Download Factors Linked to High Error Rates in Capital Cases: Study on Influences and more Study Guides, Projects, Research Law in PDF only on Docsity!
The author(s) shown below used Federal funds provided by the U.S.
Department of Justice and prepared the following final report:
Document Title: Getting to Death: Fairness and Efficiency in the
Processing and Conclusion of Death Penalty
Cases After Furman, Final Technical Report
Author(s): Jeffrey Fagan ; James S. Liebman ; Valerie West
; Andrew Gelman ; Alexander Kiss ; Garth
Davies
Document No.: 203935
Date Received: February 2004
Award Number: 2000-IJ-CX-
This report has not been published by the U.S. Department of Justice.
To provide better customer service, NCJRS has made this Federally-
funded grant final report available electronically in addition to
traditional paper copies.
Opinions or points of view expressed are those
of the author(s) and do not necessarily reflect
the official position or policies of the U.S.
Department of Justice.
GETTING TO DEATH: FAIRNESS AND EFFICIENCY IN THE
FURMAN
PROCESSING AND CONCLUSION OF DEATH PENALTY - CASES AFTER
Final Technical Report Grant 2000-IJ-CX-0035.-. __.
Jeffrey Fagan
James S. Liebman
Valerie West Andrew Gelman Alexander Kiss Garth Davies
Columbia Law School Columbia University 435 West 116th Street
June 1,
This project was supported by Grant No.# NIJ-2000-IJ-CX-0035 awarded by the National Institute
of lustice, Office of Justice Programs, U.S. Department of Justice. Points of view in this document
are hose of the authors and do not necessarily represent the official position or policies of the US.
Department of Justice.
__
TABLE OF CONTEfiTS ~
Acknowledgments........................................ i
Table of Contents........................................ 11
Executive Summary...................................... 111
...
Introduction............................. ,.............. r-
Specific Aims............................................ 2
Error and Inefficiency in the System of CapitaLPunishment........ 3
Capital Punishment After Furman.................... ,. 3
Actual Operation: Death Sentences and Reversals......... 4
Hypotheses....................................... 1 3
Policy Context.................................... 14
~.^ __^ ..
Methods............................................... 1 6. ,. , Design.......................................... 1 6
Variables and Measures............................. 16
Datasources ..................................... 29
Methods of Analysis............................... 3 5
State-Level Effects....................................... 3 8 Combined Stages.................................. 4 1 Single Stages..................................... 4 6 Summary and Discussion............................ 5 2
.__-
__ ~~
Individual-Level Effects.................................. 5 4
__ Study Design..................................... 5 4
Descriptive Statistics............................... 57
Model Estimates............ ........................ 5 9
- ~-Summary and Discussion..... ... .-_.................. 6 3 .
Summary and Discussion.................................. 7 0
Policy Options........ T7--............................... 8 1
- Conclusion............................................. 8 3 .-
~ -~-.^.
Notes and References..................................... 8 5
Appendices
A............................................. 108
B. ..............................................-^ - 111
11
EXECUTIVESUMMARY
There is growing concern that serious, reversible error permeates America’s death penalty system, putting innocent lives at risk, heightening the suffering of victims, leaving killers at large, wasting tax dollars, and failing citizens, the courts and the justice system. Questions of “how fast (or slow)?” and “how fair?” persistently confront the administration of the death penalty. Previous studies showed how often mistakes occur and how serious it is: 68% of all death veaicts imposed and fully reviewed during the 1973-1995 study period were reversed by courts due to serious errors (Liebman, Fagan and West, 2000). These appeals took nearly a decade on average to complete judicial examination. Moreover, available data on the reasons for reversal for state post-conviction and federal habeas stages of review show that more than three in four (76% ) were4he result of incompetent defense lawyers, suppression of exculpatory evidence or other professional misconduct by police and prosecutors, invalid jury instructions leading to misinformed jurors, or biased judges and jurors. Half of those reverials tainted the verdict finding the defendant guilty of an aggravated capital murder as well as the verdict imposing the death penalty. 82% of the cases sent back for retriag-at the second appeal phase ended in sentences less than death,
including 9% that ended in not guilty verdicts (Liebman, Fagan and West, 2000).
-_ -
This study addresses two questions: First, we ask why does the death penalty system
make so many mistakes? Second, we ask how might these mistakes be prevented, if at all?
We hypothesized that the more a jurisdiction uses the death penalty relative to homicide rates, sentences will be found legally invalid and overturned.
