Death Penalty in America, Legal Studies 485, Spring 2003

“Capital Attrition: Error Rates in Capital Cases, 1973-1995”
By James S. Liebman, Jeffrey Fagan, Valerie West, and Jonathan Lloyd

78 Tex. L. Rev. 1839 (June 2000) [footnotes omitted]

I. Introduction

Americans seem to be of two minds about the death penalty. In the last several years, the overall number of executions has risen steeply, reaching a fifty year high this year. Although two-thirds of the public support the penalty, this figure represents a sharp decline from the four-fifths of the population that endorsed the death penalty only six years ago, leaving support for capital punishment at a twenty year low. When life without parole is offered as an alternative, support for the penalty drops even more - often below a majority. Grants of executive clemency reached a twenty year high in 1999.

In 1999 and 2000, governors, attorneys general and legislators in Alabama, Arizona, Florida, and Tennessee fought high-profile campaigns to increase the speed and number of executions. In the same period, however:

• The Republican Governor of Illinois, with support from a majority of the electorate, declared a moratorium on executions in that state.
• The Nebraska Legislature attempted to enact a similar moratorium. Although the Governor vetoed the legislation, the legislature appropriated money for a comprehensive study of the even-handedness of the state's exercise of capital punishment.
• Similar studies have been ordered in Illinois by the Chief Justice, task forces of both houses of the state legislature, and the governor. Indiana, Maryland, and the Attorney General of the United States have followed suit.
• Serious campaigns to abolish the death penalty are under way in New Hampshire and (with the support of the governor and a popular former Republican senator) in Oregon.
• The Florida Supreme Court and Mississippi Legislature recently acted to improve the quality of counsel in capital cases, and bills with bipartisan sponsorship aiming to do the same and to improve capital prisoners' access to DNA evidence have been introduced in both houses of the United States Congress.

Observers in the Wall Street Journal, New York Times Magazine, Salon, and on ABC This Week see "a tectonic shift in the politics of the death penalty."

In April 2000 alone, George Will and Reverend Pat Robertson - both strong death penalty supporters - expressed doubts about the manner  in which government officials carry out the penalty in the United States, and Robertson subsequently advocated a moratorium on Meet the Press. In response, Reverend Jerry Falwell called for continued - even swifter - execution of death sentences.

Fueling these competing initiatives are two beliefs about the death penalty: One is that death sentences move too slowly from imposition to execution, undermining deterrence and retribution, subjecting our criminal laws and courts to ridicule, and increasing the agony of victims. The other is that death sentences are fraught with error, causing justice too often to miscarry, and subjecting innocent and other undeserving defendants - mainly, racial minorities and the poor - to execution.

Some observers attribute these seemingly conflicting events and opinions to "America's own schizophrenia.... We believe in the death penalty, but shrink from it as applied." These views may not conflict, however, and Americans who hold both may not be irrational. It may be that capital sentences spend too much time under review and that they are fraught with disturbing amounts of error. Indeed, it may be that capital sentences spend so much time under judicial review precisely because they are persistently and systematically fraught with alarming amounts of error, and that the expanding production  of death sentences may compound the production of error. We are led to this conclusion by a study of all 4,578 capital sentences that were finally reviewed by state direct appeal courts and all 599 capital sentences that were finally reviewed by federal habeas corpus courts between 1973 and 1995.  

II. Summary of Central Findings

In Furman v. Georgia in 1972, the Supreme Court reversed all existing capital statutes and death sentences. The modern death-sentencing era began the next year with the implementation of new capital statutes designed to satisfy Furman. In order to collect information about capital sentences imposed and reviewed after 1973 (no central repository exists), we conducted a painstaking search, beginning in 1995, of all published state and federal judicial opinions in the United States conducting direct and habeas review of capital judgments, and many of the available opinions conducting state post-conviction review of those judgments. We then (1) checked and catalogued all cases the opinions revealed, (2) collected hundreds of items of information about each case from the published decisions and the NAACP Legal Defense Fund's quarterly death row census, (3) tabulated the results, and (4) (still in progress) conducted multivariate statistical analyses to identify factors that may contribute to those results.

