in two phases: the conviction phase (also commonly referred to as the

guilt/innocence phase) and, if the defendant is found guilty of a capital

felony, the penalty phase. Immediately prior to the conviction phase, the

court must conduct a conference with the state, defense counsel, and the

In situations where the defendant is found guilty of capital murder at

the conclusion of the conviction phase, the case proceeds to the penalty

phase (i.e., a presentencing hearing) where both the prosecutor and defense

counsel may present witnesses and evidence regarding the statutory

aggravating circumstances, as well as nonstatutory aggravating and

only if they find one or more statutory aggravating circumstances beyond a

conviction for a capital felony and a sentence of death, the defendant may

challenge her conviction or death sentence by: (1) filing a motion for a new

trial with the superior court, or (2) filing a direct appeal with the Georgia

132 UNIF. APP. R. IIC(1). The specific aggravating circumstances the government intends

S.E.2d 778 (Ga. 2005).

133 UNIF. APP. R. IIC(1).

ANN. § 17-7-95(a).

136 GA. CONST. art. 6, § 4.

137 UNIF. APP. R. IIIA(1).

(holding that nonstatutory aggravating circumstances may be considered by the jury during

the presentence hearing).

which prohibited judge-imposed death sentences, judges in Georgia were permitted to

sentence a capital defendant to death if the defendant waived her right to a jury at the penalty

phase. This situation, however, never occurred in the years under investigation for this

study.

case will automatically be appealed to the Georgia Supreme Court within

ten days of the filing of the trial transcript by the court reporter of the

It is worth emphasizing that it is very common for multiple years to

elapse between the initial arrest and the trial in death penalty cases, so both

parties have ample time to negotiate a plea agreement. The data analyzed

for defendants noticed for the death penalty and opting for trial was 31.9

months. The average time for defendants noticed for the death penalty but

ultimately pleading at some point before the penalty phase was

approximately 24.6 months. For defendants noticed for the death penalty,

irrespective of whether they pleaded or took their cases to trial, the average

amount of time between arrest and sentencing was 27.9 months. By

comparison, the average time between arrest and sentencing for deatheligible

defendants not facing the death penalty but ultimately convicted of

murder was 17.4 months for those opting for trial and 13.5 months for those

who pleaded (and 15.9 months irrespective of method of disposition). The

specific data collected in Georgia and analyzed in this Article are discussed

in the next section.

The current study analyzes eight years of death penalty charging-andsentencing

data from Georgia (1993–2000) and addresses each of the

aforementioned modifications in an effort to assess more accurately the

used for these analyses were collected from the Georgia Bureau of

Investigation (GBI), the Georgia Department of Corrections (GDC), the

Office of the Georgia Capital Defender (GCD), the Clerk’s Office of the

140 GA. CODE ANN. § 17-10-35; UNIF. APP. R. IVA(1)–(2).

141 GA. CODE ANN. § 17-10-35.

144 This particular time frame was selected for two important reasons. First, Georgia’s

life without the possibility of parole legislation was enacted in 1993. The legislation was

specifically designed as a sentencing alternative in capital murder trials, therefore potentially

having a significant impact on prosecutorial discretion. GA. CODE ANN. § 17-10-30.1

(repealed 2009); 1993 Ga. Laws 1656–57, § 4. Second, in October 1992, the Georgia

General Assembly, along with the Georgia Supreme Court, established a statewide agency to

at 4. For a discussion of additional advantages of examining Georgia’s capital charging-andsentencing

each homicide case in Georgia with respect to the defendant,

codefendant(s), victim(s), judge, prosecutor, defense counsel, and the crime.

for the determination of which defendants are actually eligible for the death

penalty in Georgia. Information obtained concerning prosecutors’ actual

decisions to seek the death penalty in each case permit the examination of a

inclusion of a much richer set of statistical controls than were considered in

prior research.

During the period under investigation (1993–2000), prosecutors filed a

notice of intent to seek the death penalty in 400 cases and fifty-four

charged cases in which the method of disposition is known, 59% (234) were

resolved by plea and 41% (161) were resolved by trial. With respect to

cases that were technically death eligible under the Georgia statute but in

which the prosecutor declined to seek the death penalty, 39% (350) were

disposed by plea and 61% (551) disposed by trial. Of the 724 cases

resulting in a murder conviction that were ineligible for the death penalty,

rate for cases noticed for the death penalty ranged from 38.7% (in 1998) to

of data on 2,328 murder convictions in Georgia between 1995 and 2004); Raymond

Paternoster, The Death Penalty in Georgia, 1995–2004 (Sept. 17, 2007) (unpublished report)

(on file with the Journal of Criminal Law and Criminology).

148 The original statute permitted the death penalty for the crimes of murder, rape, armed

robbery, or kidnapping with bodily injury, but rape, armed robbery, and kidnapping with

bodily injury were removed as death-eligible offenses following the Supreme Court’s

150 These 400 death notices and the fifty-four death sentences are with respect to incident

dates, not disposition dates. Seven of these sentences (12.9%) were imposed after 2000.

151 Forty-five percent (584) of all death-eligible cases were disposed by plea.

Information concerning the method of disposition was missing for seventeen cases in the

sample (0.8%). A total of 1,628 non-capitally-charged murder convictions were obtained in

the period under study—34% were disposed by plea. In these data, there are twenty-eight

cases in which the defendant was initially noticed for the death penalty but was ultimately

acquitted, had charges dismissed, or was convicted of a lesser offense.