~
METHODS
To address these questions, we computed error rates within states from 1973, when
- caiLal punishment was reinstated in the U.S. following the Supreme Court decision in
Furman v. Georgia (408 U.S. 238 (1972)), through 1995. We framed this period so that cases
originatinmfore 1995 would have sufficient time to complete their cycle of judicial examination. We-reviewed every death sentence imposed during the study period under a valid post-Furman capithtatute across three stages of appeal: direct appeal in state court, state post-conviction review in the state’s highest court, and federal habeas corpus appeals. For each state and sentence year, we computed reversal rates aLeach stage, and a composite error rate across the three stages -.within years and again over time within states. (^) _ _
__ Potential explanatory factowwere identified^ in^ several domains, including the supply of-cases for death sentencing, characteristics of the criminaustice system, social and demographic characteristics of the states, and the social and political contexts in which death sentences are produced and reviewed. For federal habeas cases, we recorded extensive information on characteristics of the offender, victim, murder, state and fedral review procedures, federal lawyers and judges, and claims for relief.
__
We employed mulitivariate statistical methods to identify factors that predict where and when death verdicts are mare likely to be reversed based on serious error. To validate the analyses and ensure that results are driven by relationships in the data instead of statistical methods, we began with a preferred model, then used alternate statistical procedures with contrasting assumptions about the arrangement of capital reversals and
Pressures Associated with Overuse of the Death Penalty
Four social and structural conditions are strongly associated with high rates of serious capital error. Their common capacity to pressure officials to use the death penalty aggressively in response to fears about crime and regardless of how weak any particular case for a death verdict is, may explain their relationship to high capital error rates.
I. The closer the homiide risk to whites in a state comes to equaling or surpassing the
homicide risk to blacks, the higher the error rate. Controlling for other soclal and legal factors, reversal rates are twice as high where homicides are most heavily concentrated on white victims compared to blacks.
2. The higher the proportion-OfAfrican-Americans in a state-and in one analysis, the more werfare recipients in a state-the higher the rate of serious capital error. Because this effect has to do with traits of the papulation at large, not those of particular trial participants, it appears to be an indicator of crime fears driven by racial and economic conditions. 3. The lower the rate at which states apprehend, convict and imprison serious criminals, the
higher their capital error rates. Predicted capital error rates for states with only 1 prisoner
per 100 FBI Index Crimes are about 75%, holding other factors constant. Error rates drop to
36% for states with 4 prisoners per 100 crimes, and to 13% for those with the highest rate
of prisoners to crimes. Evidently, officials who do a poor job fighting crime also conduct
poor capital investigations and trials. Well-founded doubts about a state’s ability to catch
criminals may lead officials to extend the death penalty to a wider array of weaker cases-at
substantial cost in error and delay.
4. The m o r H t e n and directly state trial judges are subject to popular election, and the more partisan those elections are, the higher the state’s rate of serious capital error.
Other Systemic Factors Affecting Error Rates
___-
1. Heavy use of the death penalty causes delay, increases cost, and keeps the system from
doing its job. High numbers of death verdicts waiting to be reviewed seem to paralyze appeals. Holding other factors constant, the process of moving capital verdicts from trial to a final result seems to Come to a halt in states with more than 20~erdictsunder review at one time. (^) - ~~ -
_ _ 2. Poor quality trial proceedings-&crease the risk of serious, reversible error. Poorly
funded courts, high capital and non-capital caseloads, and unreliable procedures for finding the facts all increase the chance that serious error will be found. In contrast, high quality,
well-funded private lawyers from out of state significantly increase a defendant’s chance of
showing a federal court that his death verdict is seriously flawed and has to be retried.
3. Chronic capital error rates havepersisted over time. Overall reversal kates were high and fairly steady throughout the second half of the 23-year study period, averaging 60%. When
all significant factors are consic€mcl;state high courts on direct appeal-where 79% of the
2349 reversals occurred-found significantly more reversible error in recent death verdicts Shan in verdicts imposed earlier in the study period. Other things equal, direct appeal reversal
rates were increasing 9% a year during the study period.
4. State and federal appealsjudges cannot be relied upsn to catch all serious trial errors
in capital cases. Like trial judges, appeals judges are susceptible to political pressure and make mistakes. And the rules appeals judges use to decidewhether errors are serious enough to require death verdicts to be reversed are so strict that egregious errors sometimes slip through. Case studies show that in some cases, judges recognize that proceedings were marred by error but affirmed anyway because of stringent rules limiting reversals.’