Six years in the making, our central findings thus far are these:

• Between 1973 and 1995, approximately 5,760 death sentences were imposed in the United States. Only 313 (5.4%; one in 19) of those resulted in an execution during the period.
• Of the 5,760 death sentences imposed in the study period, 4,578 (79%) were finally reviewed on "direct appeal" by a state high court. Of those, 1,885 (41%) were thrown out on the basis of "serious error" (error that substantially undermines the reliability of the outcome).
• Most of the remainder of the death sentences were then inspected by state post- conviction courts. Although incomplete, our data (reported in A Broken System)  reveal that state post-conviction review is an important source of review in some states, including Florida, Georgia, Indiana, Maryland, Mississippi, and North Carolina. In Maryland, for example, at least 52% of capital judgments reviewed in state post-conviction proceedings during the study period were overturned due to serious error; the same was true for at least 25% of the capital judgments that were similarly reviewed in Indiana, and at least 20% of those reviewed in Mississippi.
• Of the death sentences that survived state direct and post-conviction review, 599 were finally reviewed on a first habeas corpus petition during the 23-year study period. Of those 599, 237 (40%) were overturned due to serious error.
• The "overall success rate" of capital judgments undergoing judicial inspection, and its converse, the "overall error-rate," are crucial factors in assessing the efficiency of our capital punishment system. The "overall success rate" is the proportion of capital judgments that underwent, and passed, the three-stage judicial inspection process during the study period. The "overall error rate" is the frequency with which capital judgments that underwent full inspection were overturned at one of the three stages due to serious error.  Nationally, over the entire 1973-1995 period, the overall error-rate in our capital punishment system was 68%.
• Because "serious error" is error that substantially undermines the reliability of the guilt finding or death sentence imposed at trial, each instance of that error warrants public concern. The most common errors found at the state post-conviction stage (where our data are most complete) are (1) egregiously incompetent defense lawyering (accounting for 37% of the state post-conviction reversals), and (2) prosecutorial suppression of evidence that the defendant is innocent or does not deserve the death penalty (accounting for another 16% - or 19%, when all forms of law enforcement misconduct are considered). These two violations count as "serious," and thus warrant reversal, only when there is a "reasonable probability" that, but for the responsible lawyer's miscues, the outcome of the trial would have been different.
• The result of very high rates of serious, reversible error among capital convictions and sentences, and very low rates of capital reconviction and resentencing, is the severe attrition of capital judgments. Figure 1 illustrates the sources of attrition, and the eventual disposition of cases where death sentences were reversed.
  • For every 100 death sentences imposed and reviewed during the study period, 41 were turned back at the state direct appeal phase because of serious error. Of the 59 that got through that phase to the second, state post-conviction stage, at least 10% - six more of the original 100 - were turned back due to serious flaws. And, of the 53 that got through that stage to the third, federal habeas checkpoint, 40% - an additional 21 of the original 100 - were turned back because of serious error. Overall, at least 68 of the original 100 were thrown out because of serious flaws, compared to only 32 (or less) that were found to have passed muster - after an average of 9-10 years had passed.
  • And for each such 68 individuals whose death sentences were overturned for serious error, 82% (56) were found on retrial not to have deserved the death penalty, including 7% (5) who were cleared of the capital offense.
• The seriousness of these errors is also revealed by what happens on retrial when the errors are supposed to be cured. In our state post-conviction sub-study where the post-reversal outcome is known, over four-fifths (56 out of 68) of the capital judgments that were reversed were replaced on retrial with a sentence less than death, or no sentence at all. In the latter regard, fully 7% of the reversals for serious error resulted in a  determination on retrial that the defendant was not guilty of the offense for which he previously was sentenced to die.
• High error rates pervade American capital-sentencing jurisdictions, and are  geographically dispersed. Among the twenty-six death-sentencing jurisdictions in which at least one case has been reviewed in both the state and federal courts and in which information about all three judicial inspection stages is available:
