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Analysis: In Loughner case, a cost-benefit calculation to the death penalty

Sources says Jared Lee Loughner, the man accused of killing six people and wounding Rep. Gabrielle Giffords in 2011, is set to plead guilty Tuesday. NBC News' Diana Alvear reports.


Updated at 4 p.m. ET Aug. 7: The death penalty is often regarded as a relic of a bygone era, invented in a world before prisons, when branding, maiming and flogging were the lesser options. Its role is often debated in a modern world in which incarceration rather than physical pain is the norm.

Wes OliverWes Oliver is a law professor and director of the Criminal Justice Program at the Duquesne University School of Law.

That Jared Lee Loughner, who shot then-Rep. Gabrielle Giffords, D-Ariz., and many others in Tucson early last year, pleaded guilty Tuesday shows why the death penalty may be allowed to linger on the books.

Loughner chose a certain life sentence over the risk of a death sentence. That threat — the potential of facing death — avoided a costly and highly publicized trial, saving the victims and their families from a painful ordeal and the judicial system from expending extraordinary resources.

Without the threat of the death penalty, there likely wouldn't have been a plea deal — no reasonable prosecutor would be willing to risk letting Loughner see the light of day outside a jail cell. And no reasonable defense lawyer would recommend that his client accept the maximum sentence permitted by law. 

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The child sexual abuse case against former Penn State assistant football coach Jerry Sandusky offers an excellent comparison. With the prosecution unable to offer anything more — or less — than a life sentence, the defense could do nothing other than recommend that Sandusky roll the dice, because there was no downside to letting the jury decide. 

Loughner risked a very different outcome if he didn't reach an agreement that eliminated his risk of execution.

From the prosecution's perspective, a life sentence achieves many of the goals of a death sentence. An effective life sentence — whether it is phrased as a life sentence, several life sentences or a sentence of several hundred years —is no lenient alternative to death. 

And such a sentence protects society. Our penal institutions are capable of detaining men on death row for many years, meaning those prisons can hold similar men into their geriatric years. 

There are also financial advantages to life sentences. Counterintuitively, life sentences are typically cheaper than death sentences because of the greater complexity of capital cases. 

Opponents of the death penalty contend that it legitimizes violence, but it offers substantial incentives for defendants to reach agreements that avoid extraordinarily expensive and psychologically taxing trials. The criminal justice system's strong interest in such alternatives may mean the death penalty lingers long after there's a consensus that there's a better way to punish violent criminals.

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