75% (in 1999). The plea rate for death-eligible cases that were disposed by

plea in which the defendant did not face the death penalty ranged from 31%

(in 1998) to 53% (in 1993).

A. DESIGNATION OF TREATMENT AND CONTROL GROUPS

The “treatment group” for the purposes of the study consists of

defendants who were noticed for the death penalty. The “control group”

was comprised of defendants eligible for the death penalty, but against

in defining the control group is specifying what qualifies as a “deatheligible”

case. Some analysts suggest that any homicide committed in

Georgia could be death eligible resulting from the state’s felony-murder

reads: “The offense of murder, rape, armed robbery, or kidnapping was

outrageously or wantonly vile, horrible, or inhuman in that it involved

to this ambiguity, two different approaches were adopted to identify deatheligible

defendants.

The first approach categorizes defendants as eligible for the death

penalty based on the presence of at least one of the special aggravating

circumstances listed in Georgia’s capital statute. The presence of these

specific factors in each case was assessed in two ways. First, data from a

convictions obtained between 1995 and 2004 were used to determine the

number of aggravating circumstances present in the 967 murder convictions

penalty studies in a similar fashion).

L. REV. 941, 945 (1986) (arguing that the “especially heinous” aggravating factor is

overinclusive, has been applied inconsistently, and fails to guide prosecutorial discretion).

special circumstance was not unconstitutionally vague on its face. 446 U.S. 420, 420 (1980).

Alapaha

3

0.8

Alcovy

6

1.5

Appalachian

1

0.3

Atlanta

21

5.3

Atlantic

11

2.8

Augusta

29

7.2

Blue Ridge

3

0.8

Brunswick

16

4.0

Chattahoochee

16

4.0

Cherokee

9

2.3

Clayton

19

4.8

Cobb

11

2.8

Conasauga

1

0.3

Cordele

3

0.8

Coweta

6

1.5

Dougherty

7

1.8

Douglas

3

0.8

Dublin

1

0.3

Eastern

10

2.5

Flint

9

2.3

Griffin

17

4.3

Gwinnett

13

3.3

Houston

2

0.5

Lookout Mountain

3

0.8

Macon

8

2.0

Middle

8

2.0

Mountain

2

0.5

Northeastern

11

2.8

Northern

9

2.3

Ocmulgee

26

6.5

Oconee

2

0.5

Ogeechee

10

2.5

Pataula

3

0.8

Paulding

5

1.3

Rockdale

4

1.0

Rome

5

1.3

South Georgia

2

0.5

Southern

12

3.0

Southwestern

4

1.0

Stone Mountain

25

6.3

Tallapoosa

6

1.5

Tifton

8

2.0

Waycross

12

3.0

Western 18 4.5

The second manner in which the presence of statutorily defined

special circumstances from inmate records from the Georgia Department of

a defendant is eligible for the death penalty when “[t]he offense of murder,

rape, armed robbery, or kidnapping was committed by a person with a prior

capital felonies are defined as murder, rape, armed robbery, or

for which the death penalty can be imposed are murder (malice or felony),

circumstance, a defendant is eligible for the death penalty when “[t]he

offense of murder, rape, armed robbery, or kidnapping was committed

while the offender was engaged in the commission of another capital felony

or aggravated battery, or the offense of murder was committed while the

offender was engaged in the commission of burglary or arson in the first

committing these crimes—or had one of these crimes initially listed in their

157 GA. CODE ANN. § 17-10-30(b)(1).

158 Merrow v. State, 601 S.E.2d 428, 431 (Ga. Ct. App. 2004) (“A capital offense . . .

refers to offenses defined by statute as capital offenses, not necessarily offenses for which

the state could or actually does seek the death penalty.” (quoting White v. State, 414 S.E.2d

(explaining that nonhomicide “capital offenses” listed in the death penalty statute qualify as

“capital felonies” for purposes of applying the aggravating circumstance provision of the

capital statute).

159 Collins v. State, 236 S.E.2d 759, 762 (Ga. 1977) (Jordan, J., concurring) (“Of course

the crimes of treason and aircraft hijacking, along with murder, remain capital

felonies . . . .”).

160 GA. CODE ANN. § 17-10-30(b)(2).

161 The major limitation of this measure is that the Georgia Department of Corrections

does not technically distinguish between offenses committed during the actual commission

of the murder and offenses the defendant was simply convicted of during the same trial as

the murder. As a check, several cases were randomly selected from the Department of

Corrections website that lists the separate offenses (if a multiple-offense case) by the

incident date. In the vast majority of these cases, the murder and other felony were

determining death eligibility. I also cross-referenced the conviction data from the Georgia

Department of Corrections with the arrest data from the Georgia Bureau of Investigation in

order to determine whether the contemporary felony present at time of arrest was consistent

with the conviction data for lesser felonies. This additional check supports the assertion that

the murder and the other felony conviction were truly contemporaneous.

of murdering multiple victims were also categorized as death eligible

“offender committed the offense of murder for himself or another, for the

purpose of receiving money or any other thing of monetary value”—was

determined by a contemporaneous conviction for an economically

motivated crime (i.e., robbery and theft). Admittedly, the three factors

employed to determine death-eligible defendants are narrow and ignore a

host of other factors listed in the statute, but it is worth noting that prior

research strongly suggests that the presence of multiple victims and a

contemporaneous felony are “the most commonly used factors in death

sentence cases, and thus account for a high proportion of death eligible

also the most common factors used by judges and jurors to justify death

sentences, as well as the strongest predictors of a death sentence, even after

162 The presence of multiple victims or a contemporaneous felony is commonly

ROBERT MAURO, DEATH AND DISCRIMINATION: RACIAL DISPARITIES IN CAPITAL SENTENCING

types of aggravating circumstances the most common set of aggravating circumstances used

by prosecutors, jurors, and judges to justify death sentences, but the number of victims is

consistently one of the strongest predictors of a death sentence, even after holding other

REV. 1283, 1328–32 (1997).