  • 24 (92%) have overall error rates of 52% or higher;
  • 22 (85%) have overall errors rates of 60% or higher;
  • 15 (61%) have overall error rates of 70% or higher.
  • Among other states, Georgia, Alabama, Mississippi, Indiana, Oklahoma, Wyoming, Montana, Arizona, and California have overall error rates of 75% or higher.
• It is sometimes suggested that Illinois, whose governor declared a moratorium on executions in January 2000 because of the spate of death row exonerations there, generates less reliable death sentences than other states. Our data do not support this hypothesis: The overall rate of error found to infect Illinois capital sentences (66%) is slightly lower than the rate in capital-sentencing states as a whole (68%).
• High error rates have persisted for decades. More than 50% of all cases reviewed were found seriously flawed in 20 of the 23 study years, including in 17 of the last 19 years. In half of the years studied, the error rate was over 60%. Although error rates detected on state direct appeal and federal habeas corpus dropped modestly in the early 1990s, they went back up in 1995. The amount of error detected on state post-conviction has risen sharply throughout the 1990s.
• The 68% rate of capital error found by the three stage inspection process is much higher than the <15% rate of error those same three inspections evidently discover in noncapital criminal cases.
• Appointed federal judges are sometimes thought to be more likely to overturn capital sentences than elected state judges. In fact, state judges are the first and most important line of defense against erroneous death sentences. Elected state judges found serious error in and reversed 90% (2,133 of 2,370) of the capital sentences that were overturned during the study period.
• Under current state and federal law, capital prisoners have a legal right to one round of direct appellate, state post-conviction, and federal habeas corpus review. The high rates of error found at each stage, and at the last stage, and the persistence of high error rates over time and across the nation, confirm the need for multiple judicial inspections. Without compensating changes at the front-end of the process, the contrary policy of cutting back on judicial inspection would seem to make no more sense than responding to the impending insolvency of the Social Security System by forbidding it to be audited.
• Finding this much error takes time. Calculating the amount of time using information in published decisions is difficult. Only a small percentage of direct appeals decisions report the sentence date. By the end of the habeas stage, however, a much larger proportion of sentencing dates is reported in some decision in the case. It accordingly is possible to get an accurate sense of timing for the 599 cases that were finally reviewed on habeas corpus. Among those cases:
  • It took an average of 7.6 years after the defendant was sentenced to die to complete federal habeas corpus consideration in the 40% of habeas cases in which reversible error was found.
  • In the cases in which no error was detected at the third inspection stage and an  execution occurred, the average time between sentence and execution was nine years.
• As Figure 2 reveals, high rates of error frustrate the goals of the death penalty system. Figure 2 compares the overall rates of error detected during the state direct appeal and federal inspection process in the 28 states with at least one capital judgment that has completed that process, to the percentage of death sentences imposed by each state that it has carried out by execution. In general, where the overall error rate reaches 55% or above (as is true for the vast majority of the states), the percentage of death sentences carried out drops below 7%.  Figure 2 illustrates another finding of interest: The pattern of capital outcomes for the State of Virginia is clearly an outlier - the State's high execution rate is nearly double that of the next nearest state and five times the national average, and its low rate of capital reversals is nearly half that of the next nearest state and less than one-fourth the national average. A sharp discrepancy between Virginia and other capital-sentencing jurisdictions characterizes most of our analyses. That discrepancy presents an important question for further study: Are Virginia capital judgments in fact half as prone to serious error as the next lowest state and four times less than the national average? Or, on the other hand, are its courts more tolerant of serious error? Or, have Virginia's legislature and courts censored opportunities to inspect verdicts and  detect error by procedurally constraining the definition of error and the time within which errors can be identified? We will address this issue below and in a subsequent report.