DISCUSSION
Over-decades and across dozens of states, large numbers and proportions of capital
verdicts have been reversed because of serious error. The s w t a l system is adversely affected
by so much error, and as a result risks executing the innocent. States that impose death sentences at a lower rate per homicide produce fewer decisions that are flawed by serious error and are reversed. The fewer death verdicts a state imposes, the less overburdened its capital appeal system is, and the more likely it^ is^ to carry out the verdicts^ it^ imposes. The more often states s u c c w b to pressures to inflict capital sentences in marginal cases, the higher is the risk of error and delay, the lower is the chance verdicts will be carried out, and
the greater is the temptation to approve flawed verdicts on appeal. Among the sources of
pressure to overuse the death penalty are political pressures on elected judges, well-founded doubts about the state’s ability to convict serious criminals, and the race of the state’s residents and homicide victims.
POLICY OPTIONS
High._ _ _rates of capital error are costly. Many of the factors that produce error are not
easily addressed through policy (e.g., the complex interaction of a state’s racial make-up, its welfare burden, the distribution of homicides among white and black victims, and the efficacy of its law enforcement policies). Indirect remedies may be unreliable, and may be perceivedxrinfringing on the prerogatives and discretion of officials who in the past have broadened their authority to extend the death penalty to cases that are not highly aggravated.
As a result, some states may conclude that the only answer to chronic capital error is to limit
its to the very small number of prospective offenses where there is something approaching a social consensus that only the death penalty will do. Other states may decide that error can be reduced only if they stop using_.the death penalty at all. (^) _ _ ~
_ _ For other states, targeted refoFms based upon careful study of local conditions might
be a preferable means of achieving the central goal of reducingmor in death sentences by
limiting the death penalty to “the worst of the worst” cases-that is, to defendants who can be shown without doubt to have committed an egregiously aggravated murder in the absence of extenuating factors. Ten reforms that might help accomplish this goal are:
i. See case studies in James S. Liebman et al., A Broken System, Part 11: Why There is
90 Much Capital Error and What Can Be Done About It,
littp://law.columbia.edu/brokensystem2, at 25-36. -~
INTRODUCTION
In the 1960s and 1970s, Americans debated whether their criminal justice system could administer thedeath penalty fairly, leading half of them to oppose it. In the succeeding decade, federal courts implemented reforms to make the penalty fair, and three-quarters of the public came to support it. Recently, the Supreme Court has deregulated the penalty, and new legislation keeps federal courts from enforcing due process protections that remain. Still, popularmpport for the penalty is relatively high, although it has recently dropped some. Behind these trends lie three assumptions: (1) The 1970s reforms have enabled American criminal justice institutions to administer the death penalty fairly and functionally; (2) juries can tell who deserves to die, and state judges can cure rare mistakes; (3) multiple layers of justice system review may be unnecessary and at cross-purposes with the goals of the criminal justice system.
Recent empirical woik at Columbia Law School on appellate review of capital
sentences challenges these assumptions. We have analyzed over 5,000 state and federal court decisions reviewing recent death sentences. From the early 1970s through 1995, state
courts found 41 of every 100 death verdicts too unreliable to be carried out under law; at
least six of the remaining 59 (10%) met the same fate on later state post-conviction-review, and 21 of the remaining 53 (40%) met the same fate on later review in federal court. Finally, about 5 of the remaining 32 capital prisoners died of other causes while their sentences were under review. Our findings indicate that although frequent reversals impose costs and delays, they also are necessary to avoid serious harm, including the execution of individuals for whom the law does not authorize death as a permissible penalty.
In this study, we report the results of a comprehensive of analysis capital cases in the
U.S. from 1973-95. The analyses were conducted on a unique database compiled by a multidisciplinary team of students and faculty from both law and social science disciplines
at Columbia University. We focused on the “supply” of death penalty-cases post-Furman,
the outcomes of state direct appeal, state post-conviction and federal habeas corpus review procedures, and the pathways to execution or reversal in each of these cases. We identify
factors that shape variations2om state to state in capital reversal rates, and also that shape
variation in the outcomes of federal habeas review.
The study is themest comprehensive study to date on post-trial review of capital
--. criminal cases. It covers men and women sentenced to die in a1134 states that were active
capital sentencers between 1973 and 1995, which includes the vast majority of states that now have the death penalty and all of the states (e.g., Arizona, California, Florida, Georgia,- - Illinois, Pennsylvania, Texas, Virginia) thathave large death row populations and use the death penalty as a regular part of their criminal justice systems.