To be sure, the multiple victim measure is imperfect because it is possible that a

defendant murdered multiple victims on the same day but in unrelated situations. The vast

majority of cases, however, are single victim (87.3%), so this measure, in and of itself, does

possible, even likely, then, that a defendant’s categorization as death eligible will be valid on

one or more of these measures.

162, at 1329 (“[T]he felony murder special circumstances play the predominant role in

defining death-eligibility.”).

1329–30 (explaining three-quarters of death-sentenced cases involved a felony-murder

(“[T]he standards by which [prosecutors] decide whether to charge a capital felony will be

the same as those by which the jury will decide the questions of guilt and sentence.”);

importantly, data on death eligibility from the more detailed study

the cases in the current sample, so a more “fine-grained” assessment of

Death eligibility was also limited to situations in which the defendant

was ultimately convicted of murder. Obviously prosecutors seek the death

penalty against defendants prior to obtaining a guilty plea or guilty verdict

at trial, but limiting the pool of death-eligible defendants to those who are

actually convicted of murder serves as a proxy for strength of evidence.

Other scholars have employed this limiting strategy when examining capital

fact that Georgia’s murder statute does not include “degrees” of murder like

many other states. Instead, the statute specifies that individuals may be

charged with malice murder (intentional) or felony murder (unintentional,

of murder may be death eligible, depending on the presence of at least one

statutory aggravating circumstance. “Lesser” degrees of homicide are

unlikely that prosecutors will offer a charge bargain from murder to

manslaughter when the available evidence permits a conviction for murder,

death sentences imposed in Georgia and Florida involved cases with a felony circumstance).

special circumstances failed to classify 36% of cases identified by the AJC study (and 16%

of cases noticed for the death penalty). Thirty-nine percent of the cases misclassified were

murder).

168 Voluntary manslaughter carries a maximum sentence of twenty years and involuntary

manslaughter carries a maximum sentence of ten years. GA. CODE ANN. § 16-5-2 (voluntary

adjudication, the vast majority of defendants initially charged with murder are ultimately

generally pursue every murder case they can, which is why the acquittal rate in murder cases

can be politically costly for prosecutors and this is part of the reason they dedicate resources

prosecutors are not likely to seek the death penalty in cases in which they

believe a conviction for manslaughter is warranted, even in the presence of

aggravating circumstances that would make the case eligible for the death

Focusing exclusively on defendants subsequently convicted of murder

suffers from the drawback of excluding death-noticed defendants who are

not ultimately convicted of murder. In these data, twenty-eight individuals

(7% of death-noticed defendants) were initially noticed for the death

penalty, but later were acquitted, had their charges dismissed, or were

convicted of an offense other than murder. Nevertheless, a closer

inspection of the data supports the previously stated intuition that

prosecutors do not typically offer charge bargains in exchange for guilty

pleas. Of the twelve cases noticed for the death penalty that resulted in a

plea bargain for a charge other than murder, only two were for

analyses (i.e., underinclusion) in an attempt to most accurately compare

“apples to apples” would appear to outweigh its disadvantages.

The second approach utilized to identify death-eligible defendants was

eligible. Because some scholars claim that capital statutes like Georgia’s

definition of death eligibility was employed in order to determine whether

the results are robust to the specific criteria used to identify the control

group.

B. STATISTICAL MODEL

There are, essentially, two reasons why death-noticing and pleabargaining

decisions might be related. First, the decisions may be causally

to trying even weak murder cases).

chances of winning, but it also increases the embarrassment and publicity of losing); William

(explaining that defeats at trial for prosecutors are so vivid because they are rare, so

prosecutors are less likely to pursue cases that are unwinnable).

171 The remaining plea bargains to nonhomicide charges were for aggravated assault,

armed robbery, burglary, concealing the death of another, and kidnapping.

173 Death noticing typically precedes plea negotiations. In fact, it is common for

prosecutors to announce the intent to seek the death penalty before having obtained an

indictment or meeting with the defendant. It remains plausible, however, that some

because they are caused by other shared factors (i.e., “third-variables”) that

may or may not be observed, and if these factors are taken into account, the

relationship between death noticing and plea bargaining disappears; that is,

the relationship between death noticing and plea bargaining is not

In an effort to determine the impact of the death penalty on the

decision to go to trial, a conditional fixed-effects logit model is estimated

according to the following equation:

DPNotice is a dummy (binary) variable indicating whether the prosecutor

sought the death penalty against the defendant. The model makes the

prosecutors elect to file a death notice following an initial failed attempt to obtain a plea

bargain, but ultimately withdraw the death notice after a defendant agrees to a negotiated

plea. This potential complication, known as simultaneous causation, is addressed more fully

in Part VI.B.

