Many of the nation’s most notorious serial killers—including Ted Kaczynski and The Green River Killer—escaped America’s harshest penalty by merely accepting a guilty plea. Even those prosecutors who adamantly support the death penalty, seeking the sentence wherever available, demonstrate a willing-ness to abandon the sentence in exchange for a guilty plea, notwithstanding the magnitude of the offense.

Likewise, prosecutors throughout the United States acknowledge the continued practice of utilizing the death penalty to maintain leverage in plea negotiations. Nonetheless, the vast majority of counties overwhelmingly lack the resources death-penalty trials compel. This triggers constitutional concern in the light of the Constitution’s prohibition on unfulfillable promises.

The United States Constitution bars involuntary confessions. Consequently, interrogations and plea negotiations must be maintained absent false threats to the accused. Accordingly, where threatening a defendant with the death penalty, while nonetheless lacking the resources to procure a death sentence, a prosecutor effectively encourages the plea through an impermissible false threat.

This Article is the first to scrutinize capital plea negotiations and concomitant fiscally burdensome death-penalty trials. The State cannot utilize the potentiality of a death sentence in capital-eligible plea negotiations, where fiscal limitations render the sentence effectively unattainable. This Article concludes constitutional validity is maintained only where prosecutors have the resources to proceed to the requisite capital trial in all actions where the death penalty is purportedly sought. The state effectively leverages plea negotiations with constitutionally-prohibited unfulfillable promises where it lacks the resources necessary to obtain a death sentence in every case in which it purports to seek
such penalty.

Plea bargaining is a cornerstone of the American criminal justice system, but death is different. Dissimilar from customary defense practice, legal ethics mandate capital-defense attorneys counsel defendants to accept any offer to avoid death. Consequently, capital plea negotiations result in the death penalty being contingent on the defendant’s decision to plead, rather than their particular offense. This practice undermines the death penalty and triggers immense constitutional concern.

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