Tn-order to be as comprehensive and reliable as possible, the study improves in
several ways on the important BJS Gapital Punishment series.’ ftiedata allow us to examine
separately reversals by state versus federal courts; the stu& includes the types of and reasons
for reversals; it includes temporal dimensions of the three phases of the appellate review
process that permits estimates of a number of potential conditions related to error; it
examines all reversals, not just those that physically remove prisoners from death row for dong enough to register in a once-yearly census of death row inmates; it examines all death
--
sentences and reversals, including ones that occur so closely together that the prisoner never reached the state’s death row; and, it recognizes and takes accurate account of numerous
reasons why a single individual on death row (the unit of analysis in the BJS data) may
represent multiple death verdicts, each of which is analyzed in this study to generate a full picture of the reliability and legality of judgments of death.
Finally, the research is one of the most comprehensive American studies of the behavior of theappellate courts of any sort, whether criminal or civil. It is broad in the span of years (23) studied, the breadth of jurisdictions included (34 states), the capacity to compare two phases of court review - state court review and federal court review-- and the range of case-specific, court-specific and political factors considered. Similarly, by contrast to the various studies of the behaviors and decisions of trial-level actors in capital cases, this study is not focused on the effect of a particular case-specific factor (such as race, age, the
jury-selection technique, strength of the evidence, the type -of legal representation, a
particular jury instruction, or the like) but instead looks simultaneously at a wide variety of
such factors and, in addition, at a broad set of time-specific, court-specific, criminal-justice- system-specific, and political factors.
-.
- ~-
- SPECIFIC AIMS The project pursued the following specific aims: -.^ - Identifv differences in rates of death penalty reversals and habeas outcomes by states and years, and identifL structural and case-level sources of variation. (^) We catalogued death sentences and outcomes of state direct appeal, state post-conviction and federal habeas corpus appeals by state and by year. (^) -
Describe extent and magnitude of changes over time between andwithin states. The
supply of death penalty cases has grown over time, both within and across states, but at an uneven pace. States such as Virginia, Texas and Alabama lead the nation in executions, and their death sentence and execution rates haJregrown even as homicide victimizations have fallen. Other states have long had constitutionally valid death penalty statutes, but have used these statutes more sparingly despite recurring homicidecycles;-- Moreover, the error rates found by the same federal circuit judges among capital verdicts from different stateswithin the circuit diverge dramatically. We chart and analyze disparities and convergences in the error rates detected on state direct appeal and state post-conviction review within the state courts-- and at the federal habeas corpus reviewstage.
__
_ _
4 i k n t i f Lfactors that explain variation between states within and over time. The supplyof death penalty cases- _has grown unevenly acrossstates, as have the numbers of executions. Moreover, the growth rates have accelerated in some places and
remained relatively stable in others;--We examme a range of explanatory factors,
- using a hierarchical framework that incorporates influences of state social structure, court structure and composition, case characteristics, and f i e political economy of \ criminal justice administration.
procedural requirements unleashed a barrage of state post-conviction and federal habeas corpus litigation attacking the constitutionality of particular capital trials. As a result, the Court - and, more recently, Congress via the Antiterrorism and Effective Death Penalty and state legislatures- have attempted to contain post-sentence review procedures while still enforcing the Court's constitutional rulings.
- (^) However, there now-1s strong evidence that our capital system does not operate in a reliable of effk<ent manner. High rates and amounts of capital error discovered at both state and federal review are a prime contributor to the p r ~ b l e m. ~This warrants a careful study of the determinants of error.
B. Actual Operation ~-.
Figure -fa shows the supply of execution-eligible cases through the number of admissions to death row each year from 1977 to 2001, and the percent executed from that base. Since 1982, the number of new death row admissions has rarely deviated from the average by no more than about 15% in any year.5 Figure 1b shows the steadily increasing death row poprrtatron over the past 30 years;-and the number of nonconsensual executions (i.e., ones preceded by full judicial review) during the same period. Executions were relatively rare (hovering in the mid-teens) and stable between 1984 (when post- Furman ~ executions began in eamest)-and 1991.
After 1991, there was a gradual increase into the mid- 1990s, and a steeper increase through 1999, after which the number of executions decreased significantly. These two
are executed. Second, the number of death row inmates executed rises as the death row population rises, but the percent executed has remained uniformly low LESS than 3 percent and averaging about 1.5 percent since Furman.
figures show two interesting trends. First, many more people reach death row each year than ._
__-
Thus, both figures show the sharp and steady growth in the n u m 6 of prisoners on death row. On the other hand, during the entire post-Furman period, there was a remarkably small proportion of death r w inmates who have been executed each year: an average of only _ _ - 1.36 percent of the prisoners on death row were executed each year between 1984 and 2001, with the proportion executed falling between .5% and 2% durizg-the entire period. The
recent increase in the number of executions thus may nut reflect a greater ability to carry out
executions. Instead, it seems to reflect a stablg willingness or ability over decades to execute- only a tiny proportion (no m0re than 1 out of 50) of a consequently burgeoning death row. Figures la and l b plot the growth of death row and compares the number of executions and p r o p o m n of death row executed each year.