174 For a detailed discussion of the key requirements of causal inference, see RICHARD A.

BERK, REGRESSION ANALYSIS: A CONSTRUCTIVE CRITIQUE 82–83 (2004). It is important to

emphasize that researchers need not control for every conceivable variable possibly

influencing plea bargaining. Candidate variables must meet three conditions: (1) correlated

with the key causal variable (i.e., death-noticing decision); (2) affects the outcome variable

(i.e., plea-bargaining decision); and (3) causally prior to the key causal variable. Lee Epstein

conditions is absent, then controlling for the rival variable is not only unnecessary when

examining the causal impact of the key variable of interest, but it may also lead to incorrect

inferences if the variable is a consequence of the key causal variable (i.e., “post-treatment”

INFERENCE IN QUALITATIVE RESEARCH 78 (1994) (controlling for a consequence of the cause

produces the incorrect causal effect).

175 WILLIAM H. GREENE, ECONOMETRIC ANALYSIS 839 (4th ed. 2000).

(4th ed. 2012).

The fixed-effects specification is particularly advisable with these data

because the models control for unobserved heterogeneity across judicial

omitted variable bias and lead to inconsistent estimates of a hypothesized

839, due to the bias introduced by using the unconditional fixed effects (indicator set) when

ANALYSIS 379, 384 (2001). An acceptable probit alternative specification does not exist

because there is no sufficient statistic that allows the fixed effects to be conditioned out of

ECONOMETRICS J. 98, 102–03 (2004). I also reanalyzed the data with the unconditional

estimator and obtained similar results.

Alternative specifications were analyzed employing a random-effects estimator (i.e.,

random intercept models). ANDERS SKRONDAL & SOPHIA RABE-HESKETH, GENERALIZED

LATENT VARIABLE MODELING: MULTILEVEL, LONGITUDINAL, AND STRUCTURAL EQUATION

MODELS 49–50 (2004). Random effects models rely on the strong assumption that the

unobserved cluster-specific influences are uncorrelated with individual-level case

characteristics, so fixed-effects models are preferred when that assumption is unrealistic.

intercepts) to be correlated with the individual-level variables by creating an aggregated

measure of the individual variables for each group and including that measure as a predictor

in the model. Any covariance between an individual-level predictor and a group-level

random effect must operate through the covariance between the group-level average of the

individual-level predictor and that random effect; therefore, inclusion of the group-level

average of the predictor as a covariate in the model will eliminate any confounding between

the individual-level predictor and omitted variables at the group level. STEPHEN W.

RAUDENBUSH & ANTHONY S. BRYK, HIERARCHICAL LINEAR MODELS: APPLICATIONS AND

HILL, DATA ANALYSIS USING REGRESSION AND MULTILEVEL/HIERARCHICAL MODELS 506

(2007). Results (not reported) from these models were very similar to those obtained from

the fixed-effects specifications.

179 The variance of the jurisdiction-level effects tells us the extent to which there is

variability among jurisdictions in the data beyond that explained by the other regression

predictors. Similarly, the year effects represent unexplained variation among years. Gelman

STAT. METHODS MED. RES. 3, 9 (2004) (“In the binary response case, conditional likelihood

estimation is the only approach that is less susceptible [to confounding of treatment effect

due to cluster-level unobserved heterogeneity], because it conditions out all cluster-level

information that may confound within-cluster effects.”).

organizes the state’s 159 counties into forty-nine superior court judicial

notices by county and judicial circuit are presented in, respectively, Tables

1 and 2. The specific variables used, coding conventions adopted, and

summary statistics can be found in Appendix A and Tables 3, 4, and 5.

Although the model controls for average differences across

jurisdictions and average differences across years, it does not take into

randomly select cases for the death penalty, so the estimation of the true

impact of capital punishment on trials may be biased and inconsistent if the

death-noticing decision is correlated with some other unobserved

variable(s) that also has a causal impact on the decision to go to trial (i.e.,

endogeneity bias). Relatedly, if a death-noticing decision is also influenced

by a prior failed plea negotiation (i.e., simultaneous causality), death

noticing is also endogenous because it will be correlated with an

unobserved variable influencing both decisions: preliminary plea

negotiation. The fixed-effects logit model discussed earlier implicitly

assumes that all factors simultaneously influencing the death noticing and

trial decisions are included in the model via the covariates and circuit and

year fixed effects. This may be a questionable assumption, so several

alternative models that explicitly account for confounding omitted variables

at the case level are examined in Part VI.B.

181 JUDICIAL COUNCIL OF GA., YOUR GUIDE TO THE GEORGIA COURTS (2003).

182 This is necessary for two important reasons. First, in Georgia, there is one district

attorney per judicial circuit. While large counties comprise a single judicial circuit, many

smaller counties are grouped together to form a single judicial circuit. As a result, a single

prosecutor may be responsible for charging and plea-bargain decisions for several counties

in her judicial circuit. Also, if a judicial circuit consists of multiple counties, trial judges

rotate throughout these counties in the circuit. Treating counties that share a single judicial

circuit as if they were independent ignores the similarities they share in the administration of

capital punishment resulting from shared decisionmakers. Second, death penalty cases are

extremely rare events, so aggregating county-level data to the judicial-circuit level allows

one to observe more cases per contextual unit and better statistically estimate relationships

occurring at both the case- and contextual-level without altering the dependence structure of

aggregating data at the highest level of nesting preserves the dependence structure of the

ANALYSIS 137, 163 (2001) (discussing the difficulties associated with analyzing rare events

in binary data).