The rising number of executions nationally does not render these patterns obsolete. Instead of indicating improvement in the quality of death sentences under review, the rising number of executions may simply reflect how many more sentences have piled up awaiting review. If the error-induced pile-up of cases on death row is the cause of rising executions, their rise provides no proof that a cure has been found for disturbingly high and persistent error rates. The rising execution rate and the persistent error rate increase the likelihood of an increase in the incidence of wrongful executions. To see why this is true, consider a factory that produced 100 toasters in a year, only 32 of which worked. The factory's production problem would not be deemed fixed if the company simply raised its production run to 200 the next year in order to double the number of working toasters to 66. Thus, the real question isn't the number of death sentences carried out each year, but the proportion.

Figure 3 below shows that in contrast to the annual number of executions (the middle line in the chart), the proportion of death row inmates executed each year (the bottom line in the chart) has remained remarkably stable - and extremely low. Since post-Furman executions began in earnest in 1984, the nation has executed only an average of about 1.3% of its death row inmates each year; in no year has it carried out more than 2.6% - or one in thirty-nine - of death sentences exposed to full review.

Figure 3 suggests that the rising number of executions (the middle line) is not caused by any improvement in the quality of capital judgments, but instead by the inexorable pile-up of people on death row (the top line in the chart) as judges struggle to exercise a degree of quality control over decade upon decade of error-prone capital judgments.

III. Confirmation from a Parallel Study

Results from a parallel study by the U.S. Department of Justice suggest that our 32% figure for valid death sentences actually overstates the chance of execution. The 1998 Justice Department study includes a report showing the outcome of the 263 death sentences imposed in 1989. A final disposition of only 103 of the 263 death sentences had been reached nine years later. Of those 103, 78 (76%) had been overturned by a state or federal court. Only thirteen death sentences had been carried out. So, for every one member of the death row class of 1989 whose case was finally reviewed and who was executed as of 1998, six members of the class had their cases overturned in the courts. Because of the intensive review needed to catch so much error, 160 (61%) of the 263 death sentences imposed in 1989 were still under scrutiny nine years later.

The approximately 3500 people on death row today have been waiting an average of 7.4 years for a final declaration that their capital verdict is error-free - or, far more probably, that it is the product of serious error. Of the 6700 people sentenced to die between 1973 and 1999, only 598 - less than one in eleven - were executed. About three times as many had their capital judgments overturned or gained clemency.

IV. Implications of Central Findings

To help appreciate these findings, consider a scenario that might unfold any of the nearly 300 times a year that a death sentence is imposed in the United States. Suppose the  defendant, or a relative of the victim, asks a lawyer or the judge, "What now?" Based on almost a quarter century of experience in thousands of cases in 28 death-sentencing states in the United States between 1973 and 1995, a responsible answer would be:  "The capital conviction or sentence will probably be overturned due to serious error. It'll take about nine years to find out, given how many other capital cases being reviewed for likely error are lined up ahead of this one. If the judgment is overturned, a lesser conviction or sentence will probably be imposed."

As any person hearing this statement would likely conclude as a matter of common sense, these reversals due to serious error, and the time it takes to expose them, are costly. Capital trials and sentences cost more than noncapital ones. Each time they have to be done over - as happens 68% of the time - some or all of that difference is doubled. The error-detection system all this capital error requires is itself a huge expense - evidently millions of dollars per case.

When retrial demonstrates that nearly four-fifths of the capital judgments in which  serious error is found are more appropriately handled as non-capital cases (and in a sizeable number of instances, as non-murder or even non-criminal cases), it is hard to escape the conclusion that most of the resources the capital system currently consumes are not buying the public, or victims, the valid death sentences for egregious offenses that a majority support. Rather, those resources are being wasted on the trial and review of cases that for the most part are not capital and are seriously flawed.

Public faith in the courts and the criminal justice system is another casualty of high capital error rates. When the vast majority of capital sentencing jurisdictions carry out fewer than 6% of the death sentences they impose, and when the nation as a whole never executes more than 3% of its death population in a year, the retributive and deterrent credibility of the death penalty is low.

When condemned inmates turn out to be innocent, the error is different in its consequences, but not evidently different in its causes, from the other serious error discussed here. There is no accounting for this cost: to the wrongly convicted; to the family of the victim, whose search for justice and closure has been in vain; to later victims whose lives are threatened - and even taken - because the real killers remain at large; and to the wrongly executed, should justice miscarry at trial, and should reviewing judges, harried by the amount of capital error they are asked to catch, miss one.

If the issue was the fabrication of toasters (to return to our prior example), or the  licensing of automobile drivers, or the conduct of any other private-or public-sector activity, neither the consuming public nor managers and investors would tolerate the error rates and attendant costs that dozens of states and the nation as a whole have tolerated in their capital punishment systems over the course of decades. Any system with this much error and expense would be halted immediately, examined, and either reformed or scrapped. We ask taxpayers, public managers, and policymakers whether that same response is warranted here, when the issue is not the content and quality of tomorrow's breakfast but whether society has a swift and sure response to murder and whether thousands of men and women condemned for that crime in fact deserve to die.

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