_.-
II
4 0 0 0
3500
3 0 0 0
1 5 0 0
1000
500
0
I ‘Figure l a. P r s o n s o n D e a t h R o w and N u m b e r ofeExecutions, 1 9 7 3 - 2 0 0 1
Y e a r
1 0 0
7 5
u) E 0 (^50 3) 0 (^0) x W
2 5 ~ I
0
Source: Bureau of Justice Statistics, Capital Punishment 2000 (NCJ 190598); Death Row USA; NAACP Legal Defense Fund, Direct Appeal Database (2002).
5
Why do inmates pile up on death row without being executed? Figure 2 shows the systems for review of capital verdicts. The answer is that upon arriving on death row, inmates do not immediately queue up to be executed. Iiiiitead, they wait while their cases are reviewed in state appellate and post-conviction proceedings. And the vast majority of their capital judgments are overturned by state and federal courts.
Tables 1-4 show the results of over 4,000 state direct appeal cases and approximately 600 capital federal habeas corpus decisions in that same 23-year period. Table 1 _s_howsthat
state direct appeal courts reversed 40% of the capital judgments that survive state direct
appeal and state post-conviction and go-on to federal habeas review.6 Tables 2-4 reveal the fate of the state direct (trial court) appeals and state post-conviction review and go on to
federal court habeas review.' Analyzing the cases by state of origin, year, and federal court
rendering the final decision, those tables reveal that 40%Xf capital judgments reviewed in
federal proceedings during the study period were overturned. In some states, reversal rates
were much higher-for example, 76% in Mississippi and 65% in Georgia.
_ _
When state post-conviction reversals are also considered, state and federal courts
overturned about 2 of every 3 death sentences they reviewed. In Georgia the courts
overturned about 3 of every4 death sentences; in Mississippi, over 9 out of every 10.' Rather
than queuing up to be executed, that is, most condemned inmates queue up ta be released from death row by (for the most part) state courts and (to a lesser extent) federal courts as a result of serious, reversible legal error occurring at their capital trials.' rates are much lower.)
.
I I I
I
/ I I
A
~
EIGORE 2. THE C A P I T , L CRIMINAL PROCESS: TRIAL
THROUGH STATE POST-CONVICTION AND FEDERAL HABEAS
( 3 ) *- PETITION FOR U.S. SUPREME COURT R E V I E W
STATE TRIALAND ,
DIRECT REVIEW I
i I
1 I 1 i
'. , / /
II
1 STATEIPOST-
CONVICTION I
STATE TRIAL LEVEL
STATE POST- CONVICTION APPEAL
I FEDERAL HABEAS CORPUS
i ! I i III
I
,
Table 2. Capital Habeas Relief Granted in Federal Courts By Year of Final Habeas Decision, 1973-1995"
Year
Total
Relief Granted (%)
-~
._
_-
Relief Granted (N) No Yes
Total #
-.
Source: Liebman et al., 2002.
- For 30 verdicts, sentencing year was not reported in the decision.
Table 3. Capital Habeas Relief by Court of Decision, 1973-1995"
'IRCUIT & SUPREME COURTS
Sixth Circuit^ ..^ - Ninth Circuit - Eleventh Circuit Tenth Circuit
U.S. Supreme Court
Seventh Circuit Eighth Circuit Third Circuit Fifth Circuit Fourth Circuit --
IISTRICT COURTS Middle District of Alabama Arizona Distric333xun-t Delaware District Court Middle District of Florida Northern District of FloriTa Northern District of Georgia Northern District of Illinois Maryland District Court Northern District of Mississippi Western District of Mississippi
Eastern District of Texas
Northern District of Texas Southern District of Texas - Texas Appellate Court Southern District of Georgia Northern District of Alabama
'OTAL .- ._
Relief Granted %
9
1 uo 0 50 100 100 0 100 1 100 100 100 64 0 100 100 38
Relief Granted (N)
No Yes
~
Total.
1 2 - 1 2 1 1 1 1 1 1 3 1 1 1
*All Final Dispositions of first petitions for which there is information on $he court of decision 1973-1995. 30 cases are omitted because of missing information on sentencing year. -
Source: Liebman et al. (2002)