183 When the death-noticing decision is correlated with the case-specific error term rather

than just the judicial-circuit or year effect, a simultaneous equation approach is necessary.

LEADERSHIP Q. 1086, 1092 (2010).

C. MISSING DATA

An additional complication with analyzing official homicide records is

statistical analyses must be performed on a full data matrix; therefore, the

Casewise deletion is problematic because it (1) potentially forces

researchers to discard much useful information about the relationships

between variables, (2) results in inefficient parameter estimates due to a

data problems when analyzing official homicide data).

1227, 1228 (1992).

reduction of sample size, and (3) may bias parameter estimates if the data

are not missing completely at random (i.e., if the missing data are not a

least one variable in approximately one-third of the observations in the

Georgia data; however, when it is possible to predict the probability that a

variable is missing information for an observation (using information from

other covariates in the data), the most appropriate strategy is to attempt to

the capital punishment process because death penalty cases in Georgia (and

elsewhere) are very rare occurrences, so it is crucial to retain as much

information as possible.

Over the past two decades, quantitative methodologists have

developed several approaches to “guess” the values of missing data by

using information about the association of the variable of interest with other

variables in the data. A regression-based multiple imputation approach is

employed in these analyses, which provides a significant improvement over

In brief, Stef van Buuren and colleagues’ “fully conditional specification”

(FCS) approach is used because it offers the greatest flexibility in creating

multivariate imputation models by allowing for specialized methods that are

data on a variable-by-variable basis by specifying an imputation model for

each variable, thereby allowing the analyst to preserve unique features of

the data such as bounds, skip patterns, interactions, and bracketed

responses, and to incorporate appropriate constraints between different

A somewhat simplified description of the algorithm is that observed

data are used to impute missing values and incorporate estimation

uncertainty (resulting from analyzing a finite number of observations) and

simulation studies suggest that FCS performs well in a variety of applications. S. van

there are missing variables that follow a mixture of distributions (e.g., continuous, ordinal,

1061.

fundamental uncertainty (resulting from unmodeled variation in the

dependent variable and represented by the stochastic component of the

model) in their prediction of plausible values. For the present study, this

process was repeated five times to create five complete data sets, with each

data set containing different plausible values for missing variables to

account for the uncertainty surrounding the imputations. After these data

sets were created, a complete-case analysis was repeated on each data set.

The overall point estimate of each parameter was obtained by averaging

variance of the point estimate was computed by averaging across the five

estimated variances from within each completed data set, plus the sample

variance in the point estimate across the data sets (multiplied by a factor

The next section presents results from models using both casewise

deletion and multiple imputation strategies.

A. FIXED-EFFECTS LOGIT SPECIFICATIONS

all four models, defendants noticed for the death penalty were significantly

Models 1 and 3 analyze the impact of the death penalty on the probability

of going to trial for defendants classified as death eligible according to the

first criteria discussed: eligibility based on the presence of statutorily

defined elements (hereinafter, “DE”). Models 2 and 4 analyze the impact of

the death penalty on defendants classified as death eligible based on the

defined as:

,

SCOTT LONG, REGRESSION MODELS FOR CATEGORICAL AND LIMITED DEPENDENT VARIABLES

106 (1997).

194 Recall that the models estimate the probability of a defendant taking her case to trial,

so a negative sign on the DPNotice coefficient indicates that defendants noticed for the death

likely to have their cases resolved by plea agreement.

second criteria: murder conviction (hereinafter, “MC”). All specifications

include judicial-circuit and year fixed effects, as well as controls for the

number of codefendants; defendant’s race/ethnicity, gender, and age;

defendant’s employment status at time of arrest; defendant’s marital status;

number of statutory aggravating factors; contemporaneous felony

conviction; prior felony conviction; whether defendant graduated from high

school; number of children defendant has; number of victims; victim

race/ethnicity, gender, and age; relationship between the victim and

The natural coefficients from the logistic regression model, “logit

coefficients or log odds,” lack an intuitive interpretation, so marginal effects

are presented. The marginal effect represents the change in the probability

Model 1 (DE) and Model 2 (MC) reveal that being noticed for the death

penalty reduces the probability of a defendant taking her case to trial by,

respectively, .23 and .22. For Model 1, this means the probability of deathnoticed

defendants going to trial is .37, whereas the probability of

defendants not noticed for death going to trial is .60, all else equal (see

Figure 1). For Model 2, the probabilities are .41 and .63, respectively.

and 5 for summary statistics. Appendix B presents the marginal effects for all of the

covariates in the fixed-effects logit model. Model 1 lists the point estimates for covariates

predicting the probability of a case being disposed by trial. Model 2 displays the effects of

the same covariates on the probability a case is noticed for the death penalty.

the unconditional fixed-effects logit model. The conditional and unconditional fixed-effects

estimates are essentially the same when cluster sizes average at least eight, and the average

marginal effects obtained from the unconditional fixed-effects linear model were nearly

Population-average effects (sometimes referred to as marginal effects) were also

obtained, and these estimates were similar to the conditional and unconditional fixed-effects

estimates. The unconditional fixed-effects estimates represent the difference in the

The population-average effect, on the other hand, represents the difference in probability of

noticed for the death penalty—that is, the estimates do not control unobserved circuit-level

missing information on at least one variable. Specifically, the DE models

lose 31.2% of the cases and the MC models lose 35.9% of the cases. Table

6 presents results from the multiple imputation models. As with the

casewise deletion results previously reported, the coefficient for DPNotice

is statistically significant across all specifications, although coefficients are

slightly smaller with respect to their absolute value. In the Model 3 (DE),

being noticed for the death penalty decreases the probability of trial by .18,

and by .17 in Model 3 (MC). The baseline probabilities for the DE (Model

3) and MC (Model 4) specifications are very similar to the casewise

deletion models (.60 and .64, respectively).

0

0.1

0.2

0.3

0.4

0.5

0.6

0.7

DP Case Non-DP Case

Probability

Plea Trial

DP Notice

-0.234*** -0.218***

-0.184*** -0.168***

(0.038) (0.038)

(0.032) (0.031)

0.603 0.628

0.603 0.635

N

847 1238

1236 1932

Fixed-Effects

Y Y

Y Y

Year Dummies

Y Y

Y Y

*p<.05; **p<.01; ***p<.001

Standard errors adjusted for clustering on judicial circuit.

Models 1 & 3: Death Eligible Subsample.

Models 2 & 4: Murder Conviction Subsample.

Models 3 & 4: Multiple Imputation Estimates.

Pr(Trial) = Probability of trial without a death noticed filed.

All specifications include controls for the number of codefendants, victims,

statutory aggravating factors, contemporaneous felony convictions, prior

felony convictions, and children of defendant; the race/ethnicity, gender, and

age of defendant and victim(s); defendant’s employment status at time of

arrest, marital status, high school graduation status; offender/victim

relationship; and whether the homicide was interracial.

B. SENSITIVITY ANALYSES

Table 7 presents the linear (unconditional) fixed-effects estimates for

the DE and MC models using casewise deletion (Models 1 and 2) and

multiple imputation (Models 3 and 4). The classic fixed-effects linear

model takes the form:

regression models applied to binary dependent variables are commonly

deemed inappropriate for binary data because of heteroscedasticity,

simplicity.

nonnormality, nonsensical predictions, and functional form

check for the conditional fixed-effects logit estimates presented in Table 6.

Unconditional fixed-effects models are most appropriate in the linear

regression context, so the purpose of showing these estimates is to check

that the DPNotice coefficients are similar in terms of direction, magnitude,

linear probability is similar to the linear regression model, so according to

Model 1 (DE and casewise deletion), for example, being noticed for the

death penalty decreases the probability of going to trial by .22 from a

baseline probability of .62, holding all other variables constant.

outcome, rather than a logit or probit model, in order to estimate unconditional fixed effects).

DP Notice -0.217*** -0.212*** -0.186*** -0.173***

(0.048) (0.044) (0.036) (0.034)

Pr(Trial) 0.618 0.645 0.622 0.658

N 852 1238 1238 1932

Fixed-Effects Y Y Y Y

Year Dummies Y Y Y Y

R-Squared

0.18 0.16

*p<.05; **p<.01; ***p<.001

Standard errors adjusted for clustering on judicial circuit.

Models 1 & 3: Death Eligible Subsample.

Models 2 & 4: Murder Conviction Subsample.

Models 3 & 4: Multiple Imputation Estimates.

Pr(Trial) = Probability of trial without a death noticed filed.

All specifications include controls for the number of codefendants, victims,

statutory aggravating factors, contemporaneous felony convictions, prior

felony convictions, and children of defendant; the race/ethnicity, gender, and

age of defendant and victim(s); defendant’s employment status at time of

arrest, marital status, high school graduation status; offender/victim

relationship; and whether the homicide was interracial.

201 Endogeneity occurs when “the values our explanatory variables take on are

sometimes a consequence, rather than a cause, of our dependent variable.” KING ET AL.,

The level of concern over endogeneity bias in observational studies varies across

disciplines—e.g., econometricians tend to be much more concerned about endogeneity than,

for example, epidemiologists, biostatisticians, psychologists, statisticians, and other social

remedying possible endogeneity bias “has not had a big impact on other social science

(noting that epidemiological and statistical models often fail to take into account

simultaneous causality and other sources of randomness generating unobservables in their

econometricians have given greater attention to identification problems than biostatisticians).

nonexperimental research, predictor and outcome variables may covary

standard regression techniques will result in biased and inconsistent

estimators when unobserved factors affecting the response are correlated

the problems of omitted variable bias and reverse causality may be

theoretically distinct, they result in the same source of bias—correlation

between the causal variable and the unobserved factors affecting the

address both forms of this potential bias. Three alternative approaches were

employed to examine the robustness of the previously reported results.

First, a nonrecursive simultaneous-equation model in which a

dependent variable indicating selection into a treatment group (i.e.,

DPNotice) appears as an explanatory variable in a substantive equation

endogeneity bias, but is not of particular concern in these analyses.

206 Simultaneous equation models can be divided into two major types: recursive and

nonrecursive. A nonrecursive model occurs when there are reciprocal relationships (i.e.,

feedback loops) between the outcome variables of two or more equations in the system or at

least some of the disturbances are correlated. PAMELA M. PAXTON ET AL., NONRECURSIVE

MODELS: ENDOGENEITY, RECIPROCAL RELATIONSHIPS, AND FEEDBACK LOOPS 13 (2011);

16–17 (2000) (noting that nonrecursive models have non-zero off-diagonal elements in the

have feedback loops or disturbance covariances for endogenous variables with direct effects

between them.”). Most econometricians, however, refer to models with correlated

note 174, at 659 (explaining that a model is recursive when the matrix of coefficients of the

(2000). For the purposes of these analyses, the simultaneous models are labeled

nonrecursive to maintain consistency with the larger structural equation modeling literature.

Labeling the simultaneous models nonrecursive also underscores the fact that the models

take into account possible endogeneity bias resulting from reciprocal causation.

Bivariate logistic models were also estimated and produced nearly identical results.

Bivariate probit models are generally preferred in the literature because the various extant

multivariate logistic distributions have properties such as restrictions on possible values of

correlation coefficients and asymmetric nonelliptical distributions that make such a direct

been the key tools for many researchers [to] study complicated cause-andeffect

relationships. . . . The regression equations are explicitly meant to

variable and the observational units (i.e., defendants) are allocated to a

specific regime (i.e., death noticed/non-death noticed) depending on the

following equation:

approach less practical, and convergence problems are common. Barry C. Arnold,

317–19 (1999).

STATISTICAL METHODS FOR SOCIAL SCIENTISTS 227 (1977) (“[S]tructural [i.e., multiple]

equations represent the theoretical model hypothesized to underlie the observed data; this is

the causal structure assumed to generate the data.”).

model with a binary outcome is also known as the “multivariate probit model with structural

209 Note that some subscripts have been omitted to simplify the presentation. The

at 4.

explanatory variable can be ignored in formulating the log-likelihood in the bivariate probit

model). Including observed endogenous variables in a system of probit equations yields

variables “in statistical models is a common way of taking unobserved

the covariance between the disturbances (i.e., the covariance between the

omitted variables after the influence of the included factors are accounted

for). Due to the standardized parameterization of the model—i.e., the

variables ξ and δ are normally distributed with mean equal to zero and

influencing the treatment variable (i.e., death penalty notice) and the

outcome variable (i.e., case disposed by trial) manifest themselves in the

likelihoods whose maximization generates consistent parameter estimates. G.S. MADDALA,

LIMITED-DEPENDENT AND QUALITATIVE VARIABLES IN ECONOMETRICS 122–23 (1983).

213 The latent indicators are the “first-order” factors and “may be found to satisfy a factor

analytic model themselves.” KENNETH A. BOLLEN, STRUCTURAL EQUATIONS WITH LATENT

VARIABLES 313 (1989) (“Less widely appreciated is that more general and abstract latent

variables may determine the ‘first-order’ latent variables.”); SKRONDAL & RABE-HESKETH,

represent widely different phenomena such as true variables measured with error,

hypothetical constructs, unobserved heterogeneity, missing data, counterfactuals and latent

34 SCANDINAVIAN J. STAT. 712, 712 (2007) (“[L]atent variables are referred to by different

names in different parts of statistics, examples including ‘random effects’, ‘common factors’,

‘latent classes’, ‘underlying variables’ and ‘frailties’.”).

(“[T]he error term in each equation consists of the sum of continuous and discrete random

variables that are correlated.”).

Second-order factor models have at least three distinct advantages: (1) permit the

testing of whether the hypothesized factor accounts for the relationships between the firstorder

factors (i.e., the residuals); (2) impose a structure on the pattern of the covariance

between the first-order factors; and (3) separate the variance due to specific factors from

equations have been used to deal with endogenous covariates . . . . In such cases the

outcome of an equation appears as a covariate in another equation.”).

In contrast to Equation [1], the model now represents a system of

equations, so the numbered subscripts refer to the different equations (e.g.,

and trial-decision equations), where the main response (i.e., Trial)

and the switching dummy (i.e., DPNotice) are nested (i.e., clustered) within

The relationship between the errors across the two equations can be

observed with the following equations:

where the error in each equation consists of a part that is unique to that

POL. SCI. 444, 450 (1978) (“Stated simply, the correlation between the disturbances of the []

structural equations expresses the extent to which those equations fail to recognize major

causes of their dependent variables that are either the same or correlated.”). These

disturbances represent effects of random influences or omitted covariates that are casespecific

and immediate, whereas the fixed-effects models represent the effects of omitted

175, at 852–56 (explaining that the key advantage of the bivariate probit model is its ability

to explicitly control for unobservable confounding factors); SKRONDAL & RABE-HESKETH,

which has been used in prior research to estimate the causal impact of filing a notice to seek

propensity score models are a viable solution to modeling selection bias in models with

In fact, sensitivity analyses reveal that the estimates from propensity score models were very

220 “We can induce dependence between responses by including factor structures [i.e.,

91.

Substituting [5a] into [4a] and [5b] into [4b] gives the following

equations:

between the two decision processes may be more easily observed in the

(causal) path diagram of the model depicted in Figure 2. The bivariate

probit model takes into account any unobserved causes influencing both

of the death penalty (via the filing of a notice of intent to seek the death

221 Technically, the combination of Equations [6a] and [6b] results in a specific instance

formulation because it can estimate all four of the joint probabilities.

222 The model depicted in Figure 2 does take into account both omitted variables and

potential reverse causality, even though it does not estimate a causal relationship from the

plea-decision variable to the death-noticing variable. Although the statistical literature is

replete with incorrect examples of feedback arrows between two endogenous variables in a

system of simultaneous equations, as well as correlated disturbances, such a formulation has

been shown to be logically inconsistent in the bivariate probit context. The correlated

DISCRETE DATA WITH ECONOMETRIC APPLICATIONS 422, 427 (Charles F. Manski & Daniel

bias resulting from correlated measurement errors). The model is fitted via maximum

210, at 288.

The two equations share identical explanatory variables except for

DPNotice, which only appears in the trial equation. No exclusion

restrictions are required to identify the model—the multi-equation probit

model is identified as long as each equation contains one varying

exists—that is, a variable that induces substantial variation in the

endogenous covariate is independent of unmeasured confounders and has

identification, the [exclusion] restrictions are not necessary for identification.”); Heckman,

stringent” and that “[i]dentification through use of covariance restrictions is also permitted”);

theoretical identification in the recursive bivariate probit context does not require the

availability of any instrumental variables because the linear combination of the two

(exclusion restrictions are only necessary if there is no variation in exogenous regressors,

and this is a rather weak assumption in economic applications).

225 This underlying identifying assumption of the instrumental variable approach is both

shortcomings of traditional instrumental variable estimation and explaining how analysts are

Exogenous

Vars.

# Stat Aggs

Codefs

Def. Race

Def. Sex

Def. Age

Crim. History

HS Grad

Employment

Marital Status

Children

Victims

Vic. Race

Vic. Sex

Vic. Age

Def./Vic. Rel.

DPNotice

Trial

β2

γ1

γ

ξ

λ

1

δ

δ

situations frequently arise in practice where identical explanatory variables

influence selection and a subsequent outcome of interest, and the analysts

may be required to base identification on distribution assumptions about the

in the bivariate probit model may be reasonable under certain weaker

assumptions: (1) the selection equation and the equation of interest

represent closely related decisions or goals; (2) the decisions have the same

causes; and (3) the decisions occur within a short time frame or are close to

well for the current analysis. Prior simulation studies also report that the

bivariate probit model outperforms instrumental variable models in many

applications and is rather robust to nonnormality of error terms, especially

Moreover, analysts have established that identification is less of a concern

when causal effects, rather than structural parameters, are of primary

model directly lends itself to the counterfactual/potential outcomes

mistaken when believing the assumption is empirically testable).

175, at 616 (“The case of identical regressors [across a system of equations] is quite

common . . . .”).

bias in estimation of treatment effects resulting from geographic mismatch).

(“[I]t is well known, from both a theoretical and empirical point of view, that simultaneous

likelihood estimation methods are superior to conventional two-stage instrumental variable

(2011) (“Theory and simulation studies indicate that most aspects of statistical inference are

highly robust to this assumption [of normality for random effects] . . . including estimation

of covariate effects, [and] estimation of the random effects variance . . . .”); Gary Young et

ECON. 214, 222 (2009).

2, 3–5 (2001) (endorsing the use of the potential outcomes/counterfactual framework instead

of structural parameters, particularly in models examining limited dependent variables

(LDV) with dummy endogenous variables and also remarking that identifying assumptions

for structural parameters are largely unnecessary for causal inference in LDV models in light

of the potential outcomes/counterfactual framework); Guido W. Imbens & Joshua D.

ECONOMETRICA 467, 475 (1994) (same).

Nobel Prize-winning econometrician James Heckman explains, the

“Neyman-Fisher-Cox-Rubin model of potential outcomes . . . is also the

The average marginal effect of DPNotice on the likelihood of trial is

the difference between two conditional probabilities: Pr(Trial = 1|DPNotice

effect is the probability that a case results in trial, given that a death penalty

The results from the bivariate probit model support the earlier analyses (see

Table 8). Being noticed for the death penalty decreases the probability of a

case going to trial from .61 to .34 in the DE model. The correlation,

model, being noticed for the death penalty decreases the probability of a

case going to trial from .61 to .36. The correlation between the

effect sizes are somewhat larger than those obtained from the previous

models, but it is important to emphasize that the bivariate probit models do

impact the causal estimates. The proportion of the variance in the residuals

that is attributable to shared omitted variables is equal to the square of the

234 Even if the error terms from the two equations are not correlated in the overall

population (as indicated by significant tests), they are correlated in the selected sample and

supported by the data from a given experiment is always the observed effect, regardless of its

significance”). Nonetheless, the close correspondence between the single-equation results

and the bivariate probit results strongly suggest that any bias in the estimates is minimal.

Moreover, additional sensitivity checks reveal that the parameter estimates were not unduly

influenced by endogeneity bias.

Second, a semi-nonparametric version of the bivariate probit model

(SNP) was analyzed to check the robustness of the previously estimated

in Equation [3] assumes joint normality of residuals, and although

bias in the causal estimates resulting from the violation of that assumption

remains a possibility. The SNP model makes less restrictive assumptions

about the distribution of unobservables, and therefore can handle a broader

approximate the unknown distributions of the residuals by Hermite

polynomial expansions (i.e., the product of a squared polynomial and a

normal density) and use the approximations to derive a pseudo-maximum

The SNP models reveal that the threat of capital punishment reduces

similar to those obtained via the classic bivariate probit model. The

estimates are also somewhat larger than those obtained from the fixedeffects

logit and linear probability models, however the SNP models also do

not account for judicial-circuit-level fixed effects.

Finally, a propensity score-matching model is used to adjust for

model is that bias in estimates of treatment effects is reduced when the

comparison of outcomes is performed using “treated” and “control”

subjects who are as similar as possible along a large number of relevant

typically infeasible when the number of relevant variables is large, so

to account for nonrandom selection into prosecution).